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THE REFORMS/SALIENT FEATURES INTRODUCED BY THE ELECTORAL ACT 2022

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The Electoral Act of 2022 is indeed commendable and a welcomed development in the Nigerian sphere; it has brought in several innovations and refinement that are aimed at deepening democaracy in Nigeria. This means that the new act goes into effect immediately, meaning that INEC can test-run the rules as soon as July this year when states like Osun and Ekiti, in the country's southwest region, will hold elections for new governors.

Some of the key issues where the Electoral Act of 2022 has introduced novel provisions are:

1. Section 3 (3) states that funds for general elections must be released at least one year before the election.

The new Act is specific as to the time in which the monies accrued to the Commision is to be paid.

2. Section 9(6) of the Electoral Act 2022 states: "The registration of voters, updating and revision of the register of voters under this section shall stop not later than 90 days before any election covered by this Act." For Nigerians interested in participating in the 2023 elections, it's time to keep your permanent voter cards (PVCs) closer than ever. This is because under the Electoral Act 2022, persons whose PVCs are lost or damaged 90 days before an election date will not be eligible to vote in that election. In the Electoral Act 2022, INEC must stop voter registration and revision of the voters' register 90 days before election.

This is an amendment to the 2010 Electoral Act (as amended), which provided for voter registration to end 60 days before an election. On card replacement, in the 2010 Electoral Act, Nigerians who lost their voter cards were allowed to apply for new cards up to 30 days before the election.

3. Section 18 of the Electoral Act 2022 states: “(1) Whenever a voter’s card is lost, destroyed, defaced, torn or otherwise damaged, the owner of such card shall, not less than 90 days before polling day, apply in person to the electoral officer or any other officer duly authorized for that purpose by the Resident Electoral Commissioner, stating the circumstances of the loss, destruction, defacement or damage.

(2) Where the electoral officer or any other officer is satisfied as to the circumstances of loss, destruction, defacement or damage of the voter’s card, he or she shall issue to the voter a replacement permanent voter’s card.

(3) No person shall issue a replacement permanent voter’s card to any voter less than 90 days before polling day.

(4) Where the electoral officer or any other officer is satisfied as to the circumstances of the loss, destruction, defacement or damage of the voter’s card, he or she shall issue to the voter another copy of the voter’s original voter’s card with the word “REPLACEMENT” clearly marked or printed on it, showing the date of issue

4. Section 29 (1) stipulates that every political party shall, not later than 180 days before the date appointed for general elections under this Act, submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.

It is noteworthy that this section, which is section 31(1) in the 2010 Act has removed a sentence which says “provided that the Commission shall not reject or disqualify candidate(s) for any reason whatsoever”. This means political parties cannot just submit names of anybody as candidates. Rather, the person must meet constitutional qualification provisions and emerge through valid party primary. This new position gives room for the submission of list of candidates and their affidavits by political parties to the Commission.

5. Section 29(5) provides that any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by the candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court, against the candidate seeking a declaration that the information contained in the affidavit is false. Exclusive Jurisdiction has been conferred on the Federal High Court to entertain complaints that the information contained in a political party’s candidate’s affidavit or document submitted by a political party to the Commission are false.

The current position of the law is a departure from the previous Act which gives anyone the right to complain about the documents submitted to INEC as false, but now only aspirants are at liberty to institute an action for alleged falsified documents. This is a departure from the old position that conferred concurrent jurisdiction in such cases on the High Courts and Federal High Court.

6. Section 29(6) of the Act, provides that the Court can only disqualify a candidate for giving false information in his/her affidavit or document submitted to the Commission if the said false information or document relates to the constitutional requirements foe contesting for the electoral office in question.

This new reform is a codification of the decision in the case of MAIHAJA V GAIDAM (2018) 4 NWLR (PT. 1610) 454, AGI V PDP (2017) 17 NWLR (PT.1595) 386, IKPEAZU V OGAH (2017) 6 NWLR (PT. 1562) 439.

