The 2023 general elections were conducted within the framework of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Electoral Act 2022. As confirmed by reports of local and international observers, there were many problems with the 2023 elections.
In the area of logistics, the Independent National Electoral Commission (INEC) failed to ensure efficient and timely distribution of election materials across the country resulting in the disenfranchisement of many eligible voters and the postponement of elections in some states. Even after scheduling supplementary elections, INEC still did not fare any better in this regard. On INEC’s pledge to deploy technology to boost the conduct and credibility of the election, the Bimodal Voter Accreditation System (BVAS) used to authenticate registered voters and upload election results to the INEC Results Viewing Portal (IREV) did not work as promised. In addition to this, the voting and collation procedure for the general elections was slow and cumbersome. INEC did not collate and announce election results in real time. This created tension and caused a lot of anxiety among the electorate. On the issue of ideological political party structuring, the 18 registered political parties did not show any remarkable improvement in electoral performance.
Many of the parties acted as appendages to the dominant political parties (the All Progressives Congress (APC), the People’s Democratic Party (PDP), the Labour Party (LP), and the New Nigeria Peoples Party (NNPP). The few political parties that actively participated in the electoral process garnered about 2.70 per cent of the total votes cast. Furthermore, there is a general lack of confidence in the courts and election tribunals to fairly and promptly handle post-election issues. The rules governing the courts and election tribunals appear to be skewed unfairly against the petitioner.
Accordingly, four major issues can therefore be said to have marred the 2023 general elections. The first is the abject performance of Nigeria’s political parties. The second issue is the apparent inability of INEC to deliver on its mandate. The third is the slow and cumbersome procedure of voting and collation of election results. The fourth is the lack of confidence in the election conflict management processes and institutions.
The Uwais Report
In the aftermath of the 2007 general elections, the federal government constituted a 22 Member Electoral Reform Committee. The Committee was chaired by Hon. Justice Mohammed Lawal Uwais Retired. The Committee was charged to examine “…. the entire electoral process with a view to ensuring that we raise the quality and standard of our general elections thereby deepening our democracy.” This was an impressive and necessary initiative as the 2007 election was regarded as one of the worst in the nation’s electoral history.
The Electoral Act 2010 was a direct response to the Uwais Report published in 2008. Certain Amendments to the Constitution of the Federal Republic of Nigeria 1999 were also a reaction to the Uwais Report. Even though many aspects of the Uwais Report influenced the Electoral Act and the Nigerian Constitution, there are many other aspects of the Uwais Report that were abandoned.
At the time, it was believed in some quarters that the adopted portions of the Uwais Report provided an adequate legal framework for elections in Nigeria. Regrettably, that has not been the case. The outcome of Nigeria’s 2011, 2015, 2019, and 2023 general elections has been far from acceptable. This article examines the four major issues that characterized the 2023 general elections and proffers solutions from the Uwais Report.
Performance of political parties
Nigeria currently has 18 registered political parties. The 18 registered political parties participated in the February 25, 2023, Presidential Elections. However, the results of the elections released by INEC did not show that 18 registered political parties participated. Out of a total of 25,286,616 valid votes cast at the election, the dominant parties (that is PDP, APC, LP, and NNPP) garnered a total of 23,377,466 votes which is 97.30 per cent of the total number of the total valid votes. i.e. the total number of votes received by all political parties involved in the elections –excluding rejected votes. The other 14 political parties scored 648,474 or 2.70 per cent of the total valid votes. Again, this raises concern about the existence of 18 registered political parties.
In the past, several efforts were made to limit the number of registered political parties in Nigeria by imposing stringent registration requirements. The last effort was through the fourth alteration to the 1999 Constitution in 2018. In that alteration, the Constitution specifically empowered INEC to deregister political parties on the following grounds: Breach of any of the requirements for registration as a political party; failure to win at least 25 per cent of the votes cast in one state of the federation in a presidential election or 25 per cent of the votes cast in one local government area in a governorship election and failure to win at least one ward in a chairmanship election, one seat in the National or State Assembly election or one seat in a councillorship election.
Sadly, this has not achieved the desired result. Some political parties still exist as rent seekers extracting value for their existence.
The Uwais Report tried to address this mischief by incentivising genuine political parties.
The Uwais Report recommended a combination of proportional representation and the majoritarian rule of representation at the federal, state and local levels. The mixed system would entail creating an additional 30 per cent of the existing legislative seats at the national, state and local government levels for the purposes of proportional representation. The threshold shall then be established which is the number of votes cast in the First–Past–The–Post–election divided by the number of available proportional representation seats.
Political parties shall then nominate for proportional representation at 30 per cent female candidates and two per cent physically challenged candidates for legislative elections. Political parties that win up to 70 per cent of the seats in an election conducted under the First–Past–The–Post–election shall not be eligible to benefit from the propositional representation. The criterion, for the production of the party list, was to be included in an amended Electoral Act. Unfortunately, this recommendation from the Uwais Report was not incorporated into the Electoral Act. The need for proportional representation is overdue and would greatly assist the growth and performance of genuine political parties in Nigeria.
Addressing INEC’S inefficiencies
The Independent National Electoral Commission (INEC) by virtue of Paragraph 15 Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) is saddled with the task of conducting elections, carrying out voter registration, preparing logistics for the elections, registration of political parties, among other functions.
