Interrogating The New Harmonized Electoral Act 2006 - Some Recommendations

A.  Introduction
 
With the World Cup going on, I have now been able to sit back and watch the matches while leafing through the 78-page harmonized Electoral Act 2006 that was passed by our National Assembly on May 31, 2006, but is now awaiting assent into Law by President Obasanjo.
 
A close perusal makes it now very clear that we have some problems in our hands when we marry the requirements of the 1999 Constitution with this Electoral Act 2006.   It is really the latter that handicaps the former.
 
In the course of the discussion below, I raise several objections to the new Electoral Act, from which the following summary of fourteen recommendations emanates:
 
 1.  Election results should be announced within seven days (currently there is no stipulation whatsoever.)
 
2.  Petition against .election results should be filed within seven days (currently it is 30 days.)
 
3.  Petitions should be heard and disposed off by tribunals within fourteen days (currently there is no stipulation whatsoever.  The "accelerated hearing" clause of Section 148 of the Electoral Act 2006 is too open-ended.)
 
4.  A constitutional amendment should be done to change the window of elections from 30-60 days to 115-145 days before hand-over date, so that elections can be held in February 2007
 
5.  Section  47(a)'s reference to "day" in connection with specifying election date at least 14 days before the election day is inconsistent with Section 31(1)'s reference to 150 days prior to such a specification.  The latter reference should therefore be deleted.
 
6.  Section 53(1)(a) of Electoral Act 2006 should state more clearly the Open Secret Method to be used for elections, so that it is identical to the June 12, 1993 secret MOBS system.
 
7.  Consequently, Section 136(1)(i) and Section 63(2) which exclude lawful citizens, particularly voters, from the scene of announcement of results,  should be scrapped.
 
8.  Section 45(1) should be amended to specifically include the  "names of candidates" on the ballot paper (only name and symbol of party is currently mentioned specifically).
 
9.  Subsection 54 which provides a very useful test of the credibility of the voting in a particular polling booth or constituency should be amended to read exceeding the "number of ballot papers issued" as the test for cancellation of polls  rather than the "number of registered voters."
 
10.  Instead of an indeterminate amount of grant to political parties by INEC to be shared on a 10% equality-90%-seats-won basis, Section 91 should be amended to specifically reflect an annual grant of N5-10 billion; 20% shared on the basis of equality; during a general election year; 20% in proportion to number of candidates by each party presented to run in the National Assembly; and 60% to be shared among the registered political parties in proportion to seats won at the National Assembly; the latter being increased to 80% in non-general-election year.
 
11.  Sections 28(2) and 64(4) should be amended in the spirit of ensuring that results of all elections are not only announced and placed on INEC website, but also written up on large display boards at the polling site for all to see and digitally photograph.
 
12.  Section 50(2) should be amended to read that "The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has [delete: voted] BEEN ISSUED A BALLOT PAPER. " [Voting and being issued a ballot paper are two different matters.]
 
13.  Section 32(6) unusually punishes a political party that fields an unqualified candidate, and should be amended to include the word "knowlingly" in such an infraction that draws a N500,000 fine.
 
14.  Diaspora voting should be unambiguously empowered simply by amending Section 131(1)(c) to read " A person shall be qualified for registration as a voter if such a person....(c) is ordinarily resident in, OR works in, OR originates from the Local Government/Area Council or Ward covered by the registration centre, including such centres established outside Nigeria for the benefit of citizens abroad."
 
15.  Finally, still missing from the Act is the formal inclusion of representatives of political parties and civil society either directly into INEC, or to constitute a formally recognized Advisory Board to INEC.  
 
 B.  Election Dates and Run-Offs
 
Table 1 below lists certain dates and deadlines according to the 1999 Constitution as well as the 2006 Electoral Act (Harmonized).
 
It will be necessary in our discussion below, in order to fix ideas here, to focus on the 2007 Presidential election, despite the fact that the date has not yet been fixed by INEC.   Whenever it is fixed – as well as whenever the dates of the other elections are fixed - offsetting all the dates set out in Table 1 will be no problem.
 
For this purpose, let us fix the presidential election date as Tuesday, April 3, 2007, bearing in mind that there is a firm date (May 29, 2007) for hand-over and that there is a constitutionally-mandated period (March 30 – April 29) within 30 and 60 days of the hand-over date to conduct the presidential election.
 