7. Section 34(1) provides if after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14 days. This is to avert issues arising from the death of a candidate in an election akin to what happened in 2015 in Kogi State when Prince Abubakar Audu (deceased) who was the candidate of the All Progressive Congress died during vote counting.

8. Section 47(2) provides that to vote, the Presiding Officer shall use a smart card reader or any other technological device that may be prescribe by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribe by the Commission.

The new act gives legislative backing for smart card readers and any other voter accreditation technology that the Independent National Electoral Commission (INEC) deploy.

9. Section 51 says that the total number of accredited voters will become a factor in determining over-voting at election tribunals. Section 51(2) provides that where the number of votes cast at an election in any polling unit exceed the number of accredited voters in that polling unit, the presiding officer shall cancel the result of the election in that polling unit. (3)states that where the results of an election is canceled in accordance with subsection (2), there shall be no return for the election until another poll have taken place in the affected polling unit.

This new act empowers the Presiding Officer to cancel the result of any election in a unit with excess votes as against the accredited number of voters. It goes to state that another election will not be conducted till after another poll has been taken.

10. Section 54 (2) the Commission shall take reasonable steps to ensure that persons with disabilities, special needs and vulnerable persons are assisted at the polling place by the provision of suitable means of communication, such as Braille, Large embossed print, electronic devices, sign language interpretation, or off-site voting in appropriate cases.

The new Act gives special recognition to people with disability and the necessary assistance to be given to them at polling units.

11. Section 65(1) states that the Commission shall have power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election. (2) A decision to the returning officer under subsection (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceedings under this Act. The new Act goes further to speak on the post-election procedures of collection of results and the review of this if suspected to be delivered in ultra vires with the law.

12. Section 84(5) provides for the failure of a political party to notify INEC of the holding of its convention, congress, conference or meeting as prescribed by the Act shall render such convention, congress, conference or meeting invalid.

This could be interpreted as a departure from the decision of the Apex Court in TARZOOR V IORAER (2016) 3 NWLR (PT. 1500) 463, where it held that the failure of a political party to notify INEC of its congress or convention cannot disenfranchise the political party from fielding candidates at an election.

13. Section 84(12) of the Electoral Act provided that ‘no political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of nomination of candidates for any election.’ But political office holders argued that this amounted to a violation of their right to freedom of association, that they have the right to contest for office. Also, that section effectively took away their power to contest election; and they challenged the provision. The court upheld their contention; both historically and even statutorily, there is precedence of the view that a person holding a government office should resign his or her appointment within a particular period before contesting an election or before the date of an election. In my view, the provision is not discriminatory because it is aimed at addressing a particular mischief. You have a situation where political office holder’s end up serving as delegates in political party primaries and they become the majority of the delegates. By so doing, they are taking democracy away from the people. That is what that section seeks to address. That provision sought to bring democracy back to the grassroots by ensuring that the issue of delegates to the convention or congresses is in the hands of the common people in the villages.

This means that anyone holding a political office such as ministers, commissioners, special advisers and others, must relinquish the position before they can be eligible to participate in the electoral process either as a candidate or as a delegate. In the decided case of NDUKA EDEDE V ATTORNEY GENERAL OF THE FEDERATION, Justice Evelyn Anyadike, held that Section 84(12) of the Electoral Act 2022 was unconstitutional, invalid, illegal, null, void and of no effect whatsoever. She further stated that Section 84(12) when read together with Sections 66(1) (f), 107(1) (f), 137(1) (f) and 182(1) (f) of the 1999 Constitution, was inconsistent with the rights of Nigerian citizens

14.Section 86(1) says “Every political party shall submit to the Commission a detailed annual statement of assets and liabilities and analysis of its sources of funds and other assets, together with a statement of its expenditure including hard and soft copy of its list of members or in such a form as the Commission may require.” Here again, the law is demanding submission of parties’ membership lists. Subsection (4) says “The Commission shall publish the report on such examinations and audit in two national newspapers and the Commission’s website within 30 days of receipt of the results.” It used to be three National newspapers.

