What does Nigeria’s amended electoral act mean?

In one of its more consequential decisions, Nigeria’s Senate on March 30, passed the Electoral Act No. 6 2010 (Amendment) Bill 2017. This follows years of mostly unsuccessful attempts – the current amendments are aimed at instituting more reform in the electoral process and make it freer, fairer and credible.

Last Thursday’s amendments are the most ambitious and wide ranging attempt at further enhancing the provenance of electoral conduct in Nigeria. The new provisions, amongst other things, abolish arbitrary fees for nomination forms fixed by political parties, provide a clear process for a political party whose candidate dies after commencement of an election and before the declaration of the result of that election, and perhaps most importantly, grants the electoral umpire “unfettered powers” to conduct elections by electronic voting – a provision that many had called for but proved controversial enough to stymie the last two attempts at amending the electoral law. Thus, a presidential aspirant in a Nigerian election will pay no more than N10 million as a nomination fee during the political primary process. As context, President Muhammadu Buhari paid N20 million to obtain his All Progressives Congress nomination form during the 2015 election cycle, an event made memorable by his regular quips on the campaign trail that he had to take out a loan in order to purchase it. For state governors, that figure is now N5 million.

Other important provisions include the introduction of a full biometric accreditation of voters with smart card readers and other technological devices, the instant transmission of accreditation data and results from polling units to various collation centres, with an imprisonment term of at least five years without the option of a fine attached for non-compliance, the introduction of an electronic register of voters which must be published on the INEC website at least 30 days before a general election as well as a national electronic register of election results as a distinct database or repository of polling unit by polling unit results for all elections conducted by INEC. Card readers were first used during the 2015 general elections, but the Supreme Court, in its rulings on the Abia, Delta, Rivers and Akwa Ibom governorship votes, famously criticised its use. Although INEC continued to use card readers to accredit voters in rerun elections that followed the 2015 polls, this is the first time the technology is receiving full legislative backing.

On political party conduct, a key aspect of INEC’s work which has drawn criticism in the past, the new amendment makes some important interventions. A political party whose candidate dies after the commencement of an election and before the declaration of the result of that election now has a 14-day window within which to conduct a fresh primary in order for INEC to conduct a fresh election within 21 days of the death of the party’s candidate. This move is aimed at preventing the kind of crisis that followed the 2015 Kogi governorship election in which Audu Abubakar, the candidate of the All Progressives Congress who was leading the poll, died before the final returns were made.

Political parties’ polling agents are now entitled to inspect originals of electoral materials before the commencement of an election.

Crucially for fundamental rights advocates, no political party is allowed to impose qualification/disqualification criteria, measures or conditions on any Nigerian for the purpose of nomination for elective offices, except as provided in the Constitution of the Federal Republic of Nigeria, 1999. That is, the election of a winner of an election can no longer be challenged on grounds of qualification, if he, the (winner) satisfied the applicable requirements of sections 65 (which provides for age limits, educational attainment and political party affiliation for elections into the Senate and Federal House of Representatives), 106 (same as s.65 but for state Houses of Assembly), 131 (for the Presidency) or 177 (for a governorship) of the Constitution. While the amendments are silent on it, it seems that the new rules also prevent INEC itself from attaching additional qualification/disqualification criteria for the elections it conducts and supervises.

Considering the history of electoral practice in Nigeria, many of the new legislative provisions are overdue, and are a vindication of the public campaign led by former INEC Chairman, Attahiru Jega, to push electoral reforms through the National Assembly – he had called for many of the new rules, especially on e-voting, the e-register and the arbitrary nomination fees charged by political parties which essentially devolved into a race-to-the-bottom, fundraising endeavour. The devil, as with many laudable initiatives introduced in Nigeria will be in the application. On electronic voting, the infrastructure is only being rolled out, and while INEC in the past has said it is working on training full and ad-hoc staffers on how to properly deploy and use these devices, the mostly botched experience with the card readers in 2015, as well as other e-initiatives as the National Identity Card scheme and the introduction of electronic examination testing by government testing bodies are a cursory reminder that Nigerian officialdom has a chequered and unsatisfactory track record of utilising technology to achieve its aims.

On paper, Nigeria has some of the most robust electoral rules of any emerging democracy. Unfortunately, most of them are primarily observed in the breach. A prime illustration of this trend are the campaign financing rules under the current Electoral Act 2010. The Act provides spending curbs for all electoral contests in the country. However, there is anecdotal evidence from the 2010 and 2015 elections that the primary political parties all breached their upper spending limits – capped at N1 billion for the presidential contest, N200 million for governorship votes, N40 million for the Senate and N20 million for the Reps races respectively. According to the The Westminster Foundation for Democracy, the Peoples Democratic Party spent N8.74 billion during the 2015 Elections. Furthermore, a report by Compliance and Content Monitoring Ltd, the PDP accounted for about N2.5 billion or 77 percent of the total spending with APC shelling N728 million on political campaign advertisement. Estimates by civil society group, Centre for Social Justice show that the PDP expended N3.5 billion on publicity between December 2014 and February 2015, the campaign high period, while the APC spent N1.42 billion during the same period.. A significant portion of spending on fiercely contested votes in the country, especially at the national level is in US dollars – an occurrence which partly explains the notable drop in the country’s foreign reserves following the 2015 elections. In addition, while the new rules contain stiff imprisonment terms for illegal activities by INEC officials and political actors, it does not prevent persons convicted of electoral offences from recontesting for office.

Political uncertainty may yet claim this latest effort at electoral reform as a high profile victim. The political hurdles that this Bill still needs to scale may be significant considering the current tensions between the executive and the legislature. The new provisions need to be passed in the exact form by the House of Representatives before presidential assent will confirm them as law. The fact that the Bill is not an Executive Bill, but one primarily put together by lawmakers who have frustrated some of the President’s efforts at getting key nominees confirmed (including, rather ironically, resident electoral commissioners for 21 of Nigeria’s 36 states) may set the stage for the executive to exert some retribution on the Senate and possibly, the House of Representatives.