30th June 2014: SITUATION ROOM FOCUS MEETING ON ELECTORAL ACT AMENDMENT BILLS.

1.0 INTRODUCTION

The Nigerian Civil Society Situation Room Society (Situation Room) with the support of Open Society Initiative for West Africa (OSIWA) organized a meeting of stakeholders to review pending Electoral Act Amendment Bills before the National Assembly; analyze the implications of the bills on the electoral process; and, discuss civil society (Situation Room) approach and position in respect of the bills. The meeting invited personalities from the National Assembly, resource persons, and the media. Special guests at meeting were the Chairman of the Senate Committee on the Independent National Electoral Commission (INEC), Senator Andy Uba, and the Chairman of the House of Representatives Committee on Electoral Matters. Hon. Jerry Manwe. Both Chairmen discussed extensively with participants.

2.0 OPENING SESSION

Clement Nwankwo of Policy and Legal Advocacy Center (PLAC) welcomed the Committee Chairmen, participants, resource persons and the media to the meeting. He thanked the Chairmen for their presence and OSIWA for their support. He stated that the expectation of Situation Room was that the insights of the Committee Chairmen on the Electoral Act amendment proposals would be needful in ensuring that the law was settled in compliance with the ECOWAS and AU protocols that stipulate the passage of such amendments at least 6 months before elections are held. He reiterated the desire of civic groups to be part of the amendment process.

Jude Ilo of OSIWA reminded members of Situation Room of the importance of the general elections as an opportunity to define Nigerian history and use past experiences to strengthen the electoral process theoretically as well as in practice. He drew attention to the lack of legislative oversight by INEC in the face of flagrant breaches by political parties. Citing the example of recent political campaigns by proposed candidates for the general elections ahead of the stipulated time frame, he questioned whether such elections could be said to be free, fair and credible in the light of such advantage. He also stressed that an adequate legal process was indispensible if smooth conduct of elections is to be achieved.

In his opening address, Sen. Andy Uba reiterated the awareness within the National Assembly of the importance of electoral laws and noted that three draft bills on electoral matters were before the Senate for revision and consolidation. He started by introducing some of the proposed amendment bills and sections to be amended ranging from a proposal to hold all elections on the same date, accreditation of voters by electronic means, compulsory holding of presidential and governorship debates, the use of direct data capturing machines, days of conducting run- off elections to be increased from 7 to 14 days, the creation of a time certain for the Secretary to the Commission and the provision of stricter guidelines to ensure that parties comply with internal democracy.

He further noted the importance of the 2015 elections in view of the fusion of various opposition parties to form a single coalition and thus more need and pressure on the National Assembly and INEC to provide a level playing field for all. He acknowledged the Senate’s awareness of the ECOWAS and African Union protocols and was emphatic that the Senate would do all that was required to ensure that the amendments were passed in compliance of such agreements and in line with its mandate to continue to amend the flaws in the legal regime of election administration in Nigeria. He thanked the Nigerian Civil Society Situation Room for providing a platform to critically evaluate the bills, which he acknowledged would undoubtedly serve as feedback on the current amendment process.

Elaborating on the Electoral Act Amendment Bill before the House of Representatives, Hon. Jerry Manwe stated that the bill was yet to be considered in the House. He highlighted that the foundation to an independent election could only be attained where there was collaboration between the three arms of government and stakeholders in the process.

Participants raised the following observations in response to the Chairmen’s remarks:

