The Black’s Law Dictionary defines election as the process of selecting a person to occupy an office. Whether in a developed or developing country, the electoral process is an ideal and essential component of democracy.
Maladministration or poor governance is largely due to a failed electoral system which ushered in such a government in the first place.
The Electoral process in Nigeria is regulated by three major instruments viz: the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act 2022 as well as regulations and Guidelines for the Conduct of Elections issued by the Independent National Electoral Commission (INEC).
On February 25, 2022, President Muhammadu Buhari signed the much anticipated and somewhat contentious Electoral Act Amendment Bill into law.
Before we proceed, it must be noted that the body responsible for conducting elections in Nigeria is the Independent National Electoral Commission (INEC) established under Section 153(1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) with the mandate to conduct elections in Nigeria for the offices of President, Vice President, Members of the National Assembly (both the Senate and House of Representatives), Governors, Deputy Governors, and members of State Houses of Assembly. The functions of INEC as set out in section 2 of the Electoral Act 2022 include: conducting voters and civic education, promoting knowledge of sound democratic election processes and conducting any referendum required to be conducted under the provision of the Constitution or an Act of the National Assembly.
This study will examine the key innovative provisions of the Electoral Act 2022, particularly as they relate to the electoral process which encompasses the conduct of elections with a view to ascertaining whether there are improvements under the new electoral legal regime.
KEY INNOVATIONS UNDER THE ELECTORAL ACT 2022
The main innovations under the Electoral Act 2022 include:
By virtue of Section 50 of the Act, INEC is empowered to conduct voting through open secret ballot and transmit the results in accordance with any procedure determined by it. This literally translates to mean that results are meant to be transmitted electronically. This is an improvement from the Electoral Act of 2010 which expressly prohibited the use of electronic voting machines.
The time frame for the funds to be released to INEC by the Federal Government has now been specified in Section 3(3) of the Electoral Act 2022. The said Section stipulates that at least a year prior to the election, the Commission must receive the funds for general elections. The 2010 Act did not have such a time frame.
According to Section 9 of the 2022 Act, the Commission is required to maintain the Register of Voters at its National Headquarters and other places, both in manual or hardcopy version and in electronic format in a centralized database. This Register was only maintained manually or in paper form under the previous Act.
Section 47(2)&(3) allows the use of smart card reader and other technological devices that may be deployed by INEC. This is to prevent multiple voting, and promote the transparency, accuracy and integrity of votes. It should be noted that INEC had earlier taken the initiative to provide for the use of smart card reader in its regulations and guidelines for the conduct of previous elections. However, in Nyesom v Peterside, the Supreme Court of Nigeria held that INEC directives, guidelines and manual, which provided for the use of card reader machines, cannot be elevated above the provisions of the Electoral Act, so as to eliminate manual accreditation of voters. This remained the position of the law until the enactment of the Electoral Act 2022, which now alters the decision of the Supreme Court in respect of card reader machines.
According to Section 28 of the new Act, the Commission must publish a notice in each State of the Federation and the Federal Capital Territory not later than 360 days prior to the day designated for holding an election, stating the date of the election and designating the location at which nomination papers are to be delivered. This goes against the 90 days that the 2010 Act stipulated. In order to allow the Commission and the political parties additional time to be ready for the election, the deadline has been extended.
Under section 29(1) of the new Act, political parties are required to conduct primary elections within their parties and tender their lists of candidates for each office at least 180 days before the date slated for the general elections. This is an innovation from the 60 days as required under the old Act.
Section 34 gives political parties the authority to hold primaries to choose a running mate who would represent the party in elections for the executive branch of government and to replace a candidate who passed away during a legislative election. By sub-section (3) of the said section, if a candidate passes away after polls have opened and before the final results are announced and a winner is declared, the Commission will suspend the election for a maximum of 21 days. If a legislative House is being chosen, the election will then begin again, and the political party whose candidate passed away may hold a new primary if it plans to continue running candidates. In the case of presidential or gubernatorial or Federal Capital Territory Area Council election, the running mate shall continue with the election and nominate a new running mate.
The INEC can now accredit voters using smart card readers and any other voter accreditation technology it chooses because Section 47 has given it the legal support it needs. The majority of the elections cases that were thrown out were based on the fact that the 2010 Act did not include any provisions for the use of card readers or any other voter accreditation technology and only permits manual accreditation, according to an observation of the Election Petition cases conducted after the 2019 general election.
In accordance with Section 65 of the new Act, INEC is authorized to examine election-related decisions made by returning officers. According to the 2010 Electoral Act, the returning officer’s decision was final on any issue originating from or relating to unmarked ballot paper, rejected ballot paper, the declaration of the results of the election, and the return of a candidate. Prior to the 2022 Act, such a decision could only be appealed in an election petition procedure before an election tribunal or court of competent jurisdiction.
The window for public campaigning by all political parties has been expanded by Section 94 to start 150 days before Election Day and terminate 24 hours beforehand. With the implementation of this clause, the campaign period will now begin 150 days before Election Day and end24 hours before the Election Day. This is contrary to the previous 90-day term stipulated by Section 99 of the 2010 Act.
