The Chairman of Independent National Electoral Commission (INEC), Prof Mahmood Yakubu, highlights the role of the National Assembly in the sustenability of electoral reforms for democratic growth.
On behalf of the Independent National Electoral Commission (INEC), I want to express our profound appreciation to the Senate Committee on INEC in particular and the leadership of the Senate in general for the kind invitation to address this Summit. The letter of invitation requested me to speak on how to improve election administration and management. I have taken the liberty to do so but with particular reference to what the NASS can do to improve elections in Nigeria through legislation, in line with the theme of the Summit – “Legislating for Electoral Reform”. Therefore issues of logistics, terrain, recruitment and training of staff, etc that are purely administrative and therefore do not require training, are left out of my presentation.
Having said so, distinguished Senators, I consider this Summit important for the novelty of the idea and the pro-activeness of the Senate Committee on INEC.
First, it is really refreshing to convene a forum of this nature to discuss the challenges arising from the processes, procedures and actual conduct of the 2015 and more recent elections, and thereafter fashion out appropriate constitutional/legal response. I am particularly glad that this is a Summit, distinct from a public hearing, for the amendment of the Electoral Act, but our constitutions are intended to enrich the legislative process. This is a new and commendable approach to legislation.
Secondly, this initiative is coming relatively early in the life the 8th National Assembly. Previous attempts came literally on the eve of General Elections and were focused more specifically on legal amendments rather than reform. The first Electoral Act under the current democratic dispensation was amended in 2002 – or the eve of the 2003 General Elections. The 2006 amendments came just before the 2007 Elections and in 2010, the Act was further amended in the run up to the 2011 General Elections. Most interestingly, the amendment to the Electoral Act 2010 was only assented to on the 26th of March 2015, barely two days to the last General Election, a copy of which only surfaced several months after the election. Consequently, the amendments were not used for the 2015 elections. Therefore, there is a history of acting too late, and sometimes too little as well, which makes the current effort truly unique.
In addition, there is also a context unique to the current effort. The number of elections conducted by the present INEC is the highest in the history of elections in this country outside the context of General Elections. The statistics are highlighted in four categories as follows:
- Forty-nine (49) re-run elections in 16 states of the federations out of 80 elections nullified by the courts.
- Ten (10) By-elections in 8 states across the country, caused by death or resignation (but mainly death) of elected members of the National and State Assemblies.
- Three (3) end-of-tenure Governorship elections in Kogi, Bayelsa and 68 Area Council Constituencies in the FCT.
- The Courts have so far upturned 23 Constituency elections (Senate, House of Representatives and State Assembly) and ordered the Commission to withdraw Certificates of Return from those adjudged not to have been validly elected and issue same to the rightful winners. We have since complied.
When I addressed a similar forum organized by the House of Representatives about 2 weeks ago (May 27), I reported that INEC had conducted 127 elections since the 2015 General Elections. About two weeks ago, we conducted two more by-elections in Kwara (Oke-Ero State Constituency) and Nasarawa (Nasara/Toto Federal Constituency). The new figure of elections conducted by INEC in the last six months is 129. And we still have 31 more to conduct, which we hope to round up by next month i.e. July 2016.
Most importantly, for the purpose of this Summit, is that some of the recent elections have challenged our electoral jurisprudence. For instance, in Kogi State, a candidate died in the middle of an election before the declaration of result. The Kogi experience was indeed a legal conundrum, not envisaged in our Constitution or the Electoral Act. INEC had no recourse to judicial interpretation because, as we were advised, our courts are not advisory institutions. They are courts of litigation.
In Nigeria, we have no Constitutional Court. We were advised, one way or another by some lawyers, almost all of them, on the basis of logic rather than clear constitutional or other legal provisions. Under the circumstances, INEC had to rely on Section 36(1) of the Electoral Act, which is the most proximate section of the law to get out of the conundrum.
Any electoral reform, going forward, must make clear provision against such a possibility. In doing so, we should look beyond the Governorship candidate. What if it happens that a Presidential or Deputy Governorship candidate dies in the middle of an election before the declaration of result? What if it happens in the case of the Senate, House of Representatives, State Assembly elections, or in an FCT (Federal Capital Territory) Area Council Election conducted by INEC? These are scenarios that sounded far-fetched before the Kogi experience. Now, they have become possible and there must be appropriate legal response. This is part of the comprehensive proposals for legal reform that we are submitting for consideration by the National Assembly.
