BY Samson Itodo
As the world eagerly anticipates Africa’s biggest election in 2023, policy capture, process manipulation, and geo-politics are defining the electoral framework reform process as veto players exercise their preferences for policy outcomes. Within the Nigerian context, public confidence in the viability of electoral reforms to address the intractable challenges with Nigerian elections is unquestionable. Unfortunately, this confidence is undercut by political entrepreneurs who are driving the reform process. These actors are determined to substitute public interest for private political gains. Equally undermining public confidence is the limited instrumental outcomes of previous electoral reform efforts. As custodians of public interest, the National Assembly and the executive arms of government bear the burden of ensuring that the current reform process produces sustainable reforms, not ephemeral outcomes. Doing otherwise is a betrayal of public trust and repudiation of public interest.
Three reasons can be ascribed to the uniqueness of the current electoral reform process—first, the comprehensive approach adopted by the 9th National Assembly. Against the background of confusion and ambiguity impelled by fragments of the 2010 Electoral Act, the National Assembly is repealing the current electoral law to enact what could pass for new electoral legislation. The Electoral Bill 2021 (the Bill) is a constellation of the amendments passed in 2010, 2011, and 2015, as well as electoral amendments passed by the 8th National Assembly and proposals from the Independent National Electoral Commission (INEC), political parties, domestic and international observers. Second, the collaborative approach employed by the leadership of the Senate and House Committees on INEC and electoral matters. Mindful of the battle of supremacy and controversy that plagued previous reform efforts, both committees uncharacteristically resolved to work collaboratively on these ongoing electoral reforms. Joint committee retreats and public hearings were organized, and a joint technical committee comprising INEC and the Ministry of Justice was constituted to build consensus on electoral amendments. All these culminated into a single Electoral Bill 2021, which was considered and passed by both chambers in July 2021. Lastly, the vigilance and intensity of citizens’ engagement in the reform process. It took the oversight and pressure from citizens and civic groups to salvage key electoral amendments like the electronic transmission of results, campaign spending thresholds, and the power of INEC to reject false election results when the leadership of the Senate committee allegedly mutilated the committee’s report and made obnoxious insertions in the Bill before its third reading.
In July 2021, both chambers of the National Assembly passed the Bill under controversial circumstances. In the House of Representatives, opposition lawmakers staged a walkout. At the same time, the Senate passed a controversial vote to subject INEC’s constitutional power to electronically transmit election results to the approval of the National Assembly and the Nigerian Communications Commission (NCC), a body unknown to the country’s constitution. Overall, there were points of convergence and divergence in the voting patterns of legislators. In line with legislative practice and procedure, a conference committee must be constituted by the presiding officers of both chambers to harmonize the positions before transfer to the President for assent.
Points of Convergence
Despite the controversies trailing the amendment process, both chambers voted for several legal prescriptions in the Electoral Bill 2021 that will undeniably enhance the quality of Nigerian elections if strictly implemented. The Bill strengthens the financial independence of the Independent National Electoral Commission (INEC) by ensuring that all funding required for a general election is released one year before the date of an election. By the same token, the Bill will facilitate early preparations and effective election logistics management. Compulsory electoral accreditation of voters was legalized, and gender-sensitive language like “she” instead of “he” only was adopted in some sections of the Bill. Other landmark provisions passed by both chambers include, but are not limited to the following;
Points of Divergence
The voting pattern in the Senate and House of Reps indicates legislators diverged on sixteen clauses in the Bill. As evinced in the voting pattern, most of the legislators voted to advance partisan interests at the expense of public interest. However, this review will focus on three main issues which are germane to the ongoing reforms and the future of the electoral process in Nigeria:
Aside from the unconstitutionality of the Senate’s position, one of the concerns expressed by stakeholders is the probability that data privacy and confidentiality may be compromised. If the Senate’s provision is adopted, Mobile Network Operators may be forced to divulge technical and confidential information to politicians in the National Assembly. The National Assembly could withhold approval if the MNOs decline to share confidential information, thereby jeopardizing the electronic transmission of results and other innovations in the future.
The Dilemmas
The arena of political action will shift from the legislature to the Presidency as soon as the divergent positions are harmonized. As the harmonization process begins, the committee is expected to navigate four dilemmas. First, whose interest should the electoral law serve? Public interest or the deeply entrenched partisan interests of politicians? Second, what level of deliberate discretion should be granted to INEC to determine the procedure for elections? Won’t it amount to legislative overkill to maintain an overly prescriptive approach in an electoral law? Third, how can the high demand for electoral technology be managed against its potential risks to democracy? Lastly, what trade-offs will both chambers make to reach a consensus, given the strong divergent positions on the three crucial amendments highlighted in this article and the political heavyweights behind the proposed amendments?
Public interest should always supersede partisan private interests. As custodians of the public interest, elected representatives are required to respect the will of the people when making laws. Jettisoning amendments like electronic transmission of results and electronic voting will betray public trust considering the current realities and the clamor for these rules. The electoral act provides a broad framework for election management; therefore, the nitty-gritty of the electoral process should be confined to electoral guidelines and regulations. Vesting discretionary and rulemaking powers on INEC in certain circumstances promotes innovation, creativity, and institutional responsiveness to rapid transformations in the electoral space, especially with respect to the digitization of the electoral process. No doubt, electoral technology will improve the integrity of elections, but it presents no guarantee that elections will stay clean. Nigeria cannot afford to surrender her democracy to machines; therefore, maximum safeguards must be instituted when deploying electoral technology.
In the final analysis, reform negotiation and implementation is a highly politicized process and a marketplace for political trade-offs and winsets. The big question is whether legislators see this reform process as an opportunity to reconnect the state to citizens or a window to change the rules of the game to guarantee their victory in the next elections. The riposte I consider viable is sustained external pressure from citizens, without which the chances of long-lasting outcomes are slim.
Itodo is an election, democracy, and public policy enthusiast. Itodo serves as the executive director of Yiaga Africa and the convener of the Not Too Young To Run movement. He is a member of the board of advisers of International IDEA, an intergovernmental organization that supports and promotes democracy around the world. Please send comments and feedback to sitodo@yiaga.org. He tweets @DSamsonItodo.
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