INEC, as presently constituted, is overburdened, ill-equipped, and lacks the required manpower to effectively deliver on its mandate without hiccups. In the 2023 presidential elections, INEC did not efficiently deliver election materials across the country. This resulted in the postponement of elections and the scheduling of supplementary elections. Even after the postponement, reports of international and local observers indicate, INEC did not perform any better doing the supplementary elections.
The Uwais Report addressed this challenge by recommending the unbundling of INEC into the following special commissions: The Political Parties Registration and Regulation Commission, the Electoral Offenses Commission, a Constituency Delineation Commission, and the Centre for Democratic Studies. This was primarily to unbundle INEC and refocus it strictly on conducting general elections while the new bodies would be saddled with pre and post elections matters. Sadly, the recommendation was not incorporated into the Electoral Act of 2010. In view of INEC’s continued dismal performance, it is imperative to reconsider the Uwais Report Recommendation to unbundle INEC.
Transitioning to electronic voting and collation of results
Nigeria operates a semi-electronic voting system. Registration of voters is done electronically but voting and collation of results are done manually. The use of BVAS for the authentication of voters has not significantly improved the credibility of the election process.
The present method of voting in Nigeria is the Open Secret Ballot System (OSBS) in which the prospective voter goes through a process of accreditation, receives a ballot paper from the appropriate poll official and thereafter makes the confidential thumb impression in favour of the political party of choice in a secret voting compartment before dropping the ballot in the box positioned in the open, in the full glare of officials, security and party agents.
The collation of election results is also done manually. It is incrementally done at polling booths, electoral wards, local governments, states, and federal for the presidential election. This process is ridiculously slow and cumbersome.
The introduction of IREV, a platform that allows voters and other interested parties to monitor the electoral process and view pictures of the election results from each polling unit, including the number of votes cast for each candidate and the percentage of total votes cast was supposed to be the game changer that would make the collation process transparent.
Unfortunately, it was abandoned or poorly managed by INEC. In the 2023 presidential elections, it took INEC a total of four days to conclude the process of voting and collation of results. This created tension and a lot of anxiety. There is an urgent need to modernise the voting and collation process by transitioning fully to electronic voting and collation of results.
Electronic voting and collation will drastically reduce the time it takes to vote, collate and release election results. It will, to a certain level, limit the involvement of persons from accreditation to result release and increase voter participation. A voter can register in one part of the country and vote in another. The Uwais Report recommended a gradual introduction of electronic voting. The report was submitted in 2008. 15 years later, Nigeria is ready for electronic voting.
The Electoral Act 2022 does not provide for electronic voting and collation. Rather, Section 50 (2) of the Electoral Act 2022 gives INEC the discretion to determine the procedure for voting and transmission of results. It was on the basis of Section 50(2) of the Electoral Act 2022 that INEC introduced the BVAS and IREV.
Restoring confidence in tribunals
The process of dealing with complaints and resolving election disputes is critical to the survival of any democracy, particularly a fragile one like Nigeria. In addition to monitoring the voting and collation process, attention must also be paid to the process of dealing with election complaints. Over the years, this has not been the case. The result is that the election petition process has become unfairly skewed against the petitioner.
Take for instance the issue of burden of proof otherwise known as the doctrine of substantial compliance, which is to the effect that an election shall not be invalidated by reason of irregularities or non-compliance to the electoral law as long as it is conducted substantially in accordance with the electoral laws and the irregularities and non-compliance did not affect the result of the election.
The substantial compliance doctrine places two evidential burdens on a petitioner. The first burden is that the petitioner has to prove irregularities and non-compliance with the electoral law.
The second evidential burden is that the petitioner has to prove that the irregularities and non-compliance with the electoral law affected the results of the election. The substantial compliance doctrine was first applied by the Supreme Court in AWOLOWO V. SHAGARI (1979) NSCC 87. It was applied in several other cases such as BUHARI V. OBASANJO (2005) 13 NWLR (PT. 941), OBASANJO V. YUSUF (2004) 9 NWLR (Part 877) 144, BUHARI V. INEC & 4 ORS (SC 51/2008) 12 DEC 2008, ABUBAKAR, GCON & 2 ORS V. YAR ADUA & 5 ORS (SC72/2008) 12 DEC 2008, CPC V. INEC & 40 ORS SC 426/2011) 28 DEC 2011. It is on record that no presidential election has been upturned in Nigeria on account of the doctrine of substantial compliance.
The Uwais Report relieved this onerous burden placed on the petitioner by recommending that the burden of proof for election petitions be placed on INEC and the Respondent. The thinking is that since INEC conducted the election and the Respondent is the beneficiary, it will be easy for INEC and the respondent to prove that the election was conducted substantially in accordance with the electoral law.
Unfortunately, this Uwais Report recommendation was not incorporated into the Electoral Act. Shifting the burden of proof in election petitions from the Petitioner to INEC and the Respondent will substantially restore confidence in the election petitions process.
Conclusion
The recently concluded 2023 general elections have revealed that there are major issues with Nigeria’s electoral processes and institutions. There is an urgent need to improve the electoral processes and institutions. The Uwais Report contains viable recommendations that can transform Nigeria’s elections.
It is our hope that the incoming National Assembly will reconsider some of the recommendations of the Uwais Report with a view to making the outcome of elections in Nigeria transparent, credible, and acceptable.
•Okeke is an Associate Partner/Head of Public Sector Practice at Olisa Agbakoba Legal (OAL)
