Across the globe, the conduct of elections is important because it is the only way citizens in a democratic setting elect their representatives into different political positions of authority to pilot the affairs of their country.
One of the major principles of democracy is that the authority of the government can only be derived from the will of the people. This is echoed in Section 14(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria.
“The sovereignty belongs to the people of Nigeria from whom the government through this Constitution derives all its powers and authority.”
Another principle is that elections must be conducted in a free and fair manner and the electoral results should reflect the wishes of the people.
In Nigeria, the Constitution and the Electoral Act provide the legal framework for the conduct of credible, free, and fair elections in the country.
While the Constitution is the grundnorm, the Electoral Act provides for the structure of the Independent National Electoral Commission (INEC), its powers and guidelines for registering voters, procedures for the conduct of elections, the registration and regulation of political parties, electoral offences, the determination of election offences, among others.
Nigeria returned to civilian rule in 1999 and passed its first Electoral Act in 2001. The Act was amended in 2002, 2006, and 2010, respectively. After every election, there have been attempts to amend the Electoral Act. The reason for this is usually to address issues noticed during the elections and to ensure the next election is better.
Explaining some of the key amendments, Otive Igbuzor, a Policy Analyst and Development Expert noted that the 2006 Electoral Act amendment empowered INEC to appoint its Secretary, undertake voter education and prosecute offenders.
He also explained that the 2010 Electoral Act streamlined the powers of INEC to regulate political parties, in particular, the process of nominating through party primaries; new benchmarks for campaign expenditures. It also empowered the Electoral Commission to deregister political parties on certain conditions provided in the law as well as the announcement and posting of election results at polling stations among other provisions.
After the 2015 general election that brought President Buhari to office, there have been several attempts to amend the Electoral Act to take care of some of the issues noticed in previous elections and make certain provisions that are believed will enhance the conduct of elections in Nigeria. However, the efforts have not yielded the expected outcomes/results as the President has withheld assent citing some reasons.
Timeline of President Buhari’s Withholding Assent to Electoral Act Amendments
Dataphyte looks at the different times the Electoral Amendment Bill was submitted to President Buhari for assent but he withheld, and the reasons he gave for that.
In 2018 alone, Mr Buhari rejected the proposed amendments to the Electoral Act four times. For the four times he withheld assent, the reasons he gave ranged from irregularities to drafting issues, sequence of elections to the phrasing of words in parts of the then proposed Bill.
The first time Buhari withheld assent to the Electoral Bill was in February 2018. The President cited the re-ordering of the sequence of elections as the reason for the rejection of the Bill.
In June same year, the Amendment Bill was passed by both chambers of the National Assembly and transmitted to Buhari. This time around the Bill was not given any consideration by the President.
In July 2018, Buhari again refused to sign another version of the Electoral Amendment Bill that was passed and transmitted to him by the national lawmakers. This time, he stated the increased cost of conducting elections, among others as reasons for not signing the Bill.
For the fourth time in December 2018, President Buhari declined assent to the Amendment Bill despite the fact that the National Assembly had addressed all the reasons he gave for withholding assent on the other occasions.
The final “excuses” the President gave for not signing the Electoral Bill that would have perhaps given the country a better election in 2019 was that there would be no time to effect the amendments before the general elections. Thus, could create uncertainty and confusion.
This was stated in his letter to Yakubu Dogara, the then-Speaker of the House of Representatives. A part of the letter read thus:
“Pursuant to section 58 (4) of Constitution of the Federal Republic of Nigeria 1999 (as amended), I hereby convey to the House of Representatives, my decision on 6th December 2018 to decline Presidential Assent to the Electoral (Amendment) Bill, 2018 recently passed by the National Assembly.
I am declining assent to the Bill principally because I am concerned that passing a new electoral bill this far into the electoral process for the 2019 general elections which commenced under the 2015 Electoral Act, could create some uncertainty about the applicable legislation to govern the process.
Any real or apparent change to the rules this close to the election may provide an opportunity for disruption and confusion in respect of which law governs the electoral process.
This leads me to believe that it is in the best interest of the country and our democracy for the national assembly to specifically state in the Bill, that the Electoral Act will come into effect and be applicable to elections commencing after the 2019 General Elections.”
Whichever way the reason was viewed from the different camps is another thing but the main issue was that in the end, no amendment to the Electoral Bill took place.
Thus, the 2019 general election was conducted with the same old electoral framework that stakeholders wanted the legislature to amend.
Another process of amendment began again after the 2019 elections under the 9th Assembly. On November 19, 2021, the National Assembly finally transmitted the Electoral Act Amendment Bill to the President for assent.
Section 58(4) of the 1999 Constitution of the Federal Republic of Nigeria states that “Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or withholds assent.”
On several occasions, Buhari had promised Nigerians that he would reform and strengthen the country’s democracy and electoral processes. Because of this, Nigerians were hopeful that he would sign the Bill which is believed to give the country a more free and fair election.
However, Mr Buhari has refused to sign the Bill after exhausting the 30 days window as stipulated in the Constitution. In his letter to the National Assembly, he cited the cost of conducting direct primaries, infringement on the rights of Nigerians to participate in governance and security as reasons for rejecting the bill.
Put together, the last rejection made it the fifth time Buhari has declined assent to the Electoral Amendment Bill between 2018-2021, despite his promise to reform and strengthen the electoral system.
In an interview in January, Buhari said that he will sign the Electoral Bill if the issues he raised (i.e. issues of direct and indirect primaries) could be reviewed.
He promised that if this could be reviewed to allow for both direct and indirect primaries, he would give his assent
“I will sign. All I would like is that there should be options. You can’t dictate to people and say you are doing democracy. Allow them other options so that they can make a choice. I don’t support direct primaries because I want people to be given a choice. There should be options. We must not insist that it should be direct. There should be consensus and indirect”, the President said.
In view of this, the National Assembly reworked the Electoral Amendment Bill, particularly the clauses the President raised concerns about, and transmitted it to the President for assent on January 31, 2022.
However, the President is yet to grant assent. Although he is still within the 30 days window as stated in Section 58(4) of the 1999 Constitution of the Federal Republic of Nigeria, there are concerns and fears about what the delay may cause.
One of such issues is the possible change of the date of the election which is already scheduled to be held on February 18, 2023, according to the Chairman of INEC, Prof Mahmood Yakubu.
According to Clause 28(1) of the Electoral Amendment Bill, 2022, INEC is required to issue a notice of election not later than 360 days before the appointed date for an election.
Since INEC has scheduled the 2023 Presidential and National Assembly Elections for February 18, 2023, going by Clause 28(1) of the Electoral Amendment Bill, which Nigerians are hoping on the President to sign, the deadline for the issue of the notice of the election is meant to be today, February 22, 2022. But if the President withholds assent to the Bill today which is by the way he is still within the law, then INEC will have to change the scheduled date it has announced for the 2023 general election. Samson Itodo noted that the change will also affect other subsequent electoral activities.
This concern and the fear that the Bill may not be signed, thus leaving INEC to use the Electoral Act, 2010 to conduct the 2023 general elections has made some 26 Civil Society Organizations (CSOs) declare today a national protest day to call on the President to sign the Electoral Bill which they believe will give Nigerians a credible election in 2023.
In fact, in a Twitter space where Samson Itodo spoke today, he mentioned that conducting the forthcoming election with the current Electoral Act will be gloomy and will not confer any legitimacy on the election.