Addressing Nigeria’s unresolved electoral reform issues, By Samson Itodo

…the 2023 elections reinforced five undisputed factors central to rebuilding public trust and enhancing the integrity of Nigerian elections. First, attitudinal change among politicians is a condition for rebuilding public confidence in the electoral process. Second, the electoral governance architecture, especially INEC, requires fundamental reforms. Third, the 2022 Electoral Act contains ambiguities and inadequacies that make the electoral process susceptible to capture and manipulation….

Since the advent of Nigeria’s 25-year democracy, the Independent National Electoral Commission (INEC) and the National Assembly have reformed election laws and regulations before and after every general election. These amendments are designed to address the flaws experienced in previous elections. As more reforms are introduced into the electoral process, efforts by political actors to circumvent the reform also intensify. The 2023 election produced the most politically diverse National Assembly, and several electoral upsets were recorded across states. Notwithstanding, the election failed to meet public expectations due to several reasons, ranging from operational inefficiencies, technological challenges, voter suppression, and non-compliance with electoral laws, amongst others. The period cycle was marked by forum shopping and wanton disregard for the agelong doctrine of stare decisis (judicial precedent), leading to conflicting judgments on cases with similar material facts. In addition, substantial justice was sacrificed on the altar of legal technicalities, which rolled back key reforms to the electoral legal framework and eroded public trust in the judiciary. This prompted the Body of Benchers to constitute a committee headed by the former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, to address this menace of conflicting court judgments.

The enactment of the Electoral Act 2022 was predicated on the belief that a new electoral legal framework would address the intractable problems of election manipulation, electoral impunity, operational inefficiencies and weak democratic institutions plaguing Nigeria’s electoral process. The Act, widely adjudged as the most progressive electoral law in Nigeria’s recent history, produced positive outcomes in the last elections. However, several loopholes were exposed during its first application in the 2023 general election. These ambiguities were the grounds for extensive legal contestations after the elections. Some of these ambiguities include the uncertainty regarding the stage for comparing physical copies of results and electronically transmitted results. Also, the definitions of “transmitted directly” and “electronically transmitted” are vague. It is unclear if the term “transmitted directly” used in Sections 60 and 64 of the Electoral Act, regarding collation of results, refers to electronic transmission. Although INEC was vested with the power to review declarations/returns made involuntarily or contrary to law, Regulations and Guidelines, the modalities and procedures for exercising this power are not prescribed in the Act or INEC guidelines, leaving a vacuum for controversies and uncertainty. A cumulative reading of the proviso to Section 65(1) of the Electoral Act 2022 and Regulation 90 of INEC regulations does not indicate who can file a report, and the procedure for filing a report indicating declaration/return made under duress or contrary to law, Regulations and Guidelines.

 The Current Electoral Jurisprudence Based On Recent Judicial Decisions On Election Cases

1. New evidential threshold for proving over-voting: Over-voting is a dominant feature of Nigeria’s electoral process, often employed to manipulate elections and produce skewed electoral outcomes. Under the Electoral Act 2022, over-voting occurs when the total votes cast exceed the number of accredited voters. The current jurisprudence on over-voting places a huge burden on the litigants to tender the Voter Register, BVAS machines and Polling Unit level results sheet Form EC8A to successfully prove over-voting. The failure to meet these conditions is fatal to any election petition, especially where overvoting is alleged. This stringent condition imposes an undue burden on litigants. The fate of litigants might hang in the balance where INEC, as the custodian of all election materials, displays reluctance to tender the voter register and BVAS machines. This evidential burden is compounded by the sui generis nature of election petitions, which prescribes a limited timeframe “like the rock of Gibraltar or Mount Zion which cannot be moved; … extended or expanded or elongated or in any way enlarged.”

2. Procedural and technological innovations introduced by INEC must be backed by statutory enactments: In Nigeria’s electoral jurisprudence, the apex court has declared that INEC is not legally required to electronically transmit election results in any election. The newly introduced IReV is not a collation system, and it’s not part of the collation system[1]. The IReV is for viewing purposes The Supreme Court jettisoned the electronic transmission of results and the INEC Election Results Viewing (IReV) Portal on the basis that the electronic transmission of results from the polling units to the IReV is not provided for anywhere in the Electoral Act 2022 and that it was only introduced by the Commission in its Regulations and Guidelines.

One of the most prominent debates in Nigeria’s electoral jurisprudence is the legality of innovations
introduced by INEC through Regulations, Guidelines and Manuals, issued pursuant to the powers vested on the
Commission by the Constitution and the Electoral Act. Since 2015. The Courts have maintained that innovations like Smart Card Reader, BVAS and IReV require statutory enactment to enjoy the force of law. This posture of the Supreme Court creates contradictions in the electoral system. When a principal law confers powers on an institution to issue guidelines for its operations, such guidelines should have a binding effect because they derive from the principal Act, especially where the institution exercises the power within its scope. It is illogical for the Court to maintain that electronic transmission into the IReV portal is not a legal requirement simply because it was introduced in the guidelines, rather than in the Electoral Act.

