To get it right and for our democracy to flourish, our laws should reflect the will of the people and strengthen our democratic process. Our leaders, especially lawmakers, should realise that many of the laws they make today would go beyond their tenures, and even their lifetimes. So, it becomes imperative that the process of law-making should be covertly and overtly patriotic and devoid of partisan, ethnic or primordial sentiments.
Traditional wrestling in the southern part of Nigeria is intriguing and exciting. To the uninitiated, it would appear that there are no rules, but to those who understand it, there are standard rules that govern it. The electoral system in Nigeria is like the traditional wrestling common to most parts of Nigeria. To non-Nigerian observers, they could place a bet that rules do not govern elections in the country, but to politically discerning persons, they see rules governed by regulations that are observed in the breach. Everything Nigerian is unique, though often not properly documented as a model – Nigerian English, Nigerian Jollof rice, Nigerian movies, Nigerian democracy and maybe now the Nigerian Electoral Act.
Free and fair elections are the bedrock of every functional democracy, ensuring that government authority derives from the will of the people. It is crucial to put rules and regulations in place, that would guide elections to ensure they are free and fair. These laws usually take into consideration the socio-economic and political contexts of a particular environment. What would work in Sokoto may not work in ‘Shokoto’. Agreed, no law is perfect, and none would completely curb electoral malpractices. Human beings, especially political actors, always have the ability and ingenuity to develop strategies to undermine a rule, however iron cast it looks. Subverting an election is not entirely an African or Third World thing.
Since the return to democratic rule in 1999, Nigeria has been experimenting with different sets of laws meant to enhance the process and credibility of our elections. The latest chapter of this tinkering is the proposed Electoral Act (Repeal and Re-Enactment) Bill 2020, currently in consideration at the National Assembly. There are speculations that the original recommendations of the Joint Technical Committee, co-Chaired by Senator Kabiru Gaya of the Independent National Electoral Commission (INEC) committee in the Senate and Honourable Aisha Dukku of Electoral Matters Committee in the House of Representatives, may have been tampered with, especially the provisions on the electronic transmission of results and limits to political campaign finance.
According to some of the members of the Joint Technical Committee, Clause 50(2) of the Committee’s report gave INEC the power to determine the procedure for conducting elections, including if it chooses, the electronic transmission of results. The members expressed shock, like the rest of the country, that its report was apparently tampered with, and words have been substituted in the said Clause 50(2), which now outlaws the transmission of election results by electronic means in an outright manner. The disputed Clause 50(2) has now been made to read, as follows: “Voting at an election under this Bill shall be in accordance with the procedures determined by the commission, which may include electronic voting provided that the Commission shall not transmit results of the election by electronic means.”
The Southern Governors’ Forum, in its meeting held last week in Lagos, rejected the removal of the electronic transmission of results clause from the Electoral Bill, as well as the confirmation of exclusive jurisdiction in pre-election matters on the Federal High Court.
The hue and cry of Nigerians over the purported attempt to exclude electronic voting and transmission of results from our electoral law have been deafening. And there is palpable fear amongst Nigerians that were this to succeed, it may mean that the 2023 general elections will be characterised by the flaws that have become the recurring decimal in Nigeria’s polls since 1999.
The electronic transmission of election results has been an issue in Nigeria’s elections for some time now. The opponents of this measure have cited, amongst other issues, the poor state of our infrastructure and the ability of hackers and fraudsters to manipulate results when they are transmitted electronically. They point out that the electronic voting process was never part of the Electoral Act of 2010, as amended, and that even the card reader has never been part of the Act.
If the above insertion of the “strange” clause 50(2), outlawing the electronic transmission of results, passes, the implication is that we are on a backward movement. The original idea behind INEC adopting the electronic transmission of results, as seen in the past Edo election, is to advance our electoral process to electronic voting. E-voting is no rocket science, and in this age of invention, we do not need to re-invent the wheel. Developed countries such as United Kingdom, France, Germany, Switzerland, and developing countries like India, Venezuela, and the Philippines, have all adopted and are using the full compliments of e-voting. On the other hand, paper ballots, manual counting, manual collation, and the hand carrying of results represent some of the most significant challenges that have affected the sanctity of elections in our part of the world and made a mockery of democracy. It leads to a lot of contestations and creates a dilemma in terms of whose result is original. The e-compilation and e-transmission of results will strengthen our faith in the electoral system and, by extension, democracy. After all, the essence of democracy is the sanctity of votes. If the ballot is open to contestation, then it does not breed trust.