2.1 QUESTIONS/ COMMENTS/OBSERVATIONS

The National Assembly vacation period is approaching. How fast can the Bills be passed in other to have it in place during the upcoming 2015 elections?
The public perception of INEC is still characterized by a level of mistrust. Can total independence of INEC be achieved? If such independence is possible, how can CSO’s support the process to ensure that such input is contained in the proposed amendments?
INEC should be encouraged to maintain a level playing field for free and fair elections.
Important issues in the Electoral Act are of concern such as instances where political parties exceed permissible campaign fund ceiling when campaigning. In such a case, how can compliance be achieved?
What can be done to resolve anomalies witnessed before elections such as issue of unapproved early campaigns and unlawful conduct by some political parties, candidates etc.?
How are the Amendment Bills of the Electoral Act moving along with the ongoing constitutional amendment process which has been pending for over two years in the National Assembly?
What practical steps have the Senate and the House Committees taken to ensure the passage of the amendments in line with internationally accepted standards?
How far are sections 31 & 87 of the amendment proposals intended to go in terms of empowering INEC to carry out its functions?
There is need for INEC to exercise some legislative oversight over political parties when the candidates presented by such parties do not meet the criteria required.
What is the National Assembly doing to appropriate the necessary funds to INEC in order to ensure the implementation of these amendments?
What is the status of unclaimed Permanent Voter’s Card (PVC)?
A third of eligible voters in Ekiti State were unable to collect their permanent voters card before the governorship election in the State. There is fear that if this happens during the general elections, it could lead to a disenfranchisement of voters at the national level, therefore it is paramount that INEC address this issue.
Presently, only political parties may have access to a voter’s register. It is important that CSO’s also have such right enshrined in the Electoral Act, as having access to the register is a foundation to free and fair elections.
In view of the prevalent violence in the country and the high number of physically disabled casualties encountered, the National Assembly ought to put in place laws that specifically consider persons with disability- especially during elections.
Persons with disabilities need to enjoy protection to ensure equal participation. Some persons with disabilities have expressed interest to contest elective positions.
Will elections hold in the North East states under a State of Emergency?
There needs to be a stipulated time frame for dealing with pre-election matters. Pre-election matters from the 2011 elections are still pending in court at this time. Does the Bill provide any timeline as to when these disputes can be settled?
Electoral offences need to be dealt with by provision of an Election Offences Commission.
Both chambers in the National Assembly need to critically examine the State Independent National Electoral Commissions (SIECs) in the light of the criticisms directed against them.
State Independent Electoral Commissions (SIECs) needs to be sensitized and strengthened to enable them gain independence and consequently ensure a credible national election.
A cross-section of Nigerians hold the view that the amendments will not be passed based on the fact that it took the National Assembly a time frame of about 4 months to pass the Electoral amendments before the last general elections and less than 6 months to pass the constitutional amendments. There are concerns that the National Assembly is taking too long to pass the current amendment proposals. What are the challenges in driving the process forward and how can civil society as a constituency assist/work with the National Assembly to ensure that the Electoral Act amendments are passed on time?
A provision in the bill should be included where INEC is allowed to promote inter party democracy.
The legal process must be strengthened to ensure that persons who breach the Electoral Amendments are punished to foster the spirit of a transparent democracy.

2.2 RESPONSES FROM COMMITTEE CHAIRMEN

Some of the issues raised can only be properly addressed by INEC.
On INEC’s 2014 budget: The Commission was not short-changed. It presented a 45 billion naira budget and through advocacy by members of both arms of the National Assembly, it was allocated what it asked for. However, further allocations will be provided for it in the Supplementary Budget Bill.
There is a budgetary process problem in Nigeria but the House Committee on Electoral Matters has always canvassed in support of ensuring INEC’s proposal of adequate funding are met.
All issues on proposed amendments that are of concern should be raised during public hearings.
On State Independent Electoral Commissions (SIECs): This is already being amended under the Constitutional Amendment Bill as are a lot of other posed concerns.
On the issue of unclaimed PVCs: Motions are on the floor of both Houses of the National Assembly on this issue. INEC had been invited to the National Assembly to decipher where the problem is and it explained to both Houses that until election is seen as a process of high importance through provision of adequate storage facilities, ad-hoc staff, absence of budget constraint etc., then a lot of logistics issues would be in the way. That being said, unclaimed PVCs will not be destroyed. Instead, there will be a time limit for its collection even after the deadlines so as to ensure full participation in the upcoming 2015 elections.
The National Assembly is working towards ensuring adequate participation of persons with disability.
An amendment to the Constitution to create a tribunal to deal specifically with electoral offences and save time has been proposed by the House of Reps. Hopefully before 2015 elections, the amendment will be passed.
The ongoing constitutional amendment exercise is partly a reason for the delay in the Electoral Act Amendment procedure as some of the amendments are also contained in the Constitutional amendments.
Further strengthening of INEC’s independence is also being looked into by the National Assembly to tackle present loopholes.
INEC was financially constrained after the payment of its ad-hoc staff and the purchase of direct data capture machines for polling units since many of the machines purchased at the last general elections had become obsolete.

