Addressing the Issues Arising From the Electoral Act Amendment Bill 2021

The President, through a letter dated 13 December, 2021 read at the Senate by the Senate President on 21 December, 2021 communicated his decision to withhold assent to the Electoral Act Amendment Bill 2021, passed by both houses of the National Assembly.

Reactions have trailed the President’s refusal once again to sign the Electoral Act Amendment Bill. The reactions basically relate to two features of the Bill, to wit: the provisions for electronic transmission of election results and mandatory direct party primaries.

The provision for direct party primaries elicited mixed reactions. While some Nigerians criticized the President, other Nigerians believe that the President made the right decision. However, Nigerians roundly expressed disappointment by the refusal of Mr. President to give life to an enactment that will allow the Independent Electoral Commission (INEC) to electronically transmit election results in Nigeria, which many believe will revolutionize elections in Nigeria and allow the votes count.

Nigerians felt let down by the President because the provision for electronic transmission of election results was included in the Bill by the popular demand of Nigerians and after INEC had given assurances to the National Assembly that it indeed has the capacity to transmit election results by electronic means. Definitely, Nigerians felt disappointed that the President refused to remove a great impediment to free, fair and credible elections in Nigeria.

Given the President’s refusal to assent to the Bill, some Nigerians have called on the National Assembly to override the President’s veto by a two-third majority passage of the Bill, at both houses of the National Assembly, as required by the 1999 Constitution of the Federal Republic of Nigeria (the Constitution). Others have suggested that the National Assembly rework the Bill to expunge the provision for direct party primaries, to which the President referred as his reason for withholding assent; so that the President can go on to sign the Electoral Act Amendment Bill 2021 and make electronic transmission of election results possible. The question then arises as to whether INEC actually needs an Act of the National Assembly or Presidential assent to electronically transmit election results, if INEC so desires?

To answer the above question, this article critically examines the provisions of the Constitution relating to INEC and elections, to see if there are impediments to the electronic transmission of election results, under the extant laws.

The Legal framework for INEC and its power over elections in Nigeria are as follows: (1) The Constitution, (2) Relevant Acts of the National Assembly made pursuant to Paragraph 15(i), of the Third Schedule of the Constitution and (3) relevant judicial pronouncements. These categories are examined below.

1). The Constitution:

Section 153 of the Constitution established INEC in the following words: (1) There shall be established for the Federation the following bodies, namely … (f) Independent National Electoral Commission.

Thus, INEC is a body established by the Constitution (Section 153(1)(f) thereof) for the Federation. Section 153(2) of the Constitution stipulates that the composition and powers of INEC and other bodies established by Section 153(1) of the Constitution are as contained in Part 1 of the Third Schedule of the Constitution.

Paragraph 15 of Part 1 of the Third Schedule of the Constitution sets out the powers of INEC as follows:

The Independent National electoral Commission shall have power to:

i. Organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each state of the federation;

ii. Register political parties in accordance with the provisions of the constitution and Act of the National Assembly;

iii. Monitor the organization and operation of the political parties, including their finances; conventions, congresses and party primaries.

iv. Arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;

v. Arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this constitution;

vi. Monitor political campaigns and provide rules and regulations which shall govern the political parties;

vii. Ensure that all Electoral Commissioners, Electoral and Returning officers take and subscribe the oath of office prescribed by law

viii. Delegate any of its powers to any Resident Electoral Commissioner and

ix. Carry out such other functions as may be conferred upon it by an Act of the National Assembly.

From the provisions of Paragraph 15 of Part 1 of the Third Schedule of the Constitution reproduced above, it is clear that INEC has the following sources of powers: (1) powers expressly conferred upon INEC by the Constitution and (2) such other functions as may be conferred on it by an Act of the National Assembly.

The expression “other functions” is clear and unambiguous. It simply means other functions, apart from the ones already expressly conferred by the Constitution. Thus Paragraph 15(i) of Part 1 of the Third Schedule of the Constitution clearly disqualifies the National Assembly from legislating on the powers expressly conferred on INEC by the Constitution.

Though it appears that the scope of the powers of the National Assembly to assign “other functions” to INEC is at large, this is not the case. The scope is clearly prescribed by the Constitution in plain language, as shown below.

Section 78 of the Constitution, for the avoidance of doubt, stipulates that “the registration of voters and the conduct of the elections shall be subject to the direction and supervision of the Independent National Electoral Commission”.