Another issue that undermines election integrity is the implicit protection accorded INEC officials in Section 134(2) of the Electoral Act 2022, which allows them to violate regulations and guidelines without repercussions. The Courts, in several cases such as Jegede v. INEC and Wike v. Peterside, have established that INEC Regulations and Guidelines have no binding effect. This judicial position permits INEC to violate its own Regulations and Guidelines, even when those regulations are not contrary to the Constitution and the provisions of the Electoral Act 2022.

The intention of the framers of the Constitution in S.160 and S.148 of the Electoral Act 2022 was to donate discretionary powers to INEC to determine the procedure for results transmission. These provisions ultimately protect INEC’s independence as a regulatory institution and provide the Commission with the flexibility required to facilitate operational innovations in the electoral process, given the dynamic nature of the electoral process. It’s an established rule that principal laws like the Constitution and Electoral Act provide a broad legislative framework. Therefore, outlining detailed procedures in the principal law would amount to over-legislation. The current case law negates these legal provisions and undermines the legislative intent to empower INEC.

3. INEC’s non-compliance with its regulations is not a ground for challenging an election. Another issue that undermines election integrity is the implicit protection accorded INEC officials in Section 134(2) of the Electoral Act 2022, which allows them to violate regulations and guidelines without repercussions. The Courts, in several cases such as Jegede v. INEC and Wike v. Peterside, have established that INEC Regulations and Guidelines have no binding effect. This judicial position permits INEC to violate its own Regulations and Guidelines, even when those regulations are not contrary to the Constitution and the provisions of the Electoral Act 2022.

4. Nomination of candidates is strictly an internal affair of a political party: The apex court, in several cases, upheld its decision that the nomination/selection of a candidate is strictly an internal affair of a political party and a Court does not have the jurisdiction to entertain complaints on candidate nomination, except the complaint is made by an aspirant in the same political party in line with the Electoral Act. In a context of flawed primaries, obscenely monetised candidate nomination processes, and illegal substitution of candidates, the position of the Court will encourage parties to perpetrate all forms of illegality during candidate nomination. The controversial cases of the Yobe North and Akwa-Ibom Senatorial district primaries are instructive.

5. The absence of a presiding officer’s signature, stamp and date on a ballot paper will not render a marked ballot paper invalid. The Supreme Court has established that as long as a Returning officer is satisfied that a ballot paper was from a book of ballot papers which was furnished to the presiding officer for use at his or her polling unit, the condition that the ballot paper must be signed is not compulsory. The Court’s decision is consistent with Section 63(2).

With the successful introduction of the BVAS, which stores the biometric information of voters, the Electoral Act 2022 should be amended to permit the use of other legally acceptable means of identification for voter verification, in addition to the already produced Permanent Voters’ Card (PVCs). These means of identification include a driver’s license, international passport, national identity card, electronically downloadable voters’ card from the INEC website and any other means of identification as may be determined by INEC.

Addressing Unresolved Electoral Reform Issues

First, attitudinal change among politicians is the most critical electoral reform Nigeria requires. A fundamental shift in the behaviour of politicians to toward electoral politics would radically deepen the integrity of elections. Politicians should demonstrate commitment to democratic values and respect the will of the people as an act of patriotism and dedication to nation-building.

Second, the legal status of INEC’s Regulations, Guidelines and Manual should be stated explicitly in the Electoral Act to strengthen its enforcement, safeguard INEC’s independence and facilitate the introduction of innovations to enhance the integrity of the electoral process.

Third, the Electoral Act should be amended to resolve all the ambiguities in the results collation and transmission process, including stating the role of technology in results management. The Act should make electronic transmission of results mandatory, including the upload of polling unit-level results and results sheets used at different levels of results collation.

Fourth, appeals on pre-election matters related to National Assembly and State Houses of Assembly elections should terminate at the Court of Appeal. 

Fifth, the requirement for voter identification should be expanded: With the successful introduction of the BVAS, which stores the biometric information of voters, the Electoral Act 2022 should be amended to permit the use of other legally acceptable means of identification for voter verification, in addition to the already produced Permanent Voters’ Card (PVCs). These means of identification include a driver’s license, international passport, national identity card, electronically downloadable voters’ card from the INEC website and any other means of identification as may be determined by INEC.

In conclusion, the 2023 elections reinforced five undisputed factors central to rebuilding public trust and enhancing the integrity of Nigerian elections. First, attitudinal change among politicians is a condition for rebuilding public confidence in the electoral process. Second, the electoral governance architecture, especially INEC, requires fundamental reforms. Third, the 2022 Electoral Act contains ambiguities and inadequacies that make the electoral process susceptible to capture and manipulation. Fourth, the right to vote requires additional legal and administrative protection, as voter disenfranchisement and suppression intensify in each electoral cycle. Lastly, accountability institutions must function effectively and impartially to abate electoral impunity.

Samson Itodo is an election, democracy, and public policy enthusiast. Itodo serves as the executive director of Yiaga Africa and principal partner of the Election Law Centre. He is also a member of the Kofi Annan Foundation board and the Board of Advisers of International Institute for Democracy and Electoral Assistance (IDEA). Comments and feedback to sitodo@yiaga.org

[1] Atiku v INEC SC/CV/935/2023

This is an excerpt from a paper presented at the Nigerian Bar Association (NBA) 2024 Annual General Conference, Lagos, 27^th August.