Another area that has already attracted public attention and commentary is the status of the Smart Card Reader (SCR) in the light of the recent Supreme Court judgment. One legal opinion says that in the light of the power conferred on INEC by the 2015 amendment of the Electoral Act to determine the mode of elections, there is no longer any prohibition to the deployment of technology, including the SCR, for elections. However, others feel that there should be explicit provision in the Electoral Act. Already, proposals to that effect have been tabled before the two Chambers of the National Assembly by way of private members’ bills.
INEC feels that while there is need for a more explicit provision in the Electoral Act, it should be generic enough to cover the use of technology generally rather than a specific type of electronic device. Doing so will allow for flexibility without breaking the law in case the Commission introduces a new device other than the SCR. A generic provision will also cover some of the new innovations we intend to introduce ahead of the 2019 General Elections, especially with regard to electronic collation and transmission of result.
I have earlier referred to the large number of nullified elections, resulting in Court ordered re-runs in 80 constituencies nationwide. In addition to obeying Court Orders, we have carefully studied the court judgments with a view to learning lessons. One clear lesson is the large number of nullified elections, arising from the disqualification of candidates earlier declared winners. Here culpability lies with the political parties. The judgments show that in some cases, names of candidates were submitted to INEC without (the candidates) going through valid primaries. In other cases, political parties failed to do due diligence on their candidates, with respect to their personal integrity, academic qualifications, failure to resign from public office within the time frame allowed by law before joining politics and, most extraordinarily, even age.
Under Section 31 of the Electoral Act, INEC has no power to disqualify a candidate duly nominated by a political party. The failure of political parties leads to the nullification of elections and wholesale re-run of the elections. Here, we are not asking for the restoration of INEC’s powers to disqualify candidates. Rather, parties should contribute to deepening our democracy by conducting their primaries and forwarding the names of properly screened candidates to INEC.
The Electoral Act should be amended to make a clear provision that where an election is nullified because the winning candidate was disqualified, there should be no re-run election in that Constituency. Rather, Certificate of Return should be issued to the runner-up. Doing so will compel political parties to toe the path of propriety and save the nation the cost of conducting re-run elections arising from candidate disqualification.
However, the most intractable challenge in the administration and management of elections in Nigeria can be summarised in the phrase –”do-or-die” – by some (not all) of our political actors. Often this is expressed in open violence or the threat of violence leading to the subversion of the popular will of the people. Our responsibility as the electoral umpire is to ensure that votes truly count, but this cannot be achieved where election has become akin to war. While INEC has been strenuously applying our Guidelines as well as provisions of the Electoral Act, those determined to ignore the law and the Guidelines appear undeterred.
Our staff have been harassed, intimidated, compromised or even killed. Consistent with our Guidelines and the Electoral Act, INEC has declared some elections inconclusive and conducted supplementary elections. In some other cases, elections were cancelled in entire constituencies or in specific polling units based on the powers of the Commission under Sections 26 and 53 of the Electoral Act, in order to ensure that votes truly count and the people ultimately decide who their leaders are.
Where suspects were apprehended, we have worked jointly with the police to prosecute them under Section 150(2) of the Electoral Act
The Independent National Electoral Commission (INEC) believes that the time has come to revisit the issue of Electoral Offences Tribunal to deal with violators of the Electoral Act, whoever they are – political actors, INEC staff – whoever. We are submitting a proposal to that effect for appropriate legislation by the National Assembly.
There are a number of other areas requiring constitutional and legal amendments such as:
- Diaspora voting (including the power of political parties to organize abroad and maintain foreign accounts);
- The duration for Presidential/Governorship run off elections (Sections. 134 and 179 of the Constitutions provide only one week);
iii. Clear provision in the Electoral Act, in line with subsisting judgments of the Supreme Court, on which organ of a political party should submit list of candidates to INEC;
- Clear provision on the time limit in the Electoral Act, for the determination of pre-election matters, similarly to election petition cases so that they do not drag on for too long (Ondo – State Assembly and Kebbi Governorship – still on-going one year after).
Let me conclude the way I started this presentation by once again commending this laudable and unique intervention by the Senate Committee on INEC. I hope work on the Electoral Act will be concluded very soon so that there will be ample time to plan for the next General Election in 2019 on the basis of additional legal provisions.
I want to say that there is really no time. The 2019 General Election is to be held at least 30 days to the handing over date, which is 29th May 2019. This means that elections must be held latest by the end of April 2019. There is really no much time considering the fact that we have approximately 1,087 days to the last date for the elections. If you removed the weekends and public holidays, we have approximately 750 working days to the next General Elections. We therefore have to proceed in earnest.
I thank the distinguished Senators very much for the honour to speak at this Forum.
- Prof Yakubu delivered this paper at a Summit organized by the Senate Committee on INEC under the theme: Legislating for Electoral Reform, on June 6 in Abuja.