The major problem then are the two constitutionally-stipulated RUN-OFFS as well as the times for petitions.   In two of my previous essays, I mistakenly thought that the Constitution said that each run-off would be "within seven days of the last election", making me to recommend April 3, 10 and 17 as a possible set of dates to conduct all of these elections, starting with the main one.   In fact, what the Constitution says is within seven days of the ANNOUNCEMENT of the results of the last election – which puts a completely different spin to it, because that depends on WHEN the election result for any one of the elections is announced!
 
If the results are ANNOUNCED on the same day as the election, then in fact the first run-off will indeed be within a week of the last election.   However, that is MOST LIKELY not to be the case.  If it always takes about ONE WEEK to announce election results – let us say the announcement is on April 10 -  then the run-off will be two weeks after the last election, on April 17 – which means that a second run-off might take place ONE MONTH after the first main election. So if the presidential election is on April 3 – and even if all the other elections are held on that one day -  we might be looking at no earlier than May 3 to conduct that second run-off, barely three weeks to the hand-over date of May 29.
 
The 2006 electoral Act also allows petitions to be filed within 30 days of any election.  (Section 141 of Electoral Act 2006.)   But what happens if a valid petitioner does petition concerning the presidential election of April 3, 2007?   He is therefore allowed up till May 3 to file the petition.    Will that hold Run-Off # 1 up?   Maybe not, since the constitution does not make room for that.  Or what happens if a petitioner validly questions the result of Run-off No.1? Will that hold Run-Off # 2 up? Maybe not.
 
And so on….
 
So in addition to delays in announcing results, there might be delays in hearing petitions about the elections that could delay things tremendously, and abut desperately on the May 29 hand-over date.   The upshot is that three presidential elections to produce one president might have occurred while petitions on the first one are still being heard!
 
How can these problems be solved?  One set of recommendations is by law; the other through constitutional amendment.
 
The first recommendation is to STIPULATE by law how soon after an election date that the results must be announced, for example no later than 7 days.
 
Section 72 should therefore read:
 
QUOTE
 
Within 7 days of an election, the Commission shall cause to be posted on its notice board and website, a notice showing –   
(a)     the candidates at the election and their scores;
(b)     the personal declared elected or retuned at the election .
 
UNQUOTE
 
 The second recommendation is to shorten by law the period after an election result is announced that a petition can be filed – for example no longer than within 7 days.   The third recommendation is to stipulate by law the length of time for which petitions should be heard and disposed of after it has been filed – for example no longer than 14 days after it has been filed. The "accelerated hearing" clause of Section 148 of the Electoral Act 2006 is too open-ended.
 
However, even with those recommendations, all of which the President can suggest before he assents to the Electoral Law 2006, we are still handicapped BOTH by the May 29 handover date and the 30-60 day election window stipulation in the Constitution. It is that window that MUST be changed by a constitutional amendment to 115-145 days without further delay, which will enable the elections to be legally held early in the month of February 2007 instead of April, buying 60 more days to do run-offs, file petitions and hear them.   Another desirable (but not absolutely necessary) constitutional amendment is to eliminate one of the two run-offs – two run-offs are simply too complicated and wasteful:   if we will accept a simple majority after the second run-off, we might as well accept it in after the first run-off!
 
 C.  Voting – Open Secret Balloting and Protecting Our Votes
 
Section 53(1)(a) of Electoral Act 2006 simply states that 
 
QUOTE
 
Voting at an election under this Act shall be by open secret ballot.
 
UNQUOTE
 
– and says no further what  that actually means and how it will be carried out.   Although in Sections 43 to 77, it goes on to describe the nature of polling stations, registration, voting and announcement procedures, it is clear that what is described is NOT the secret Modified Open Ballot System (MOBS) of June 12, 1993, and that it leaves the details entirely to the discretion of INEC.
 
In order to discern this, one will notice that the Sections 43-77 and Section 136, without specifically stating so, actually establish various PERIMETERS around a given set of particular ballot boxes:
 
(1)     the innermost polling booth perimeter, inside which the ballot boxes resides.   Only voters whose eligibility has been verified and are in the process of actually voting, or have just completed their voting, as well as lawfully-allowed persons (electoral officers, law enforcement officers, accredited observers, as defined in Section 62(1)) are allowed within that perimeter.  
 
QUOTE
 
Section 62(1)  The Presiding Officer shall regulate the admission of voters to the polling station and shall exclude all persons other than candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observes, and the Presiding Officer shall keep order and comply with the requirements of this Act at the polling station.
 
UNQUOTE
 
Once you are admitted to this perimeter as an eligible voter, you can vote after   marking your ballot and placing it in a ballot box, but you must retire to beyond the outermost perimeter – beyond a cordon (see below.)
 