3.0 PRESENTATIONS

The following papers were presented at the meeting:

An Overview/Analysis of Electoral Reform Bills Before the National Assembly and its Implementation on the Electoral Process by Hon. Nnaemeka Celestine Ughanze, Lawyer & Former Member of the House of Representatives
What Approach for Civil Society Groups on Pending Electoral Amendment Bills by Barr. Festus Okoye, Executive Director, Human Rights Monitor

HIGHLIGHTS OF PRESENTATIONS

3.1 AN OVERVIEW/ ANALYSIS OF ELECTORAL REFORM BILLS BEFORE THE NATIONAL ASSEMBLY AND ITS IMPLICATIONS ON THE ELECTORAL PROCESS BY N.C. UGHANZE

Hon. Ughanze started by commending the Situation Room for organizing the meeting on Electoral Reform Bills. However, he raised concerns on time constraints for passing the said bills, which would make it impossible for the political parties and INEC to adjust before the 2015 elections. He went on in his presentation to discuss and explain select provisions of the amendment bills and its implication as follows:

There is a short time frame for amendment. Amendment should have been done at least a year ago to enable INEC adjust to the new requirements. For instance, the direct data capturing machines that have been proposed in one of the new bills must be provided in all polling units. If this passes, there would be insufficient time to do this.

Section 11– The House of Reps seeks to insert a new sub-section 4, 5 and 6, which deals with the appointment of election observers and monitors by INEC, their conduct and the requirement of their report to be submitted to the Commission and the National Assembly within 30 days after the declaration of the election result. In the past, INEC has been accrediting observers and monitors, but there was no legal framework for doing so. Therefore, this amendment will expressly confer observers their due recognition before the law.

Section 13– Currently, an application for transfer of registered voters from one center to another must be done within a 30-day period before the date of an election, but the House of Representative is proposing to extend the time frame to 45 days. The Senate on the other hand is proposing 60 days in order to give INEC enough time to carry out its functions. 60 days appears to be more appropriate.

Section 25– The Senate suggests a replacement of section 25 (1) & (2) with new section 25 (1) (2) and (3) where all elections: Presidential, Governorship, National Assembly and State House of Assembly will now be held in one day. The proposed amendment is cost effective as long as voter education is extensively carried out before the Election Day.

Section 29– The House of Representatives is proposing a new paragraph 29 (1) (b) which empowers INEC to give directions to security personnel and assign them duties during elections. However, their role is strictly restricted to the distribution and delivery of election materials only. This amendment would ensure that the security forces work under the supervision of INEC to ensure synergy and curb excesses of the military during elections.

Section 31– Both Houses made similar proposals by first subjecting it to s. 87 and by amending s.6. It states that where a person who is not qualified to contest for an election has contested and won, as the court is disqualifying him, the court shall direct that he vacates his office, while the next person with the highest number of votes cast who met the qualification criteria shall be declared elected. The Senate alteration is more comprehensive as it gives power to the Court to disqualify any candidate who wins an election despite his non-qualification to contest under the Electoral Act, and direct the vacation of his office. This gives room for the next person with the highest number of votes cast and who is found qualified, to be declared elected.

Section 33- The House of Representatives is proposing an amendment to insert a new subsection 2 which will require a political party whose candidate has died or withdrawn, to submit the name of the aspirant who scored the second highest number of votes at the primaries as the substitute.

Section 52 (2)- The amendment here proposes that INEC determines the mode of voting. If passed, it would enable INEC determine when and how to introduce the use of electronic voting in elections.

Section 87– Both Houses made similar proposals to this section, which deals with nomination of candidates by political parties. The Senate version provides that, where a political party fails to comply with the 1999 Constitution or the Electoral Act in the conduct of its primaries or nomination of candidates for elections, such candidate shall not be included in the list of nominees for the election. The proposal here will curb impunity by political parties, as INEC will be vested with the regulatory power to ensure internal democracy is followed. The House version provides that candidates who feel that the provisions of the Act or party guidelines were not followed during nominations can seek redress from the court. The Senate version is preferred because it gives no room for inclusion of an unqualified person in the first place.