VOTING UNDER THE ELECTORAL ACT 2022
There are three stages of voting under the Electoral Act 2022. These stages include:
As earlier stated, the Independent National Electoral Commission is required to issue a notice of election not later than 360 days before the day fixed for the conduct of the election. At the accreditation stage, the electorate is required to confirm his eligibility to vote at a particular polling unit by confirming his name from the Register of Voters usually pasted at his designated polling unit. No person shall be permitted to vote at any polling unit other than the one to which he or she is allotted. At this point, an electorate who intends to vote must have completed the voters’ registration requirement and has obtained his Permanent Voters Card (PVC) which serves as the only technology to which a person can participate in the voting process. Upon confirmation of name on the Register of Voters, the electorate is required to undertake a Bimodal Voter Accreditation using the Bimodal Voter Accreditation System (BVAs) – an electronic device which is programmed to read the PVCs and authenticate voters. This exercise is to be carried out by the Presiding Officer of the polling unit in question and completes the first stage of voting.
Polling (Actual voting) Stage:
Section 38 of the Electoral Act requires that a poll shall be required when the office of the President or Governor of a state whether or not only one person is validly nominated in respect of such office and for any other office; if after the expiry of the time for delivery of nomination papers, there is more than one person standing nominated. The implication of the foregoing is that there shall be a poll for the office of president or governor whether or not only one person is validly nominated for such office. Another instance where there shall be a poll for other offices is when there is more than one valid nomination for such office. Consequently, upon accreditation at the polling unit, the electorate shall be given ballot papers as provided by the INEC for conduct of elections. The ballot papers shall bear the symbols adopted by each of the political party in a manner as prescribed by the Commission. Upon possession of the ballot paper, the electorate is expected to affix his finger impression against the political party of his choice. Any finger can be used but such a finger must not cross over the border lines provided for a particular party as may be prescribed by the Commission. Voting for more than one party is not allowed as it amounts to invalid vote. The Electoral Act prescribes for an Open Secret Ballot polling model which requires that all ballots at the election shall be deposited in the ballot box in the open view of the public. By virtue of section 59 of the Act, the Presiding Officer is expected to declare a poll closed at the prescribed hour for the close of poll. When that happens, no other person shall be allowed entrance into the polling unit except those already present before the close of poll.
Announcement of Results Stage:
After the polling is completed, the electorates may decide to either go home or wait behind for the announcement of results. This stage completes the voting stage. The presiding officer is mandated to count the votes at the polling unit and enter the votes scored by each candidate in a form to be prescribed by the commission as the case may be. The form shall be signed and stamped by the presiding officer and counter signed by the candidates or their polling agents where available at the polling unit. The Electoral Act mandates the results of all the elections to be announced by the:
Presiding officer at the polling unit;
Ward Collation Officer at the registration area or Ward Collation Centre;
Local Government or Area Council collation Officer at the Local Government or Area Council Collation Centre; and
State Collation Officer at the State Collation Centre.
The Act also requires the returning officer to announce the result and declare the winner of the election at the registration area or ward collation centre(in the case of councillorship election in the Federal Capital Territory), Area Council collation centre (in the case of chairmanship and vice chairmanship election in the FCT), State constituency collation centre (in the case of State House of Assembly election), Federal Constituency Collation Centre (in the case of election to the House of Representatives), Senatorial District Collation Centre (in the case of election to the Senate), State Collation Centre (in the case of election of a Governor of a state), state collation centre (in the case of a presidential election) and National collation centre (in the case of election of the President).
The Act places the responsibility of acting as Returning Officer at the presidential election on the chief electoral commissioner (Chairman of INEC).
Upon counting and announcement of results, the electoral officer is expected to transfer the result along with the total number of accredited voters and the results of the ballot in a manner prescribed by the commission. This provision has attracted controversy in the recently concluded Presidential and National Assembly Elections in Nigeria. By virtue of Section 148 of the Electoral Act 2022, the Commission is empowered to issue guidelines, regulations or manuals in order to aid the conduct of elections and give effect to the provisions of the Act. Consequently, the Commission came up with the Manual for Election Ofﬁcials 2023 (Election Guidelines). As part of the guidelines for the transmission of results, the Manual provided for Electronic Transmission/Upload of Election Result and Publishing to the INEC through the Result Viewing (IReV) Portal. The BVAS were also meant to be used for uploading Election Results. This application has been updated to work offline, when and where there is no network. However, what was noticed was that INEC failed to adopt this technology stricto sensu in the Nigerian General Elections held on the 25th of February 2023, and rather resorted to the old method of manual transmission of results under the Electoral Act of 2010.
We hereby submit that such resort to manual transmission contravenes the Election Guidelines set by INEC pursuant to Section 50(2) of the Electoral Act 2022.
We further submit that the manual transmission of results by the INEC in the 2023 Presidential and National Assembly Elections is an indication that the desired improvements inspired by the innovations introduced into the 2022 Act have not been fully achieved.
Thus, more deliberate efforts must be made to ensure that the provisions of the new Act are fully complied with by INEC so as to ensure freer, fairer, credible and transparent elections.
In conclusion, it must be categorically stated that there have been key innovations and improvements from the Electoral Act of 2010. The article has interrogated some of the novel provisions under the Electoral Act of 2022 and has successfully presented an expository on how elections should be conducted under the new Electoral Act. In the light of surrounding controversies on the conduct of the Presidential and National Assembly General Elections on 25th February 2023, this study submits that the procedures and guidelines as examined above have been contravened and as such, the Act cannot be said to have attained its full potentials.
This therefore offends the principle of the rule of law and combats the very essence of the enactment.
It is submitted that necessary legal actions should be undertaken by aggrieved parties in line with extant laws on the matter.