(2)     an outer post-registration perimeter – inside which citizens who have been certified eligible to be eligible to vote and other lawfully-allowed persons can be within.   Only those certified can in time proceed into the polling booth perimeter.  The others must retire behind a cordon.
 
(3)     a still-outer polling station perimeter – inside which ALL citizens who have come to present themselves to enable determination of their eligibility to vote  and all other lawfully-allowed persons can be in.   Some of them will be ineligible and must retreat beyond the cordon away from this perimeter (lest they violate Section 136(1)(i); see below); those who are eligible can proceed into the post-registration perimeter.
 
(4)     an outermost cordon 300-meter  around the polling station perimeter, in which certain acts are forbidden by Section 136(1) of the Electoral Act 2006:
 
QUOTE
 
            136(1)  No person shall on the date on which an election is held do any of the
            following acts or things in a polling station or within a distance of 300 meters of a
             polling station:
 
       (a) canvass for the vote of any voter;
       (b)   solicit for the vote of any voter;
         ……..
(i)                   loiter without lawful excuse after voting or after being refused to vote.
 
UNQUOTE
 
 We should also note Section 63 of the Electoral Act:
 
QUOTE
 
63(1)  At the prescribed hour for the close of poll, the Presiding Officer shall declare the poll closed and no more person(s) shall be admitted into the Polling Station and only those already inside the Polling Station shall be allowed to vote.
 
(2)    After the declaration of the close of polls, no voter already inside the polling stations shall be permitted to remain in the polling station unless otherwise authorized by this Act .
 
UNQUOTE
 
In fact, these two subsections of Section 63 appear contradictory.
 
In any case, Section 136(1)(i) and Section 63 of this Electoral Act are precisely what militate against secret MOBS of June 12.   In that MOBS system, first there was no 300-meter cordon.   Secondly, citizens first came to line up within the polling station perimeter from (say) 8 am to 10 am, verified whether they were eligible to vote (whereupon they got a ballot paper) or not, and then retreated if they wished.   All those that could vote were then allowed to return to within the post-registration perimeter with their ballot papers at hand, and then proceeded to vote secretly into their polling box,  but  in full view of the public eye of everyone.  Announcement was in the presence of EVERYBODY in the polling station perimeter, including non-voters.
 
That is the secret MOBS of June 12, and it enabled voters themselves to hear the results and hence to protect their votes.
 
While one is not opposed to a cordon in which certain political activities are NOT permitted on election day, however it should not include the prevention of voters and non-voters from witnessing the counting and hearing the announcement of votes.
 
Consequently, first, Section 136(1)(i) and Section 63(2)  must in fact be done away with for secret MOBS to occur.
 
 D.  Miscellaneous Other Matters Arising
 
 D.1  Lack of Requirement of Name of Candidate on Ballot paper
 
Section 45(1) currently omits "name of candidate" and should be changed to read:
 
"The Commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the Political Party of the candidate, the name of the candidate, and such other information as it may require."
 
This will avoid the ridiculous situation that occurred in 2003 where names of candidates were substituted AFTER the elections had been held.
 
 D.2  Importance of Issued Ballot Papers  instead of Registered Voters
 
Section 54 reads as follows:
 
QUOTE
 
54(2)  Where the votes cast at an election in any constituency or polling station exceed the number of registered voters in that constituency or polling station, the election for that constituency or polling station shall be declared null and void by the Commission and another election shall be conducted at a date to be fixed by the Commission.
 
UNQUOTE
 
The subsection provides a very useful test of the credibility of the voting in a particular polling booth or constituency, but the test should be on the "number of ballot papers issued" rather than on the "number of registered voters."
 
 D.3  10%-90% Distribution of Grants to Political Parties
 
Section 91 of the Electoral Act reads that:
 
QUOTE
 
(1)     Notwithstanding the provisions of this Act, the National Assembly may make an annual grant to the Commission for distribution to the registered political parties to assist them in their operation.
(2)     The Commission shall distribute such grant as follows:
(a)     10% of the grant shall be shared equally among all the registered political parties;
(b)     the remaining 90% of the grant shall be shared among the registered political parties in proportion to the number of seats won by each party in the National Assembly.
 
UNQUOTE
 
With the possibility of almost 50 political parties that will be registered, and maximum allowed expenditures ranging from N500 million (for presidential election) down to N500,000 (for local government elections), 10% shared equally might turn out to be a ridiculously small amount for each party.   If for example INEC has N1 billion total amount to give as grants to parties, 50 of them would receive a mere N2 million each on the basis of 10% equal sharing!   I believe that a more reasonable sharing set of  parameters would be:
 
-         a minimum of N5 billion, but no more than N10 billion, shared ANNUALLY as public grant to all political parties;
-          20% on the basis of equality;
-          during a general election year, 20% in proportion to number of candidates by each party presented to run in the National Assembly; and
-          during a general election year, 60% to be shared among the registered political parties in proportion to seats won at the National Assembly, but increased to 80% in a non-general-election year.
 
