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Electoral Bill 2021: Convergence, divergence, and dilemmas

Despite the controversies trailing the amendment process, both chambers voted for several legal...

By Samson Itodo

As the world eagerly anticipates Africa’s biggest election in 2023, policy capture, process manipulation, and geo-politics are defining the electoral framework reform process as veto players exercise their preferences for policy outcomes. As custodians of public interest, the National Assembly and the executive arm of government bear the burden of ensuring that the current reform process produces sustainable reforms, not ephemeral outcomes.

In July 2021, the National Assembly passed the Bill under controversial circumstances. In the House of Representatives, opposition lawmakers staged a walkout. At the same time, the Senate passed a controversial vote to subject INEC’s constitutional power to electronically transmit election results to the approval of the National Assembly and the Nigerian Communications Commission (NCC), a body unknown to the country’s constitution. Overall, there were points of convergence and divergence in the voting patterns of legislators.

Despite the controversies trailing the amendment process, both chambers voted for several legal prescriptions in the Electoral Bill 2021 that will undeniably enhance the quality of the elections if strictly implemented.

A comprehensive breakdown of the timelines in the Bill shows that key electoral activities have been altered to address the logistical challenges posed by unrealistic timeframes in the current electoral act. To encourage early primaries, the compilation and submission of the list of candidates are concluded in time to give enough room for planning and printing sensitive electoral materials. The timeframe for submitting the list of candidates to INEC is extended from 60 days to 180 days before the date appointed for a general election. By this provision, all party primaries for the 2023 general election will be concluded by August 2022.

The voting pattern in the Senate and House of Reps indicates legislators diverged on sixteen clauses in the Bill. As evinced in the voting pattern, most legislators voted to advance partisan interests at the expense of public interest. However, this analysis focuses on three main issues which are pertinent to the ongoing reforms and the future of Nigeria’s electoral process

Electronic accreditation of voters: The Bill makes provisions for electronic accreditation of voters using the Smart Card Readers or any technological device as may be determined by INEC. While both chambers voted in favour of electronic accreditation of voters, the House of Representatives redrafted the provision and deleted the phrase ‘any technological device’ based on a motion for amendment moved by the Speaker of the House, Rt. Hon Femi Gbajabiamila. The House of Representatives position is too constricting and counterproductive, as it will undoubtedly impede INEC’s ability to deploy new technologies for voter accreditation.

Electronic transmission of results: In line with constitutional practice, the Bill conferred INEC with the powers to determine the procedure for election results transmission. While the House of Representatives adopted the provision of the Bill, the Senate voted to subject INEC’s power to transmit election results electronically to the approval of the National Assembly and the NCC. By all standards, the Senate’s position amounts to a constitutional overreach as it violates Section 78 and Third Schedule Part 1(F) S.15 of the constitution, which stipulates that INEC shall not be subject to the direction of anybody or authority. INEC and other stakeholders have strongly condemned the Senate and urged the harmonization committee when constituted to adopt the House of Representative’s position. A recent report released by Yiaga Africa contradicts the NCC’s position that Nigeria is ill-prepared for electronic transmission of results. Data from the 2019 Presidential Election Parallel Vote Tabulation (PVT) shows that election results were transmitted electronically from the polling unit using the Smart Card readers. Since August 2020, INEC has conducted elections and transmitted election results from 20 States and the FCT, covering 26 constituencies spread across 83 LGAs. The Yiaga Africa report validates INEC’s position on its preparedness to deploy technology to transmit election results fully. Unfortunately, the Senate insists on retaining its position on e-transmission of results.

Nomination of candidates by parties: Based on a motion for amendment moved by the Speaker of the House, the House of Representatives voted to expunge ‘indirect primaries’ as a mode for the nomination of candidates.

The arena of political action will shift from the legislature to the Presidency as soon as the divergent positions are harmonized. As the harmonization process begins, the committee is expected to navigate four dilemmas. First, whose interest should the electoral law serve? Public interest or the deeply entrenched partisan interests of politicians? Second, what level of deliberate discretion should be granted to INEC to determine the procedure for elections? Won’t it amount to legislative overkill to maintain an overly prescriptive approach in an electoral law? Third, how can the high demand for electoral technology be managed against its potential risks to democracy? Lastly, what trade-offs will both chambers make to reach a consensus, given the strong divergent positions on the three crucial amendments highlighted in this article and the political heavyweights behind the proposed amendments?

Public interest should always supersede partisan private interests. As custodians of the public interest, elected representatives are required to respect the will of the people when making laws. Jettisoning amendments like electronic transmission of results and electronic voting will betray public trust considering the current realities and the clamour for these rules. Vesting discretionary and rule-making powers on INEC in certain circumstances promotes innovation, creativity, and institutional responsiveness to rapid transformations in the electoral space, especially with respect to the digitization of the electoral process. No doubt, electoral technology will improve the integrity of elections, but it presents no guarantee that elections will stay clean. Nigeria cannot afford to surrender her democracy to machines; therefore, maximum safeguards must be instituted when deploying electoral technology.

In the final analysis, reform negotiation and implementation is a highly politicized process and a marketplace for political trade-offs and winsets. The big question is whether legislators see this reform process as an opportunity to reconnect the state to citizens or a window to change the rules of the game to guarantee their victory in the next elections. The riposte I consider viable is sustained external pressure from citizens, without which the chances of long-lasting outcomes are slim.

Itodo is the Executive Director of Yiaga Africa and the Convener of the Not Too Young To Run movement.

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