*Why judiciary and citizen activism must hold sway
*Sections of the Electoral Act you must know
This report examines why, even with the celebrated Electoral Act 2022, there are reasons it is not yet Uhuru in the electoral sphere. This report will show why Nigerians should be watchful and committed to following through on citizen activism in order to ensure that provisions of the Act are strictly followed with a view to having free, fair, and credible elections next year.
In this first of many series to come, we present some salient sections of the Electioral Act 2022 which should chart pathways to a process devoid of foul play.
2023: On the march again! To appreciate the gloom-overhang on the 2023 general elections and the political intrigues being hatched in some quarters, all Nigerians need to do is cast their minds back to how the seed for the annullment of the June 12, presidential election was sowed. With the quantum of innovations by the Independent National Electoral Commission, INEC, in its determination to birth a free, fair and credible election next year, the educated expectation is that the elections should signpost a new beginning for Nigeria in the sphere of electoral engagement with a better process of choosing future leaders at the polls.
Specifically, with the Electoral Act 2022, which President Muhammadu Buhari finally signed into law this year, and its many process-specific provisions, Nigerians expect to have better elections next year. But the ghost of the June 12 annulment continues to hang over hopes and expectations. Not necessarily about a possible annulment, but there are strong indications that some politicians are working to ambush the process and cause some of the innovations in the Electoral Act 2022 to be abandoned. Wild and complex as such a reality is, nothing can be put past power hungry poltiicians.
Foundation for annulment of June 12
For institutional recollection, the following represents how the foundation for the annulment of the June 12 presidential election was laid:
Dateline: Abuja, 9pm, Thursday, July 10, 1993. That was the unholy hour Justice Basey Ikpeme chose to launch her voyage into infamy. Though an interlocutory application, filed by the Association for Better Nigeria, ABN, led by Francis Arthur Nzeribe and one Abimbola Davies, Ikpeme, apparently over-mobilised and over-induced, made a ”final” pronouncement. This was less than 36hours to the June 12, 1993, presidential election and this was in flagrant disregard of the provisions Section 19(1) of Decree 13 of 1993.
Excerpts from a detailed report by Richard Akinola, published in Vanguard in 2018, asserts: “The Plaintiff in the case, Davis on behalf of the Association for Better Nigeria, ABN, had alleged electoral corruption on the part of the SDP candidate, Bashorun M.K.O. Abiola, at the SDP primaries in Jos, between March 27 and 29, 1993. Before her ruling ex-parte at 9 pm in the night of June 10, 1993, there were flurries of activities between Justice Ikpeme’s court chambers and the Office of the Attorney-General, leading to the postponement of the ruling from morning to night. This led to speculations that the ruling may have been written for the judge by Mr. Akpamgbo, the Attorney-General. In the ruling, Justice Ikpeme not only stopped the election but also got carried away by the interests she wanted to serve by making “final” pronouncement on the case even at an Interlocutory level. The allegations ABN leveled against some of the state governments at the primaries, Justice Ikpeme held, was “the greatest shame in the history of Nigeria’s politics”! For a judge to make this outlandish statement at the ex-parte stage of the case when the other party (NEC) had not been heard, exposed the judicial conspiracy in the whole saga.
This was confirmed by Mr. Davis himself in his confession when he addressed a press conference. Confusion cradled the nation in its hands. The NEC promptly issued a statement, disregarding the court order, stating that the election would go on as scheduled. Meanwhile, NEC filed a counter-affidavit that the jurisdiction of the court had been ousted by Section 19(1) of Decree 13 of 1993. It did not only hold the election as scheduled but also started releasing the results”. But on June 23, 1993, the election was annuled. Nigeria is yet to recover.
Why Nigerians must be concerned today
Section 19(1) of Decree 13 of 1993, an addition to the Transition To Civil Rule Decree of 1987/’88, specifically ousted the intervention of the courts in the affairs of the then National Electoral Commission, NEC. But that did not matter to the clique (call it cabal) of that era which included but was not limited to the Attorney General of the Federation and Minister of Justice and a national security chief along with a handful of greedy politicians who used the instrumentality of the ABN to disrupt the process.