15. Section 88 of the new Act which places limitation of election expenses on candidates is very important to note. Sub (2) provides that the maximum election expenses to be incurred by a candidate at a presidential election shall not exceed N5,000,000,000NGN which use to N1,000,000,000NGN; (3) Provides that the maximum amount of election expenses to be incurred by a candidate in respect of governorship election shall not exceed N1,000,000,000NGN use to be N200,000,000NGN; (4) Provides that the maximum amount of election expenses to be incurred by a candidate in respect of Senatorial and House of Representatives seats shall not exceed N100,000,000NGN and N70,000,000NGN respectively, it used to be N40,000,000NGN and N20,000,000NGN respectively; (5) In the case of a State Assembly election, the maximum amount of election expenses to be incurred by a candidate shall not exceed N30,000,000NGN which use to be N10,000,000NGN. Furthermore, subsection (6) says “In the case of a chairmanship election to an Area Council, the maximum amount of election expenses to be incurred by a candidate shall not exceed N30,000,000NGN which use to be N10,000,000NGN; subsection (7) Provides that in the case of Councillorship election to an Area Council, the maximum amount of election expenses to be incurred by a candidate shall not exceed N5,000,000NGN which used to be N1,000,000NGN and subsection (8) Provides that no individual or other entity shall donate to a candidate more than N50,000,000NGN which was formerly N1,000,000NGN.

16. Section 90(3) says “A political party shall not accept any monetary or other contribution which is more than N50,000,000NGN unless it can identify the source of the money or other contribution to the Commission;” this is from N100,000NGN prescribed in section 93(3) of Electoral Act 2010. The implication of this is that a lot of monies from anonymous sources could be mobilized to fund political parties in Nigeria which the law is inclined not to allow it happen.

17. Prohibition of certain conducts at political campaigns has been expanded to include political parties, candidates and even aspirants who were previously not included. Thus, section 92(5) provides thus: “A political party, aspirant or candidate of a political party shall not retain, organize, train or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion in promoting any political objective or interests, or in such manner as to arouse reasonable apprehension that they are organized, trained or equipped for that purpose.”

18.Section 94(1) which provides “For the purpose of this Act, the period of campaigning in public by every political party shall commence 150 days before polling day and end 24 hours prior to that day.” Previously, the period of campaign in public was for 90 days. It is instructive to note that section 95(2) states thus: “State apparatus including the media shall not be employed to the advantage or disadvantage of any political party or candidate at any election”.

The current position of the law allows for early commencement of the campaign season. This provision bothers on the limitation on political broadcast and campaign by political parties.

19. Sections 121 of the Act provides for the offences of Bribery and Conspiracy while Section 127 provides for the offence of Undue influence; both of which criminalizes vote-trading.

20. The issue of procedure for conduct of elections to local government areas. This is also one of the key innovations in the 2022 Electoral Act. Section 150 of the Act has adopted the same procedure that is applicable to elections in the Area Councils of the FCT to apply to all the local governments in the country. Although, there is a brewing controversy in that novel provision because the tenure of office as provided by the Electoral Act of 2022 is four years for the Area Councils in the FCT, and then section 150 now says that same procedure regulating the conduct of elections in the FCT shall be the same and applied with equal force as the procedure regulating elections to Local Government Areas by any state commission in the country; that means where a state electoral law has prescribed two years as a tenure, then that provision will be in conflict with the provision of Chapter 6 of the Electoral Act 2022, because under that chapter,  the tenure is four years. Section 150(1) of the Act is saying that procedure should apply to all the states of the federation.

So, we have a patent conflict between the State laws and the Electoral Act, which might be subjected to judicial interpretation.

ELECTORAL ACT 2022, REFORMS BY Y.M.ZAKARI ESQ & T.B.IKIBA