National assembly and strangulation of the electoral system

Ebiseni.

By Shola Ebiseni 

WHILE Nigerians were still battling with the absurdity of the primitive legislation that erected impregnable obstacles on the way of electronic transfer of election results, the Nigerian Parliament, that is, the National Assembly is up with yet another move to strangle the electoral process and by extension, the Nigerian democracy. As the National Assembly was rushing for recess in July, it delved into two pieces of legislations that are of most important effects, one for the economy and the other on the nation’s political life. It was the Petroleum Industry Bill (now Act) which muzzles the main stay of the economy and the Electoral Act which, in the main regulates the nation’s political life. 

The NASS decided to take away the last and least vestiges of independence of the Independent National Electoral Commission, INEC. Such little issue as electronic transfer of results was denied INEC which by Section 52 (2) and (3) must take permission from the Nigerian Communications Commission, NCC, verified by the NASS and on which report the legislature may consider electronic transfer of election results. Not done, the NASS members who are evidently the latest comprador in town, resolved to increase campaign expenses with that of the President as N15 billion; governor, N5 billion; senator N1.5 billion, House of Representatives member, N500 million; and State House of Assembly member, N50 million.

After much public outcry, the NASS has revisited the Electoral Act. On Clause 43 concerning ballot boxes and voting devices, it is now proposed, subject to the assent of the  President that “The Commission (INEC) shall provide suitable boxes, electronic voting machine or any other voting device for the conduct of elections.” Specifically the Bill now provides, “subject to section 63 of this Bill, voting at an election and transmission of results under this Bill shall be in accordance with the procedure determined by the Commission."

Happily, the NASS has come to terms with the reality of the 21st Century on the need to strengthen our democracy and its integrity by the deployment of modern technology. They probably took a cue from Governor El-Rufai who, for two electoral seasons, has conducted Local Government elections on the basis of electronic voting. By the way, Kaduna State is the fifth largest state in Nigeria with the size of 46,053 square kilometres and enormously vast rural areas. El-Rufai is the only governor in Nigeria who does not mind the opposition having local government chairmen, elected through the electronic devices. This shall surely be counted for him in righteousness. In other states, the primitive attitude is that the party of the governor, notwithstanding the awful performance of his government, must win all seats available. 

Nomination of candidates by parties. Of utmost concern to lovers of Nigerian democracy is Clause 87 of the proposed Act on nomination of candidates by parties. The various new provisions by the NASS include that “a political party seeking to nominate candidates for elections under this Bill shall hold direct primaries for aspirants to all elective positions, which shall be monitored by the Commission,” “the procedure for the nomination of candidates by political parties for the various elective positions by direct primaries shall ensure that all aspirants are given equal opportunity of being voted for by members of the party and given opportunity to have agents for the purpose of monitoring the primaries”; “the procedure adopted for the direct primaries shall be spelt out in a guideline to be issued by the political party and filed with the Commission at least 14 days before the primary election”; “a political party shall maintain register of its members and provide in the guideline for the conduct of the primaries that the register of its members shall be used for accreditation for the primaries"; “the Commission shall deploy personnel to monitor the primaries in all the centres where the direct primaries are held”; “every aspirant cleared by the party to contest at the primary not later than fourteen days to the primary shall be entitled to a copy of the guideline for the conduct of the primaries in which he or she is participating”.

The centrality of political parties to the Nigerian nation and its democracy is attested by Section 222 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that “no association by whatever name called shall function as a political party unless the names and addresses of its national officers are registered with the INEC. Whereas, regulation of political parties is item 56 on the exclusive legislative list, the Nigerian political parties are yet to pull together and in courage challenge several laws that have been made by the legislature but not intended by the grundnorm. 

The provisions of the constitution, by and large, allows political parties, greater laxity in the conduct of its internal affairs. Even the courts, until the National Assembly began to make laws on the management of political parties, would generally refrain adjudication thereon. There is no doubt that the shenanigans of some leaders and elected party officials call for concerns that laws be made to check their excesses. In this regards, much progress have been made in ensuring that only persons properly nominated by political parties eventually have their ways to offices and inheriting the efforts of imposed candidates whose names were actually on the ballots. Examples abound in both the legislative and executive arms where serving officers have had their return certificates withdrawn by order of courts of competent jurisdiction.

However, the present amendment to the Electoral Act proposing direct primary, as the exclusive means by which political parties may nominate candidates for elections, is flawed in several respects and cannot stand the scrutiny by the constitution. It will make the electoral process draconian and certainly beyond the reach of many Nigerians through prohibitive costs of primary elections. The essence of democracy is freedom of choice.

Essentially, Section 40 of the Constitution provides that every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests. The only proviso to that fundamental right in respect of political parties is that it shall not derogate from the powers conferred by the constitution on INEC on the recognition of political parties. Thus any law by the National Assembly which derogates from or frustrates the enjoyment of this right cannot stand the consistency provisions of the constitution.

Imposition of direct primary by legislative fiat, with no options for political parties and their members, in nominating candidates for elections could not have been the intendment of the constitution. It leaves a sour taste in the mouth that all political parties must adopt the same methods. The opportunity to think out of the box is what gives each political party its own edge at an election. At the last count, there are 91 political parties in Nigeria with some more currently angling for registration by INEC. Of course, with the constitutional provisions for every party to have its head office at Abuja, its officers who must reflect two thirds of the states of the federation and elected on regular intervals of not exceeding four years, it is clear that direct primary by a political party is a general election across the federation. Where the primaries of the parties fall within the same period and are mandated to be monitored by the INEC, it is only possible if the constitution is amended for the establishment of another Commission on party primaries. 

One of the canons of interpretation of statutes is the mischief rule which requires that the court first looks into the present state of the law and literally probes the minds of the law makers to discover what mischief or crisis the new legislation intends to correct. If the intention of the National Assembly considers indirect primary expensive and susceptible to manipulation, direct primary is much more expensive beyond the reach of most party members except those currently holding positions who are considered the latest bourgeois of the political system. As a matter of fact, citizens are already saying the law was deliberately made by the NASS, whose embers only could afford direct primary where aspirants are supposed to have agents in at least all the electoral Wards of the constituency.

Except those who may want to deceive themselves, those who control the parties will continue to hold sway whichever method of nomination, direct, indirect, consensus or Kabiyesi pronouncements, that may be adopted. Go and ask Ambode what happened to him, even as a sitting governor, on his second term nomination as governor of Lagos State. Before him, when Adamu Attah resisted elder Saraki as old Kwara kingmaker, the ruling NPN lost the governorship. The story of how Otedola became governor of Lagos is not different, just like Barkin Zuwo had his way past the suave and ebullient Abubakar Rimi when the latter, even as sitting governor of Kano, in the second Republic thought he could jettison his king maker, the enigmatic Malam Aminu Kano.

Besides, it t is clear that in their regimental direct primary process of nomination of candidates for elections, the National Assembly were not mindful of smaller parties which defines multi party democracy and makes it thrive. Nigeria does not belong to the APC, PDP and their comprador members in the National parliament. Nigeria, we hail thee.

*Ebiseni is the Secretary General, Afenifere.