…Says Direct Primaries Undemocratic, Lead to Harvest of Litigation, Monetisation of Political Process

…Reasons Adduced for Withholding of Assent Grossly Misleading, N/Assembly Should Pass Bill Into Law…Falana

President Muhammadu Buhari has explained why he withheld assent to the Electoral Act (Amendment) Bill 2021 in spite of mounting pressures from civil society that it contains provisions that will make the country’s elections more transparent and credible.

President Buhari in his letter read by Senate President, Dr Ahmad Lawan, hinged his decision on the imposition of direct primaries as approved by the National Assembly, for picking candidates by political parties in the amended Electoral Act as a violation of the spirit of democracy.

This is coming as Lagos Lawyer, Mr Femi Falana, a Senior Advocate of Nigeria (SAN), threw specks at reasons adduced by the President for withholding of assent on the Electoral Bill, saying it is “grossly misleading”. Urging the National Assembly to override the President and pass the bill into law, he also accused Buhari of being a beneficiary of the direct primary conducted by the ruling All Progressive Congress (APC) in 2019.

According to Buhari, with direct primaries, there will be a plethora of litigation from party members and stakeholders, just as he said that allowing the process would fuel corruption as well as encourage over monetisation of the political process.

In the letter read during plenary after the Senators came out from a closed-door session that was held from 10.42 to 11.42 am, President Buhari said that Direct Primaries would raise credibility issues as well as lead to undue interference.

Buhari also said that he was withholding assent to the Bill because Direct primaries would cause a huge financial burden on political parties, the Independent National Electoral Commission, INEC, the economy and security agencies, adding that the process is also undemocratic.

The National Assembly had on Tuesday, 9th November 2021, passed the much anticipated Electoral Act Amendment Bill 2021 after both the Senate and the House of Representatives deliberated extensively on the report of the Conference Committee on the bill.

The Senate had on that day, passed the harmonized version of the Electoral Act (Amendment) Bill, 2021.

The passage followed the consideration of the report of the Conference Committee of the Senate and House of Representatives on the bill.

In line with customary legislative procedures, the two chambers had in September set up Conference Committees to reconcile disparity in the versions of the bill as passed by the Senate and the House of Representatives.

Consequently, the National Assembly had on November 19, 2021, transmitted the bill to President Buhari for assent in line with Section 58(4) of the 1999 Constitution that “Where a bill is presented to the President for assent, he shall within 30 days thereof signify that he assents or that he withholds assent.”

This is the fourth time that Buhari has withheld assent on the Electoral Bill, leading many to doubt his sincerity on his avowed resolve to join in the campaign to enthrone a transparent and credible elections in the country.

In March 2018, Buhari rejected the Bill on the grounds that it will usurp INEC’s powers on electoral matters.

Similarly in September 2018, he rejected the Bill on the ground that some clauses needed adjustments and mechanical revision.

In December 2018, he also rejected the bill on the account that it was too close to the 2019 general elections. The county was then left with the Electoral Act 2015 to conduct the 2019 general elections.

President Buhari’s Letter

Titled, “Withholding of Assent to Electoral Act Amendment Bill 2021,” the President’s letter read, “Further to the fetter dated 18th November, 2021, forwarded for presidential assent, the Electoral Act (Amendment) Bill 2021, as passed by the National Assembly, I have received informed advice from relevant ministries, departments and agencies of the government, and have also carefully reviewed the bill in light of the current realities prevalent in the Federal Republic of Nigeria in the circumstances.

“Arising from the review, Rt. Honourable Speaker may wish to note that the conduct of elections for the nomination of party candidates solely via direct primaries as envisaged by the Electoral Act (Amendment) Bill 2021 has serious adverse legal, financial, economic and security consequences which cannot be accommodated at the moment considering our nation’s peculiarities. It also has implications on the rights of citizens to participate in the government as constitutionally ensured.

“The Electoral Act (Amendment) Bill 2021 seeks to amend certain provisions of the extant Electoral Act 2010. Part of the objective of the bill is the amendment of the present Section 87 of the Electoral Act, 2010, to delete the provision for the conduct of indirect primaries in the nomination of party candidates such that party candidates can henceforth only emerge through direct primaries.

“Arising from the review, Mr. Speaker may wish to particularly note the pertinent issues implicated as follows to wit:

“The conduct of direct primaries across the 8,809 wards across the length and breadth of the country will lead to a significant spike in the cost of conducting primary elections by parties as well as increase in the cost of monitoring such elections by INEC who has to deploy monitors across these wards each time a party is to conduct direct primaries for the presidential, gubernatorial and legislative posts. The addition of these costs with the already huge cost of conducting general elections will inevitable lead to huge financial burden on both the political parties, INEC and the economy in general at a time of dwindling revenues.