Section 100– Both the Senate and the House proposed provision of presidential and governorship campaign debate for aspirants into the offices. However, under s.100 (6) of the proposal from the House of Representatives, INEC is given the power to impose sanctions including fines, suspension or closure of media houses who fail to give equal media access to candidates or carry out campaign broadcasts in contravention of the provisions of the Act. It is suggested that such powers be left to the Courts.

Section 123– Both Houses seek to include a new subsection 3A which aims at punishing polling officers, political parties, or party agent for 3 years if found guilty of conspiracy to make a false declaration of result of an election.

Paragraph 51 of the 1^st Schedule of the Electoral Act– The House of Representatives recommends the deletion of sub-paragraphs 1 & 2 in the current law which deals with instituting petitions against INEC for the wrong of its officers instead of stating the specific names of those individuals. This will pose a high inconvenience, as petitions would be clumsily drafted. Moreover, it would not be in the interest of justice if allowed. If INEC is made a party in a petition, it should be deemed to be defending the petition for itself and on behalf of its officers and all other persons engaged to act on its behalf.

3.1.1 QUESTIONS/COMMENTS

The proposal by the Senate on section 87: It is unclear who determines whether political parties are in compliance? Should it not be left to the courts to decide?
Section 87 must be read in conjunction with Section 31
It would be better for regulation of media houses to be vested in the Nigerian Broadcasting Commission
On issue of including just INEC in an election petition suit on behalf of its officers (Paragraph 51 of the 1^st Schedule). Such amendment may create a haphazard situation where so many officers are included in an election petition. However, his provision would be inapplicable where a criminal accusation is leveled against such persons.
There should be an effort to limit the role of armed officers in elections.
Where a political party is in breach of internal democracy, the person with the next highest number of votes should be submitted rather than punish the party altogether.
Proposed amendments to sections 31 and 33 should be reviewed. It seems prone to abuse by political godfathers.
On the prohibition of electronic voting in the current law under s.52, why was electronic voting suppressed? It is evident that this will curb a lot of electoral offences and waste of funds.
Amendment expressly accrediting observers in (section 11) is a welcome development but the reports should also be looked into to include that the document be tendered as evidence in court.
The 30-day period for submission of observer reports is inadequate and should be refused.
The criteria for accreditation of observers should be expressly stated in the proposed section 11.
Section 31, which addresses disqualification of unqualified candidates, needs to be tackled so that candidates are properly screened before they are even allowed to contest in the first place.
Prefers the approach taken in the amendment proposal under section 31, as it is an insufficient punitive measure for the Courts to merely declare that a candidate has been disqualified.

3.1.2 RESPONSES

On section 87, it is INEC that determines whether political parties complied with the Electoral Act, Constitution and guidelines of primaries and has the power to reject such candidate that emanates from such misconduct.
Parties must begin to follow the democratic process. Prefers the approach taken in the proposed amendment to section 31 as it is an insufficient punitive measure for the Courts to merely declare that a candidate has been disqualified.
The proposed amendment to section 100 is not sacrosanct. Ordinarily, this should be within the ambit of the Nigerian Broadcasting Corporation. However, perhaps INEC may be able to enforce the provision upon the presentation of a court order to do so.
Paragraph 51 of the First Schedule should not be removed as a matter of convenience as INEC should be made responsible for the acts of officers under it. Many people perceive that more justice has been achieved by sub paragraphs (1) and (2) of Paragraph 51 of the 1^st Schedule of the Electoral Act. Hence, that the present alterations are unnecessary.
The military were used for various functions in the past but with the proposed section 29, it is a good provision as it expressly tells them what to do and not more. Alteration to section 29 to use the military will be strictly for safeguarding distribution and delivery of election materials only.
On section 31 and 33 of the proposed amendments, it is a matter of democracy since runner ups are also voted for and so should be encouraged to take over.
On the use of electronic voting machine: it is a welcome development especially as the proposal is emanating from the Senate.
On the 30-day period of submitting observer reports under section 11: it seems like a reasonable time, but could be expanded since the bill is still in a proposal stage.