The Constitution then prescribes the scope of the powers of the National Assembly, at Section 79 of the Constitution as follows:

“The National Assembly shall make provisions as respects-

i) Persons who may apply to an election tribunal for determination of any question as to whether

• Any person has been validly elected as a member of the Senate or of the House of Representatives
• The term of office of any person has ceased, or
• The seat in the Senate or in the House of Representatives of a member of that House has become vacant

ii) Circumstances and manner in which, and the conditions upon which, such application may be made; and

iii) Powers, practice and procedure of the election tribunal in relation to any such application”

The Constitution (at Section 228 thereof) also makes provision for the powers of the National Assembly with respect to political parties. It states that “the National Assembly may by law provide-

• Guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of party primaries, party congresses and party conventions; and

• The conferment on the Independent National Electoral Commission of powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the practice of internal democracy, including the fair and transparent conduct of party primaries, party congresses and party conventions;

• For an annual grant to the Independent National Electoral Commission for disbursement to political parties on a fair and equitable basis to assist them I the discharge of their functions; and

• For the conferment on the Commission of other power as may appear to the national Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the provisions of this Part of this Chapter

To ensure INEC’s independence, Section 160(1) of the Constitution makes a provision that sets INEC apart from other bodies created by Section 153. The Constitution subjects the powers of these other bodies to make rules or otherwise regulate their own procedure, to the approval of the President and then states specifically that “in the case of the Independent National Electoral Commission, its powers to make its own rules or otherwise regulate its own procedure shall not be subject to the approval or control of the President”.

From the above, there is no doubt that the power of the National Assembly to confer other functions on INEC does not include making rules to regulate INEC’s procedure on elections. It also does not entitle the National Assembly to make laws to regulate how INEC organises, undertakes, supervises or conduct elections. Given that all laws made by the National Assembly must be transmitted to the President for his assent, to send a bill regulating INEC’s procedure to the President for assent means subjecting INEC’s constitutional power to self-regulate to the President’s approval and control.

Having set out the relevant provisions of the Constitution, let us take a look at some decisions of Superior Courts of Record, as a guide on how these provisions of the Constitution should be interpreted.

2). Judicial pronouncements:

The Supreme Court has made rules to govern interpretation of the provisions of the Constitutions. In PDP v Sheriff (2017) LPELR-42736 (SC) stated that “a Constitution and in particular that part of it which is on the same subject matter are to be construed together. The entire provisions are to be read as a whole. It is only then that the subject matter in issue can be properly understood and applied correctly.”

The subject matter of this article is the extent of the powers of the President and the National Assembly to control INEC vis-à-vis the conduct and regulation of elections in Nigeria. Applying the rule in PDP v Sheriff, all the provisions of the Constitution referred above are to be read as a whole. It is only then that one can properly understand and apply correctly, what the Constitution says about the powers of the President and the National Assembly over INEC vis-à-vis the conduct and regulation of elections in Nigeria

The Supreme Court in Eze v Governor of Abia State (2010) LPELR – 4133 (CA) also held that “the Constitution must be literally interpreted so that every Section will have a meaning.” That is to say that all the provisions of the Constitution relating to INEC and its power over elections in Nigeria reproduced above have to be literally interpreted in a way that every single provision will have a meaning.

Also in Dapianlong v Dariye (2007) LPELR-928(SC), the Supreme Court described the Constitution as “the organic law or grund norm of the people. It contains all the laws from which the institutions of the state derive their creation, legitimacy and very being”. The Supreme Court also held in Ugba v Suswam (2014) LPELR-22882(SC) that “the supremacy of the Constitution is obvious, as being the only instrument which is imbued with absolute power to create and confer jurisdiction. It is the ultimate and can be compared to none.”

The import of the Supreme Court’s decision in Dapianlong v Dariye is that the National Assembly and the President must operate within the powers conferred on them by the Constitution. INEC too is entitled to operate within the parameters of its own Constitutional powers without any external interference, be it from the President or the National Assembly.

If Sections 78, 153(2) and 160(1) of the Constitution are read together with Paragraph 15 of Part 1 of the Third Schedule of the Constitution in a way that every provision thereof will have a meaning, it will be clear that the Constitution conferred exclusively on INEC, the power to organise, undertake, conduct and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each state of the federation, to the exclusion of every other person or body in Nigeria.

The Sections also empower INEC to make its own rules and regulate its own procedures without the approval or control of the President. The National Assembly can only confer on INEC additional functions within the limits of Sections 79 and 228 of the Constitution.

The electronic transmission of election results is a matter of election procedure. If INEC has the constitutional power to organise, undertake, conduct and supervise elections and also the power to make its own rules and regulate its own procedures without the approval or control of the President, it means that INEC does not require any other legislative enactment or the President’s assent to make its rules to regulate electronic transmission of election results.