“The indirect consequences of the issues of high cost and monetisation are that it will raise financial crimes and constitute further strain on the economy. It will also stifle smaller parties without the enormous resources required to mobilise all party members for the primaries. This is not healthy for the sustenance of multi-party democracy in Nigeria.

“In addition to increased costs identified above, conducting and monitoring primary elections across 8,809 wards will pose huge security challenges as the security agencies will also be overstretched, direct primaries will be open to participation from all and sundry and such large turn-out without effective security coordination will also engender intimidation and disruptions, thereby raising credibility issues for the outcomes of such elections.

“The amendment as proposed is a violation of the underlying spirit of democracy which is characterised by freedom of choices. Political party membership is a voluntary exercise of the constitutional right to freedom of association. Several millions of Nigerians are not card carrying members of any political party. Thus, the emphasis should be on enabling qualified Nigerians to vote for the candidate of their choice during general elections as a means of participation in governance and furtherance of the concept of universal adult suffrage or universal franchise.

“The proposed amendment may also give rise to plethora of Iitigations based on diverse grounds and issues of Law, including but not limited to the fact that the proposed amendment cannot work in retrospect given that the existing Constitution of the parties already registered with the Independent National Electoral Commission (INEC) permits direct, indirect and consensus primaries. This real possibility, will, without doubt, truncate the electoral program of the nation as another electoral exercise is imminent towards a change of government in 2023.

“Nigeria is at the moment still grappling with the issues of monetisation of the political process and vote buying at both party and general elections. The direct implication of institutionalising only direct primaries is the aggravation of over-monetisation of the process as there will be much more people a contestant needs to reach out to thereby further fuelling corruption and abuse of office by incumbent contestants who may resort to public resources to satisfy the increased demands and logistics of winning party primaries.

“Direct primaries are also subject or susceptible to manipulation or malpractices as most parties cannot boast of reliable and verified membership Register or valid means of identification which therefore means non-members can be recruited to vote by wealthy contestants to influence the outcome. Rival parties can also conspire and mobilise people to vote against a good or popular candidate in a party during its primaries just to pave way for their own candidates. Whereas where voting is done by accredited delegates during indirect primaries, the above irregularities are not possible.

“Asides its serious adverse legal, financial, economic and security consequences, the limitation or restriction of the nomination procedures available to political parties and their members constitutes an affront to the right to freedom of association. It is thus undemocratic to restrict the procedure or means of nomination of candidates by political parties, as it also amounts to undue interference in the affairs of political parties.

“Indirect primaries or collegiate elections are part of internationally accepted electoral practices. More so, direct primaries are not free from manipulations and do not particularly guarantee the emergence of the will of the people especially in circumstances like ours where it is near impossible to sustain a workable implementation framework or structure thereof.

“In the premise of the above, I hereby signify to the National Assembly that I am constrained to withhold assent to the Electoral Act (Amendment) Bill 2021 in line with the provisions of Section 58(1) & (4) of the 1999 Constitution (as amended). It is my considered position that the political parties should be allowed to freely exercise right of choice in deciding which of direct or indirect primary to adopt in the conduct of their primary elections as their respective realities may permit.

“Please accept, Rt. Honourable Speaker, the assurance of my highest regards and esteem.”

Reasons Grossly Misleading

But Leading Human Rights Lawyer, Mr Femi Falana, a Senior Advocate of Nigeria (SAN), says the reasons adduced by President Buhari for the rejection of the Electoral Bill is “grossly misleading”.

Responding to the Nigerian Democratic Report enquiries on the issue, Falana posits, “The reasons adduced for the rejection of the Electoral Amendment Bill is grossly misleading. Section 87 of the current Electoral Act provides for either direct or indirect primaries. In fact, the APC used direct primary for the emergence of its presidential candidate in the 2019. In other words, President Buhari is a beneficiary of direct primary.”

“By rejecting the Bill on the ground that it provided for direct primary the President decided to throw away the baby and the bath water. Thus, the President rejected electronic voting which he had endorsed when he admitted that he is a beneficiary of electronic accreditation of voters by the use of card readers.

“With respect, direct primary is in consonance with section 223 of the Constitution which has imposed a duty on political parties to elect their officers through democratic elections. There is no provision in the Constitution for imposition of candidates by money bags through indirect primaries.

“The INEC has submitted a bill of N305 billion for the entire 2023 general elections. So who conjured the figure of N500 billion for the primaries to give the impression that it is an expensive venture? In any case, since electronic voting had been adopted by the National Assembly it was going to be used for both primary and general elections. So the cost would have been significantly reduced. The fear of insecurity is a red herring in that political parties have continued to hold huge rallies even in defiance of Covid 19 restrictions imposed by the Federal Government.

“Having rejected to assent to the Electoral Amendment Bill in 2018 and 2021, President Buhari has confirmed beyond any shadow of doubt that his administration will not allow the Independent National Electoral Commission to conduct credible elections in 2023 and thereafter. That is going to be the tragic legacy of the President and the ruling party that were campaigning for electoral reforms before the 2015 general elections.