3.2 WHAT APPROACH FOR CIVIL SOCIETY GROUPS ON PENDING ELECTORAL AMENDMENT BILLS BY FESTUS OKOYE

A good electoral and constitutional framework is the foundation to free and fair elections in Nigeria.
Onus on civil society and all other stakeholders to ensure that the Electoral Commission conducts credible elections and that all activities of stakeholders are done in compliance with the law and the constitution.
Differences in the amendments of the Electoral Act passed in August 2010 and December 2010.
For instance, under the amendments in the Electoral Act 2010 (August 2010), political parties wishing to conduct any convention, congress, conference or meeting must give INEC a 21-day notice.
Also, the nominations of candidate for elections were through either direct or indirect primaries. A presidential candidate under the said provisions could only emerge after a Special and National Convention. A Governor emerged only after the conduct of a Special Congress.
Section 25 was also amended to provide for the sequence of elections.
The amendments in December 2010 amended 38 sections of the Electoral Act, 2010.
The previous amendment included a proviso to section 31(1) which prevent INEC from disqualifying any candidate for any reason whatsoever and remove the criteria that stipulate the emergence of a Presidential candidate through a Special Convention where indirect primaries as conducted as contained in the August amendments.
Some of the members of the National Assembly have no clue or understanding of what lies before them and thus create a lot of inconsistencies.
CSOs need to continue in their advocacy of educating lawmakers in understanding and applying themselves in the right and proper way.
Onus on CSO’s to obtain the bills and critically examine whether the Bills are more progressive, find out the sponsors, and learn to properly engage them.
Imperative for CSO’s to frame their message in a manner that define their strategy and attend any public hearings that will aid in articulating their position and engaging in the process.

3.2.1 QUESTIONS/COMMENTS

Need to clarify the term “CSO position” unless there is a common CSO stance applicable to all CSO’s in Nigeria.
Section 31 on issue of disqualification: this is not very clear as it seems to be imposing on the courts to grant reliefs that might not be included in the litigant’s petition. This needs to be reviewed and points need to be expressly stated to cover all bases.
Nigerians need to be more aware to be able to curb such amendments and nip them in the bud early on (Electoral Act December 2010).
There is usually a long stage between the presentation of a Bill and its eventual passage. How can CSO’s galvanize to ensure the passage of these amendments?
How can CSOs engage some of the sponsors of these bills to ensure a better understanding and achieve synergy?
How can CSOs be involved in amendments of Acts in order to have a say on issues affecting Nigerians by interacting with the Committees in the National Assembly?
To put points across, CSOs should forward their memos to Committees before the date of the public hearings so that by the date of the hearing, members of the committee are already made aware of your position.
Issues that govern people with disability should be included in the process and CSO’s must rise to protect the need of the disabled.
The engagement of CSO’s should go beyond public hearing.

3.2.2 RESPONSES

CSOs need to subscribe to the notion of free, fair and transparent elections.
CSOs have met in different scenarios to form a common goal, however improvements can be made.
Media engagement is very important. However, issues must be understood first.
All present groups are advised to meet so as to attend the public hearing on amendment of the bill in the National Assembly and make sure their presentations are documented. There, concerns can be raised and addressed appropriately.
CSOs must at all times strive to defeat bills with superior arguments and not aggressiveness.
CSO’s are not homogenous. Neither are they of the same ideological representation.
Notwithstanding, Nigerian Civil Society Situation Room must decide its stance on the Bills.
The proviso to section 31 of the Electoral Act can only be understood by seeing the section in its original form.
Media advocacy is key but appreciation of the issues the Bills raise is pertinent.

4.0 CONCLUSION

Discussions at the meeting were interactive and informative as participants were educated better on the contents and implications of the Electoral Act Amendment Bills. The meeting provided a platform for the Chairmen of the National Assembly Electoral Matters and INEC Committees to elucidate on their plans to amend the Act. They conveyed the commitment of the National Assembly to pass the bills before commencement of the legislature’s annual recess at the end of July in conformity with international best practices and to take into consideration, inputs from all stakeholders.

OVERVIEW OF ELECTORAL BILLS BY HON. NNAEMEKA C. UGHANZE

What Approach for CSOs on Pending Electoral Amendment Bills by Festus Okoye

A Bill For An Act To Amend The Electoral Act, 2010 (SB. 455)

House Electoral Act (Amendment) Bill 2014

A Bill for an Act to Amend the Electoral Act 2010 (SB 266)

A Bill for an Act to Amend the Electoral Act 2010 (SB 379)

National Conference 2014 Committee on Political Parties & Electoral Matters Report