In late August of this year, the spokes person for the Coference of United Political Parties, CUPP, Ikenga Imo Ugochinyere, made some startling revelations on how some politicians were already piling pressure on the leadership of INEC to compromise next year’s elections. Outlandish as some have described some of this claims, including a court process instituted to stop the use of the Bimodal Voter Accreditation System, BVAS, the Chairman of INEC, Prof. Mahmoud Yakubu, has addressed some of the issue Ugochinyere raised. Next year’s presidential election will make or mar the Nigerian state and the front runners are already known – Atiku Abubakar of the Peoples Democratic Party, PDP; Bola Tinubu of the All Progressives Congress, APC; Peter Obi of the Labour Party, LP; and Rabiu Musa Kwankwaso of the New Nigeria Peoples Party, NNPP. Well, there is Prince Adebayo of the Social Democratic Party, SDP; and Dumebi of the African Democratic Congress, ADC, also putting up appearances. But the intensity of the campaigns and mobilisation of the masses to participate on election day may not stop at voting and counting alone.
The fidelity of the judiciary, the security agencies and staff of INEC would be required to ensure free and fair elections.
Electoral Act 2022 as an elixir
The 2023 elections are just three/four months away. The 2022 Electoral Act and INEC’s Regulations and Guidelines are principally the governing laws that would guide preparations, as well as deployment of INEC innovations for a credible election. But then, what should Nigerians know about the 2022 Act and the procedures at polling units, collation centres from Wards, LGAs to the last centre of declaration of the winner of election?
In particular, what are the novel provisions of the 2022 Act and specific innovations that would guarantee a credible poll? Apart from INEC, what should be the role of other personnel of key institutions of state like security agencies with the flag off of political campaigns, the judiciary (and controversial judgments on party primaries, political parties, candidates), citizens, CSOs and the media, to achieve a hitch-free election?
With a total of 176,846 Polling Units, PUs, the work of INEC is well laid.
What this means is that INEC would be needing not just a total of 176,846 staff to be present at each of the PUs but a total of 1.4million Nigerians, according to INEC’s Chairman. Each of these Nigerians to be engaged by INEC have specific roles to play as enshrined in the 2022 Electoral Act. The total staff strength of INEC is less thatn 5% of 1.4million. What this means is that over 95% of those to be engaged by the Commission are ordinary Nigerians who are expected to buy into the new paradigm of advancing the cause of electoral fidelity. This also means the election of next year is in the hands of Nigerians and not necessarily INEC. The bulk of those to be deployed are youths and since they are the ones supposedly yearning the most for a better Nigeria, next year’s election and the roles they play would determine the outcome of this litmus test.
Yet, innovative as some of the provisins of the 2022 Act is, the 2007 guidelines provided by INEC were also very good but delivered what many have come to describe as the worst election ever in the history of Nigeria. But at the heart of the operations are the individuals who would oversee the process. The role of the security agencies is also key. Finally, the judiciary that is expected to interpret the provisions of the Act remains the final bus stop. It is what the judiciary makes of its interpretation that will determine, to a very large extent, the goodness of the 2022 Electoral Act.
Polling Unit (PU) becomes centre of universe
Under the new 2022 Act, PUs have now been strengthened and made the centre of universe where elections are won and lost in the following step by step procedure as provided for in Section 70 of the 2022 Electoral Act which talks about the Step-by-step recording of poll.
Subject to the provisions of this Act, the Commission shall issue and publish in the Federal Government gazette, guidelines for the election, which shall make provisions, among other things, for the step-by-step recording of the poll in the electoral forms as may be prescribed beginning from the PU to the last collation centre for the ward or constituency where the result of the election shall be declared.
For Section 47, every voter must (mandatorilly) be accredited with the use of Bimodal Accreditation system machine (BVAS) for verification and confirmation of the voter (biometrics) and in the unlikely failure, then facial. This is why its called biomodal. All these must be witnessed by party/candidates agents, seated at the polling units to observe the proceedings. This has put an end to the use of incident forms used for rigging. If a voter cannot be confirmed with the BVAS, such voter will be asked to leave the voting arena.
Section 43 states: (Polling Agents)
“Each political party in consultation with its candidates, may, by notice in writing addressed to the Resident Electoral Commissioner of the state, appoint a Polling Agent for each Polling Unit and collation centre in the Local Government Area or Area Council for which it has candidates and the notice, which set out the name, address and contact details of the Polling Agent shall be accompanied by two passport pics of each Polling Agent and sample signature of the Polling Agent and be given to the Electoral Officer at least 14days before the day fixed for the election:
“Provided that no person who is serving as Chairman or member of a Local Government Area or Area Council, Commissioner, Depty Gov, or Gov of a state, minister of the Federal Government, or any other person holding elective or appointive political office under any tier of government and who has not resigned from his office at least three months prior to the said election shall serve as a Polling Agent of any Political Party, either at the Polling Unit or at any centre designated for collation of resukts of elections.
