Since Nigeria’s return to civilian ruler-ship in 1999, clamour for amendment of the Electoral Act, especially at mid-point to the four-year lifespan of any administration has become routine. Many Nigerians subconsciously assume that amending the Electoral Act before an election is sine qua non to the validity of such election. The 2023 elections have not been any different. It is 2021 and Nigeria is yet again filled with a cacophony of calls for amendment of the elections governance statute.
Amendments are good. They bring into law lessons learnt from previous experiences and introduce innovations which aim at improving the process. The introduction of the Smart Card Reader, for example, in the 2015 general elections and, the alternated decision between voting concurrently with accreditation or commencing actual ballot after accreditation, are amendments to the electoral rules which ought have aided growth of Nigeria’s democracy.
The Electoral Act is (or should be) a sacred document ranking next in relevance to only the Constitution. It is not just any other law. It defines rules under which Nigerians participate in their government. It stands at the heart of, is integral to and is the fulcrum upon which our democracy rests.
The Electoral Act is one Act most subjected to amendment in this democratic dispensation. I doubt any other law comes close. Are the amendments necessary? Yes. Have they been effective?
Read against apparent retrogression of our elections especially since after the 2015 elections, Nigerians must now dispassionately and objectively interrogate whether our nation’s electoral problems are a function of bad laws or whether they are caused by other factors, beyond merely the law. We must interrogate whether our elections, which results hardly ever reflect the wishes of the people manifested in their votes, are caused by a lack of good laws.
In my mind, the law is not the problem. That our elections do not satisfy basic, acceptable minimum standards for poll integrity and credibility, compared against least democratic societies is symptomatic of the general malaise of Nigeria.
A good student of Conflict of Laws versed in comparative analysis of laws across jurisdictions will contend off the cuff that Kobo-for-Kobo, Nigeria has one of the better bodies of laws of any nation. Nigeria’s laws though often superfolus and duplicitous are arguably always thorough. This is with full prejudice against the current trend of lazy copy-and-paste legislation which has become a defining hallmark of Nigeria’s recent law-making process, especially of the 9th Assembly.
The Electoral Act as is, though not perfect, is good enough law, embodying adequate provisions capable of delivering for Nigeria credible, free, fair and transparent elections. That credible elections continue to elude Nigeria attributes to the lack of commitment by Nigerians to democratic ideals. Our elections, characterized by vote buying, ballot snatching, “ta-ta-ta-ta-ta” and vote suppression is not because there are no laws which prohibit and penalize such conducts. The Electoral Act alreaady contains adequate sanctions for those crimes.
Without doubt, proposed fixes in the long delayed amendment to the Electoral Act –which has suffered from a manifest lack of political will from the President, the leadership of the National Assembly and generally, the ruling Party– are beautiful and necessary. They are capable of improving on the process in no small measures. But, the amendments will not be enough. Nigerians must be cautious as to not allowing ourselves be fooled into euphoria that those amendments are a silver-bullet panacea to our electoral woes. That will be some Pyrrhic victory. The amendments to the Electoral and, creation of an Electoral Offences Commission cannot without more, solve problems of Nigeria’s chaotic elections. Introduction of the Smart Card Readers and the Permanent Voter’s Card have not done much to curtail systemic rigging of elections.
In Nigeria, the law is one thing; its application and enforcement is another. That there is a law guiding against or regulating particular affair does not presuppose a solution to that state of affair. Here, laws are often selectively enforced, many times at the pleasures of personages. Sadly, the Electoral Act is one such law which application is subject to the will of persons.
“Federal might” and “power of incumbency” have become accepted norms in our democracy. They are euphemisms used to justify the manipulation of an electoral process by persons who wield power of control over institutions of State; have unfettered access to public funds for elections and will deploy those ‘assets’ to their favour without accountability, thereby conferring upon themselves an unfair advantage against the competition. Both euphemisms also refer to the connivance of the electoral umpire and their availability to manipulate results to the benefits of the candidate in whose favour “Federal might” and the “power of incumbency” tilts. INEC’s partisan ad-hoc officials and, compromised security agencies play key roles in this regard.
The Smart Card Readers are useless. The permanent voter’s card is useless. Even the votes are useless! They do not determine elections. What needs to change if Nigeria is to have good elections are:
- The propensity of Nigerians (including State actors) to not obeying electoral laws and guidelines
- The proclivity of authorities to not enforcing laws and guidelines; and, where infractions occur, a lack of will to punish infractions.
- A political culture which views election as some sort of combat sport where victory is determined, not by persuasion but by brute force and brigandage.
- A compromised, partisan judiciary blinded by prejudices and biases and bereft of its sense of duty to the law and to truth.
These are the core issues which Nigeria must address if we are to make appreciable progress towards deepening our democracy. Amendments or reforms which do not address those issues will end a dance in cycles. We will need to revisit E;ectoral Amendment yet again.
Politicians and accomplices at INEC and the security agencies will always find ways to circumvent innovations introduced into our elections. Smart Card Readers did not prevent the conduct of the worst, most violent elections in November of 2019. Result of that election was ratified by the judicial system even though the process was roundly condemned by observers. This underscores the need to re-domicile within the ballot, the ultimate powers to determine elections. Not the courts. Not INEC staffers. But the votes.
Nigeria must also realize that elections are a purely political activity. It makes no sense that such activities are conducted by persons whose neutrality, though presumed, is a ruse. INEC is largely populated by persons with political interests. Vice Chancellors appointed as returning officers and academics who act as collation officers are also always partisans. Nigeria must therefore evolve new rules which empower political Parties to determine the composition of the Independent National Electoral Commission. That way, a partisan Jega will declare his interests instead pretend to be neutral while acting as INEC Chair.
The Electoral Act should be amended. Nigerians should then hope that the President assents it this time around. Such amendment and assent should however not give the hopes that victory has been won. Work yet lies ahead