“The challenge before the National Assembly is to invoke the provision of section 58 (5) of the Constitution to pass the Bill into law by the resolution of two thirds majority of the members. However, if the National Assembly cannot muster the required two thirds majority, section 87 of the Act which allows direct or indirect primaries should be left intact so that the other provisions of the Electoral Amendment Bill 2021 can be passed again by the legislators and assented to by the President,” Falana argues.

Clarion Call On By CSOs

At a press conference held last week in Abuja, Ms Ene Obi, convener, Situation Room, comprising several civil society organizations, said,
“Nigerians had expected a new Electoral Act in 2021 that would create the atmosphere for free, fair and credible elections.

“There have been several progressive amendments to the Bill that will impact positively in our elections and contribute to deepening democracy in Nigeria.”

“It will be a great disservice to the country if the Bill is not assented to in time for the 2023 general elections. We urge the President to sign the Bill into law without further delay”, she said.

Will of Nigerian People

The Nigerian Democratic Report (NDR) reports that a group of civil society organizations had early in December called on President Buhari to urgently give assent to the Electoral Bill 2021, which they say, is in tandem to the will of the Nigerian people for a free and fair elections, in order to seamlessly fastrack preparations for the next General Elections holding in 2023.

Urging the President to honour his avowed commitment to bequeath an electoral system that will guarantee credible, inclusive and peaceful elections, they maintain that the Bill contains specific provisions that are directed at enhancing the quality and credibility of the country’s elections and address certain lacunas in the existing electoral legal framework.

Such provisions in the Bill, according to the group, include: Legal backing for the use of electoral technologies for the purpose of voter accreditation and electronic transmission of election results; extension of restrictive timelines for electoral activities, concise definition of over voting and the conferment of legal authority on INEC to review questionable election results.

They posit that the Bill in its current state will not only encourage increased citizens’ participation in the electoral process, but it will also further enhance the capacity of the democratic institutions to improve the transparency and legitimacy of electoral outcomes.

Their statement signed by eight civil society organizations that have spearheaded the campaign for a credible and more transparent elections, and released in Abuja on Thursday December 3, stated in parts:

“The Presidency on 19th November 2021 acknowledged the receipt of the Electoral Bill 2021 from the National Assembly for Presidential assent.

“The Bill contains specific provisions that are directed at enhancing the quality and credibility of elections and address certain lacunas in the existing electoral legal framework.

“Such provisions in the Bill include: Legal backing for the use of electoral technologies for the purpose of voter accreditation and electronic transmission of election results; extension of restrictive timelines for electoral activities, concise definition of over voting and the conferment of legal authority on INEC to review questionable election results.

“The undersigned Civil Society Organizations welcome the decision of the President to invite the comment of relevant Ministries, Departments and Agencies of government on the Bill. In this regard, the input from the Chairman, Independent National Electoral Commission (INEC), Attorney-General of the Federation and Minister of Justice, Minister of the Interior, Minister of Finance and the Inspector General of the Police are probably the most crucial.

“In their consideration of the Bill, these Office Holders should be guided by the overriding public interest to strengthen our electoral process and the consolidation of our democracy.

Increased Citizens Participation

“It is our firm belief that the Bill in its current state will not only encourage increased citizens’ participation in the electoral process, but it will also further enhance the capacity of the democratic institutions to improve the transparency and legitimacy of electoral outcomes.

“Furthermore, the timely assent to the Electoral Bill 2021 will facilitate early preparations and efficient election administration of the 2023 General Election, which is just 443 days away.

“It must be emphasized that the successful conduct of any elections is predicated on the certainty and clarity of the election legal framework, amongst other factors. This is to preclude any legal uncertainties that may occasion manipulation and subversion of the electoral process.

“It is for this reason that the African Charter on Democracy, Elections, and Good Governance and the ECOWAS Protocol on Democracy and Good Governance requires that any amendment to the electoral legal framework must be concluded at least six months to the date of election.” the group argue.

The group also made the following recommendations:
* The President should timeously assent to the Electoral Bill 2021 which is in congruence with the will and aspirations of the Nigerian people.
* President Muhammadu Buhari must continue to pursue and honour his commitment to bequeath to Nigerians an electoral system that guarantees the conduct of credible, inclusive and peaceful elections.
* Further amendments to the Electoral Bill 2021 by the National Assembly should be undertaken in the
next electoral cycle based on real and perceived lacuna identified in the implementation of the current Bill.

The statement was signed by Yiaga Africa, International Press Centre (IPC), Centre for Citizens with Disability (CCD), Albino Foundation, CLEEN Foundation, Others are the Institute for Media and Society (IMS), Nigerian Women Trust Fund (NWTF) and Premium Times Centre for Investigative Journalism (PTCIJ).