D.4  Announcement – and DISPLAY – of results
 
According to Section 28
 
QUOTE
 
(1)     The Electoral Officer shall act as Returning officer for election to the office of Chairman of Area Council.
(2)     Results of all the elections shall be announced by –
(a)     the Presiding Officer at the Polling Station;
(b)     …..
(h) the Chief Electoral Commissioner who shall be the Returning Officer at the Presidential election.
 
UNQUOTE
 
Also Section 64(4) reads:
 
QUOTE
 
The Presiding Officer shall count and announce the result at the Polling Station.
 
UNQUOTE
 
It would be ideal if Sections 28(2) and 64(4) would read as follows (or be in the following spirit):
 
QUOTE
 
(2)  Results of all elections shall be announced, written up and left on a large display board for all to see for no longer than 2 days, and photographed, by -
 
UNQUOTE
 
 D.5  Wrong wording about voting and receipt of ballot paper.
 
QUOTE
 
Section 50(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.
 
UNQUOTE
 
Instead of the word "voted", the proper phrase is "presented himself to vote and has been issued a ballot paper."    It is conceivable that someone issued a ballot paper may not go ahead and vote.
 
 D.6   Unqualified candidate presented by a party and sanction
 
The word "knowingly" should be inserted in Section 32(6) viz:
 
QUOTE
 
A political party which KNOWINGLY presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, shall be guilty of an offence and on conviction shall be liable to a maximum fine of N500,000.
 
UNQUOTE
 
Omitting "knowingly" is pretty severe.  After all, Section 38 currently reads viz:
 
QUOTE
 
38.     Where a candidate knowingly allows himself to be nominated by more than one political party and or in more than one constituency his nomination shall be void.
 
UNQUOTE
 
D7.  Inconsistency in INEC Publication of Election Date, Hours and Polling Stations
 
According to Section 31(1) of the Electoral Act, INEC must publish date of election [and points of delivery of nomination papers] no later than150 days before PED.  However,  in Section 47, INEC is allowed to publish
 
(a) day/hours fixed for poll (b) people entitled to vote; and (c) location of polling stations only 14 days before PED.  Section 47(a)'s reference to "day" is  therefore inconsistent with Section 31(1)'s reference to "date"; the latter reference should be deleted accordingly.
 
 D.8  Diaspora Voting
 
According to the 1999 Constitution:
 
 QUOTE
 
         77. (1) Subject to the provisions of this Constitution, every Senatorial district or Federal constituency established in accordance with the provisions of this Part of this Chapter shall return a member who shall be directly elected to the Senate or the House of  Representatives in such manner  as may be prescribed by an act of the National Assembly. 
                (2) Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house, shall be entitled to be registered as a voter for that election.
 
      78. The registration of voters and the conduct of elections shall be subject to the direction and supervision of Independent National Electoral Commission.
 
 UNQUOTE
 
Strictly construed, Section 77(2) ENTITLES those Nigerian citizens "residing in Nigeria", but does not incapacitate those who are not residing in Nigeria at the time of registration.   One can surmise conclusion more keenly from the new language of Section 13(1) b-c of the Electoral Act 2006, which states that:
 
QUOTE
 
13(1)  A person shall be qualified for registration as a voter if such a person
(a)      is a citizen of Nigeria;
(b)     has attained the age of eighteen years;
(c)      is ordinarily resident, works in, originates from the Local Government/Area Council or Ward covered by the registration centre;
(d)     presents himself to the registration officers of the Commission for registration as a voter; and
(e)      is not subject to any legal incapacity to vote under any law, rule or regulation in force in Nigeria.
 
UNQUOTE
 
Thus even if those of us abroad do not ordinarily reside or work in Nigeria, we all ORIGINATE from some local Government/Area Council or Ward.   If INEC can set up registration centers abroad designated to cover ALL such local government/area councils and wards - a phrase such as "including such centres established outside of  Nigeria for the benefit of citizens abroad" can be tagged on to Section 131(1)(c) -  then it would have satisfied Section 78 of the Constitution.
 
