Dr. Olisa Agbakoba writes INEC on the Electoral Act (Amendment Bill) 2021

On 4th of January 2022, Dr. Olisa Agbakoba (SAN), the Senior Partner of OAL wrote to Independent National Electoral Commission (INEC) concerning the Electoral Act (Amendment Bill) 2021. His letter to INEC reads:

4^th January 2022

The Chairman,

Independent National Electoral Commission (INEC)

F.C.T Abuja.

ATTENTION: Prof. Mahmood Yakubu

RE: ELECTORAL ACT (AMENDMENT BILL) 2021

The interesting but complex public conversation around the Electoral Act (Amendment) Bill, 2021, particularly as it relates to the electronic transmission of election results and the matter of direct primaries, fall in my respectful view, within the constitutional mandate of the Independent National Electoral Commission (INEC).

The assumption of the National Assembly that it has overriding authority with powers to regulate all aspects of elections in Nigeria is wrong. That is not the position of our law. The National Assembly only provides a general framework for elections through the Electoral Act, but details such as the date and order of elections, the voting procedure including the transmission of election results, and regulation of party primaries are within the constitutional powers of INEC. Please refer to paragraph 15 of Part 1 of the Third Schedule made under section 153 (1) of the 1999 Constitution.

The courts have long-established in a plethora of cases such as PDP V. SYLVA (2012) 13 NWLR (PT 1316) 85, NDP V INEC (2013) 20 WRN 1 AT 45, and PEOPLES DEMOCRATIC PARTY V TIMIPRE SYLVA & ORS (2012) 13 NWLR (PT 1316) 85 AT 122 that the National Assembly through the Electoral Act cannot usurp or fetter the constitutional powers of INEC.

In light of the President’s decision to withhold assent to the Electoral Act (Amendment) Bill; and the uncertainty about the legal framework for the 2023 election, this is perhaps the best opportunity for INEC to stamp its authority as the constitutionally endowed regulator of the Electoral Process in Nigeria. This is supported by section 158 (1) and 160 (1) of the 1999 Constitution. I suggest that INEC should issue guidelines on electronic voting and party primaries. Section 87 of the Electoral Act on party primaries usurps the constitutional power of INEC. I would also respectfully suggest the urgent need to approach the court with a view to a declaration of the role of INEC as the Supreme Constitutional Regulator of the Electoral Process in Nigeria.

Sincerely,

Dr. Olisa Agbakoba SAN