Nigeria: Electoral Amendment May Not Be Binding On 2019 Polls

Election in progress
29 October 2018

There were indications yesterday that the Electoral Act (Amendment) Bill passed by the National Assembly last week may not be applied to the 2019 general election.

About three months to general election scheduled to begin with Presidential and National Assembly elections on Saturday February 16, 2019, the National Assembly is yet to transmit the Bill to the presidency for President Muhammadu Buhari's assent.

A reliable source at the legal department of the Independent National Electoral Commission (INEC) told LEADERSHIP that the commission will not adhere to the amended Act in the forthcoming polls even after being assented to by President Muhammadu Buhari.

The source who did not want his name in print said the reason is to avoid "any legal trap that may arise from the elections, as some politicians may take advantage of the fact that the Act was passed or even signed after the six-month deadline to the next general poll".

Confirming this, spokesman to chairman of INEC, Mr Rotimi Oyekanmi, however told our correspondent last night that if the amended Electoral Act is eventually signed into law, the commission might only implement some of the changes.

"There is now time constraint for the commission," Oyekanmi said, referring to the amended Electoral Act.

He noted that the election won't be entirely electronically considering the time limit it has.

According to Oyekanmi, card readers will be used for the 2019 general election but the entire election won't be electronic.

"We will implement the new amendment but it will be impossible for total electronic voting," he said.

He further explained that the commission prepared for the 2019 general elections without total electronic voting, adding that if there should be total electronic voting, it would be for subsequent elections.

Oyekanmi said in places where card reader fails during the 2019 polls, manual processes would be applied. "We are committed to conducting free and fair elections in 2019", he added.

LEADERSHIP gathered that the N189.8 billion recently approved for INEC by the National Assembly for the conduct of the 2019 general election did not capture electronic voting.

The Senate and the House of Representatives passed the Electoral Act (Amendment) Bill for the fourth time in 2018 on October 23, 2018 and October 24, 2018 respectively, following the adoption of all the 38 clauses recommended for approval by their committees on Independent National Electoral Commission (INEC).

A source in the Senate told LEADERSHIP in confidence yesterday that as at Friday 26, 2018, the National Assembly was yet to transmit the Bill for President Buhari's assent.

The source who did not want his name mentioned said, "The House of Representatives just passed its own version of the Bill on Wednesday after the Senators passed theirs on Tuesday.

"It is after the two chambers have passed the bill and harmonized it that it would be forwarded to the Clerk of the National Assembly, Alhaji Ataba Sani-Omolori, who then dots the i's and cross the t's before covering the Bill with a note to President Buhari for his assent.

"You should not expect all that to have been done before the end of last week. But it is most likely that the Bill will be transmitted to President Buhari this week".

When contacted yesterday, the senior special assistant to the president on National Assembly Matters (Senate), Ita Enang, told LEADERSHIP that he was in Uyo, Akwa Ibom state capital, campaigning and could not make comment on any official matters.

"I am right in Uyo campaigning now and I cannot speak on any official matters until I return to Abuja during the week", he said.

Chairman of INEC, Mahmoud Yakubu, had declared that the bill will not be used for the 2019 general election unless it was signed into law at least six months before the election

Also, a national commissioner of inec, Prof. Okechukwu Ibeanu, said it would only comply with the amendments to the Electoral Act 2010 if it were passed into law six months before the next general election.

Speaking during a function at the Electoral Institute in Abuja, Ibeanu noted that the amendment by the lawmakers was still a proposal, which would need to scale through some hurdles before becoming a law.

This is against the backdrop of the proposed amendment to the electoral law altering the sequence of the 2019 general election, which was passed by the House of Representatives.

Among the 38 clauses recommended for approval by Senate committee on INEC headed by Senator Suleiman Nazif, which were adopted when Senate passed the bill for the third reading is the use of card reader for the conduct of the 2019 general election.

The Red Chamber said, while the card reader would be deployed for accreditation of registered voters, where the card reader malfunctions and another one is not deployed within three hours to the end of voting, election in such unit should be cancelled and a new card reader deployed within 24 hours for a fresh election.

During the 2015 elections, INEC deployed the card reader for the polls, though there was no such provision in the Electoral Act at the time.

The inclusion of the card reader in the Act was done through an amendment to Section 49 by inserting a new subsection (2) which states: "The Presiding Officer shall use a Smart Card Reader or any other similar technological device that may be prescribed by the Commission, for the purpose of accreditation of voters, to verify, confirm or authenticate the particulars of the voter in the manner prescribed by the Commission."

A new subsection (4) of the ACT provides that "where a Smart Card Reader deployed for accreditation of voter fails to function in any unit and a fresh card reader is not deployed 3 hours before the close of the election in that unit or units, then the election shall not hold but be rescheduled and conducted within 24 hours thereafter."

However, a proviso under the same subsection states: "Provided that where the total possible votes from all the affected card readers in the unit or units does not affect the overall result in the constituency or election concerned, the commission shall notwithstanding the fact that a fresh card reader is not deployed as stipulated, announce the final results and declare a winner."

Corroborating INEC's position, Muktar Abanika, an Abuja base legal practitioner, said the smart card reader is merely a technological device setup to authenticate and verify on election day a Permanent Voter Card (PVC) issued by INEC.

He said, "The arguments over its use in 2015 was that INEC neither has the legitimate authority nor capacity to use the card reader

"The use of the card reader for the 2015 general election was also criticized on the premise that its timing was too close for about 70 million Nigerian voters. Considering the fact that the device was relatively a new technology that has not been tested or tried in Nigeria, it was therefore argued that INEC should step aside the card reader in the 2015 general elections.

"To address the issue of the card reader not being tested, INEC hurriedly conducted a test-run for the device on March 7, 2015 (21 days to the commencement of the polls) in twelve states (consisting of 225 polling units and 358 voting points) of the federation.

"Some of the card readers could not function effectively during the test-run. However, INEC promised to deal with the issue.

"This test-run was carried out after the general elections were rescheduled. In order words, INEC could have conducted the general elections without test-running the device. This could have created a disaster for INEC that could only be imagined.

"But if the electoral amendment bill is assented to by President Buhari, can INEC use the smart card for the conduct of the 2019 elections? To me, the answer is no. The device was not used for the conduct of other elections since 2015, not even in Ekiti, Osun or several by-elections held all along.

"This is why the statement credited to INEC chairman that if the electoral amendment bill is not signed into law six months before 2019 election, the commission won't use it for the conduct of the election becomes apt".

Another predicament likely to threaten the adoption of card reader for the conduct of the 2019 elections is that there is no provision for it in the electoral budget.

The Senate on had October 10, 2018 approved a total sum of N189,207,544,893 for the conduct of the 2019 general election expenditure as proposed by INEC, in supplementary budget.

According to a senior staff of the INEC, there could be provisions, which might not be specifically stated, but lobbed under wordings of technical devices".

"I don't want to be quoted because I am not too sure, but I guess there may be something for it in the budget. Again, there is nothing stopping the commission from going back to the National Assembly for additional fund if what we provided for not enough or not at captured in the budget", he stated.

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