One may ask, if INEC does not require any other legislative enactment or the President’s assent, to make its rules to regulate electronic transmission of election results, what then are the functions of the National Assembly under Paragraph 15(9) of Part 1 of the Third Schedule of the Constitution, which provides that INEC can carry out such other functions as may be conferred upon it by an Act of the National Assembly? This question leads us to the third aspect of the legal framework for INEC and its power over elections in Nigeria.

3). Acts of the National Assembly:

It is the same Constitution that established the National Assembly and the office of the President that established INEC and defined its functions to include organising, undertaking and supervising all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each state of the federation. Section 78 of the Constitution, emphasises that “the registration of voters and the conduct of the elections shall be subject to the direction and supervision of the Independent National Electoral Commission”.

In addition to powers expressly conferred on INEC by the Constitution, the Constitution (at Paragraph 15(9) of Part 1 of the Third Schedule) empowers INEC to, carry out such other functions as may be conferred upon it by an Act of the National Assembly. The Constitution also expressly prescribed (at Section 79 of the Constitution) the parameters of “such other” functions, that the National Assembly may confer on INEC.

It is very clear from Paragraph 15(9) of Part 1 of the Third Schedule of the Constitution and Section 79 of the Constitution that the Constitution does not want to donate to the National Assembly, power to confer functions on INEC that will be at large and without restrictions.

Indeed, there are restrictions to the power of the National Assembly over INEC. The first restriction is that the National Assembly does not have the power to interfere with the functions and powers expressly conferred on INEC, by the Constitution.

In Adisa v Oyinwola (2000) 10 NWLR, Part 674 116 at 191, the Supreme Court stated that where a right has been conferred by the Constitution, it cannot be taken away by any other statutory provision except the Constitution itself and any law so made is void to the extent of its inconsistency. The implication of Adisa v Oyinwola is that the National Assembly lacks the legislative competence to enlarge or alter the powers expressly conferred on INEC by the Constitution.

The second restriction is that the National Assembly can only confer additional functions on INEC, within the parameters of Sections 79, 228(a), 228(b), 228(c) and 228(d) of the Constitution.

Section 79 relates to election Petitions and Tribunals, Tribunal proceedings and questions to be determined thereof. Section 228 relates to the National Assembly’s power to make laws to enable INEC ensure internal democracy within political parties and laws to ensure that parties observe the relevant provisions of the Constitution. Section 228 is the part of Constitution that enables the National Assembly make laws regulating party primaries, congresses and conventions.  The National Assembly cannot confer additional functions on INEC outside the provisions of Sections 79, 228(a), 228(b), 228(c) and 228(d) of the Constitution.

National Assembly and Presidential Interference with Powers of INEC over Election

Notwithstanding the clear provisions of the Constitution, the National Assembly has been interfering with the conduct of elections by enacting laws to regulate INEC’s procedure. The President also interferes with the powers of INEC over the conduct of elections by signing into law various enactments of the National Assembly regulating INEC’s procedure for conducting elections.

Various enactments of the National Assembly interfering with the constitutional powers of INEC to self-regulate its procedure include statutory provisions on the order of elections, conduct of elections and conduct at polling units, issuance of ballot papers and type of ballot system, provision or prohibition of electronic transmission of election results, opening and closing of polls, vote counting or recounting and result collation, declaration and publication of election results, etc.

The Constitution has given INEC the power to organise, undertake, conduct and supervise elections and also to self-regulate its procedures. It is therefore not within the powers of the National Assembly to make a law that stipulates to INEC how to exercise the powers conferred on it by the Constitution; otherwise the Constitution will be violated.

Various Electoral Acts passed by the National Assembly contain provisions either permitting or prohibiting the use of electronic voting machine and electronic transmission of results. This is an interference with the power of INEC to regulate its procedure and determine the mode of voting and transmission of election results, which ordinarily falls within the constitutional power of INEC.

It can also be said that, by the President consenting to provisions of various Electoral Acts (including the extant Electoral Act, 2010) containing provisions regulating election procedures, there has been an interference with the Constitutional powers of INEC by the President.

It is hereby recommended that the President and the National Assembly should stay within the boundaries of their constitutional powers and allow INEC to be truly independent, as provided by the Constitution. INEC should also not shy away from or abdicate any aspect of its constitutional responsibility to organise, undertake, conduct and supervise elections and also to self-regulate its procedure without external interference.

In conclusion:

INEC does not need an Act of the National Assembly or Presidential assent to electronically transmit election result. Therefore there is no impediment to INEC’s desire for electronic voting and electronic transmission of results, as part of the electoral process.

 

Written By:

Chinedu Nneke

Contributor

OAL