 D.9 Composition of INEC
 
Finally, the manner of the composition of INEC wherein all members are selected by the President - thereby compromising its independence in the minds of Nigerian citizens - has not been addressed by this Electoral Act.   The formal inclusion of representatives of political parties and civil society either directly into INEC is most essential, or at the very minimum the constitution of a formally recognized Advisory Board to INEC comprising such persons.  
 
 E.  Epilogue
 
One hopes that the above considerations will be seriously made before presidential assent is given to Electoral Act 2006 before it becomes law.
 
 _______________________________________________________________________________________________________________
 
 Bibliography:
 
1.  Electoral Act 2006:  http://www.nigerianmuse.com/important_documents/Electoral_%20Act_2006_Harmonized.doc
2.  1999 Nigerian Constitution:   http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm
 
 _____________________________________________________________________________________________________________
 
 Table 1:  Key Deadlines Outlined in Harmonized Electoral Act 2006
 
Legend:
Electoral Act 2006 - EA2006 (passed by National Assembly on May 31, 2006; yet to be assented to by the President)
Presidential Election Day – PED (assumed here to be April 3, 2007, but yet to be announced by INEC)
Hand-Over Day – H-OD (taken to be May 29, 2007)
 
Date 
 Event
 
2006
 Wednesday, May 31
Electoral Law 2006 [Harmonized]
passed by National Assembly
 ????????
Assent by President Obasanjo ?
 
August 31
Deadline for INEC to submit
Budget for activities for following
Year 2007 [Section 6(1) of EA2006]
 
Tuesday, October 5
180 days before PED:
1.  Political parties intending to be registered must submit their
applications not later than six months before PED [Section 78(1)]
1.  Political parties intending to merge must give six months notice
to INEC before PED  [Section 84(2)]
 
 Saturday, November 4
150 days before PED:
1.  Not later than 150 days before PED,
INEC must publish date of election and
where nomination papers are to be delivered [Section 31(1)]
 
 Wednesday, December 4
120 days before PED
1.  Registration of voters that will vote  not
later than 120 days before PED [Section 10(5)]…..but
registration must continue [since it is continuous; Section 10(1)]
2. Party must submit list of candidates to
INEC not later than 120 days before PED [Section 32(1)]
3. INEC must publish particulars within  7 days after receipt.
[Section 32(3)]
 
2007
 Wednesday, January 3
90 days before PED:
1.  Parties to submit audited account [Section 89(1)]
2.  Public campaign by parties can begin;
to last only 90 days and end 24 hours to poll opening
[Section 101(a)]
 Tuesday, January 23
70 days before PED:
1.  Candidate can withdraw his candidature [Section 36(1)]
Friday, February 2
60 days before PED:
1.  Not later than 60 days before PED,
supplementary voters' list shall be integrated
with the voters' register and published [Section 21]
2. Parties can signify intent to change its
candidate not later than 60 days before PED [Section 34(1)]
3. Party can change a withdrawn candidate not
later than 60 days before PED [Section 36(2)]
 
Thursday, March 1
Within 60 days after each year:
1.  INEC must make names, addresses of all
registered persons during 2006 available
to every political party [Section 11(1)(b)]
Sunday March 4
30 days before PED
1.  INEC to publish by display full names of
all candidates standing nominated  [Section 35]
2. No duplicate voter's card issued on polling day or within 30 days
of PED [Section 19(3)]
 
 Tuesday, March 20
14 days before PED
1. INEC shall publish
(a) day/hours fixed for poll
(b) people entitled to vote; and
(c) location of polling stations.  [See Section 47]
2.  Election tribunals shall be set up
not later than 14 days before PED [Section 140(3)]
Tuesday March 27
7 days before PED:
1.  Each political party to submit names and
addresses of its polling agents [Section 46(1)]
Friday, March 30
60 days before H-OD
1.  Presidential elections cannot be held
earlier than this date (by 1999 Constitution)
Monday April 2
Public campaign ends on this day
Tuesday April 3
Presidential Election Day
 
????????????
PED Results Announced – when?
Date of announcement uncertain
 
Election petition to be filed within
30 days for results declaration [Section 141]
????????????
Run-off # 1 – 7 days after PED
Results are announced – by 1999 Constitution.
Date of announcement uncertain
 
Election petition can be filed within 30
days for results declaration  [Section 141]
????????????
Run-off # 2 - 14 days after PED Run-off # 1 announced
Date of announcement uncertain
 
Election petition can be filed within 30 days
for results declaration  [Section 141]
 Sunday, April 29
30 days before HOD
1.  Presidential elections cannot be held later
than this date (by 1999 Constitution)
 
 Tuesday May 29
Hand-Over Date (HOD) to Administration