Not withstanding the rquirement of such section (1), a candidate shall not be precluded from doing any act or thin which his Political Party, in consultation with him, has appointed a Polling Agent to do on his/her behalf under this act.
“Where in this Act, an act or thin is required or authorised to be done by or in the presence of a Polling Agent the non-attendance of the Polling Agent at the time and place appointed for the act or thin or refusal by the Polling Agent to do the act or thin shall not, if the act or thin is otherwise done properly, invalidate the act or thin”.
This is where the Polling Agents are king in their own right. Their role is important except otherwise when compromised. There have been stories of dominant political parties nominating Polling Agents for other parties for some PUs such that the PU is compromised totally once all the agents are there to do the bidding of a political party. With the 2022 Act, the entire Polling Agents at a PU would have to be in on the rigging for one political party before rigging can occur. But then, BVAS would remain the issue because records of accreditation using the Card Reader would have to tally with the number of total votes for the PU.
Section 47 states: (Accreditation of Voters and Voting)
1.“A person intending to vote in an election shall present himself with his Voter Card to a Presiding Officer for accreditation at the Polling Unit in the constituency in which his name is registered
2.“To vote, the Presiding Officer shall use a Smart Card Reader or any other technologival devise that may be prescribed by te Commission for the accreditation of voters to verify, confirm or authenticate the particulars of the intending voter, in the manner prescribed by the Commission
3.“Where a Smart Card Reader or any other technological device deployed for accreditation of voter fails to function in a the unit and a fresh Card Reader or technological device is not deployed, the election in that unit shall be canceled and another election election shall be scheduled within 24hours if the Commission is satisfied that the result of the election in that Polling Unit will substantially affect the final result of the whole election and declraration of a winner in the constituency concerned.”
What this provision has done is to scoff at the idea of politicians ensuring that elections in an area is disrupted to pave way for a rerun. With the BVAS, even the rerun would have to be conducted in accordance with the provisions of the Act which expressly stipulates how voters can be accredited for voting. This has put paid to a situation where elections are disrupted and the dominant party per violence would overrun the rerun process and write figures to wipe off margins of defeat earleir recorded.
With BVAS accreditation, every voter must be accredited properly before being allowed to vote. That way, latching onto the provision which says once the margin of victory is less than the total number of registered voters in any area where elections are disrupted for a rerun would be an exercise in futility because human beings, registered voters who present themselves at the PUs are the ones who would be allowed to vote; as against the notorious practice of figure-writing to wipe off deficits.
Section 60 states: (counting of votes and forms)
1.“The presiding officer shall, after counting the votes at the Polling Unit enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.
2.“The form shall be signed and stamped by the Presiding Officer and counter-signed by the candidates or their Polling Agent where available at the Polling Unit.
3.“The Presiding Officer shall give to the Polling Agents and the police officer, where available, a copy of each of the completed forms after it has been duly signed provided under sub-section(2).
4.“The Presiding Officer shall count and announce the result at the Polling Unit.
5.The Presiding Officer shall transfer the results including total number of acfredited voters and the result of the ballot in a a manner as prescribed by the Commission.
6.“A Presiding Officer who wilfully contravenes any provision of this section commits an offence and is liable on conviction to a fine not more than N500,000 or imprisonment for a term of at least six months”.
What part of Section 43 of the Act (Provided that no person who is serving as Chairman or member of a Local Government Area or Area Council, Commissioner, Depty Gov, or Gov of a state, minister of the Federal Government, or any other person holding elective or appointive political office under any tier of govt and who has not resigned from his office at least three months prior to the said election shall serve as a Polling Agent of any Political Party, either at the Polling Unit or at any centre designated for collation of resukts of elections) seeks to discourage, as others before it, is a situiation where government officials, either ellected of appointed, would take over activities at the Polling Units.
In the case of late Governor Segun Agagu of Ondo State, some of the agents who signed some of the result sheets, in their haste to demonstrate loyalty and commitment, were some appointees of the Agagu administration. All the result sheets signed by the appointees as Polling Agents were nullified and this, largely, reduced Agagu’s votes, thereby paving the way for Segun Mimiko to emerge victorious at the tribunal.
Vanguard