The contentious nature of our elections has made Nigerians question if they represents the wishes and aspirations of our people. Any act that further depletes trust in the electoral system is an invitation to anarchy and may lead to the death of democracy as we know it today. Due to contentions about the nature and authenticity of election results, the courts now play a more significant role in deciding who is the winner of an election, denying the people the right to free choice. In recent times in our country, the courts gave some judgements that put people in office who, in the real sense, did not participate in the electoral process. A rejection of the electronic transmission of results and a return to the manual mode of transmission is a return to everything wrong with elections in Nigeria. For all we care, we might, as well, legalise electoral violence, ballot paper snatching, the stuffing of ballot boxes, writing of results in individual homes and multiple results, if we are to go back to manual and analogue electoral practices and processes.
The hue and cry of Nigerians over the purported attempt to exclude electronic voting and transmission of results from our electoral law have been deafening. And there is palpable fear amongst Nigerians that were this to succeed, it may mean that the 2023 general elections will be characterised by the flaws that have become the recurring decimal in Nigeria’s polls since 1999. Some Nigerians perceive it as an elite conspiracy to ensure that Nigeria fails as a country.
I interprete the clause seeking to exclude the electronic transmission of election results from the Electoral Bill 2020 as setting the grounds for cheating in future elections, as we saw in some states in 2015 and 2019. If there is anything we owe the future generation of Nigerians, it is an electoral system representing their aspirations and allowing them to elect the kind of leaders they want. Nigeria should be on the same page with other civilised countries where the electronic transmission of results means that each stage of the electoral process is as transparent as possible. For most of us, even the accreditation of voters should be electronic, to curb the ongoing issues of multiple voting or overvoting.
…when only the Federal High Courts are allowed to adjudicate on pre-election matters, we are likely to have an ugly situation where many cases would linger for a while, whilst waiting to be taken care of within the short period. And if we put judges under undue pressure to give judgments to meet up with time, this would lead to half-baked litigations and unsound pronouncements by the judges.
The second issue is the excessive monetisation of the electoral process. The proposal before the National Assembly is to move the limit of campaign expenditure for the presidency from N5 billion to N15 billion; the governorship from N1 billion to N5 billion; the Senate to N1.5 billion; House of Representaives to N500 million; State House of Assembly and Area Council Chairmanship to N50 million. The real challenge is in the monitoring of this expenditure cap and enforcement of the provisions of the relevant law when there is a breach. A clear case of the negative impact of monetisation in our politics can be seen in the alleged bribery of INEC officials to the tune of N360 million in the 2015 elections by a south-south governor. He did this knowing fully well that these corrupt officials can easily manipulate the system to his advantage. If electronic electoral processes are adopted, these types of assault on our electoral system will be minimised, if not completely eliminated. For many Nigerians, some of the manual processes in our elections are susceptible to manipulation, so there should be electronic accreditation using the card reader backed by law, the electronic counting of votes, electronic transmission, and the electronic collation of results.
Another area of concern is the confirmation of exclusive jurisdiction in pre-election matters on the Federal High Court. Understandably, the proponents of this rule want to reduce election-related litigation in the interest of our political class and our courts, which are currently overstretched. Many politicians in Nigeria suffer from the double jeopardy of losing elections after spending so much but equally of bleeding cash through endless litigation. A critical look at this provision of the proposed amendment to the Electoral Act will conclusively show that leaving the jurisdiction on electoral matters solely with the Federal High Court would not be the best for the country. It is a fact that most of the election cases in the country are time-bound and must be concluded within a brief period. As such, when only the Federal High Courts are allowed to adjudicate on pre-election matters, we are likely to have an ugly situation where many cases would linger for a while, whilst waiting to be taken care of within the short period. And if we put judges under undue pressure to give judgments to meet up with time, this would lead to half-baked litigations and unsound pronouncements by the judges.
Also causing some rumpus in the proposed bill is the removal of INEC’s power to review results declared under duress or in contravention of electoral laws and guidelines, as contained in section 65 of the proposed legislation. For many political analysts, INEC is to review results declared under duress to reduce the level of electoral malpractices that have become so common in our country, which demeans our electoral process and discredits our fledgling democracy.
This proposed clause in the legislation would require serious scrutiny as it has pros and cons. Forcing an electoral official to declare result under duress is a criminal offence; however the real challenge is in the enforcement of laws against criminality. We had a case in the last election in Imo State where an INEC Returning Officer lamented before the press that a Senatorial candidate had allegedly kidnapped him and forced him to announce his ‘acceptable’ result. This example is quite deplorable and abhorrent.
To get it right and for our democracy to flourish, our laws should reflect the will of the people and strengthen our democratic process. Our leaders, especially lawmakers, should realise that many of the laws they make today would go beyond their tenures, and even their lifetimes. So, it becomes imperative that the process of law-making should be covertly and overtly patriotic and devoid of partisan, ethnic or primordial sentiments. Like the wrestling in the southern part of Nigeria mentioned earlier, electoral engagement rules must be clear to all, both the initiated and uninitiated. Electronic voting and transmission of the results are necessary and should be added to the Electoral Act.
Dakuku Peterside is a policy and leadership expert.
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