THE Nigerian Bar Association (NBA) President, Mr. Joseph Daudu (SAN), has  identified defects in the Electoral Law 2010, which guides the Independent National Electoral Commission’s (INEC’s) preparations for the forthcoming elections. Given the nation’s history of inability to conduct hitch-free elections, Daudu expressed fears that the defect could hinder prompt resolution of electoral disputes governance. Some law experts have suggested that the law should be tested first to allow for proper appreciation of its inherent defect. They said though perfection is impossible in every human endeavour, a workable law is dependent on the operators.

THE conduct of elections in post-Independent Nigeria has, undoubtedly, been rancorous.

From the elections held after Independence, through those organised by the military regimes, to the last one in 2007, discords and disputations were the order of the day. Every election has been greeted by allegations of manipulations.

There have been consistent attempts to remodel the electoral rules, with every succeeding administration claiming to have been actuated by altruistic motives. Since the re-establishment of democratic governance in 1999, the nation’s electoral law has been modified thrice, the last is the 2010 Electoral Act, assented to on August 20, by President Goodluck Jonathan.

In justifying the amendment, the president had said the new Electoral Law was informed by the need to rectify identified defects in the preceding instrument. He assured that the new law would ensure a rancour-free election next year.

Also, the Chairman, Senate Committee on Information and Media, Senator Ayogu Eze, said the new Act would strengthen the electoral process.

"The repeal and enactment of Electoral Act was laudable. We removed all legal and legislative impediments on the way of free and fair election.

"What we did was to give the operators all the enablement that they need to conduct free and fair election. We are responding to aspirations and yearnings of Nigerians so that they can be involved and participate actively," he said.

The new law, which is a product of alterations by the Legislature on 158 sections of the repealed law contains what some have described as profound provisions, aimed at addressing issues such as arbitrary substitution of party candidates for elections after primaries, endless litigations arising from disputes, internal democracy in political parties as well as the order of the polls.

Some of the provisions include Section 26 which has changed the schedule of elections.

It reads: "Election into the offices of the President and the Vice President, Governor and the Deputy Governor of a state, and members of the Senate, House of Representatives and House of Assembly of each state of the federation be held in the following order: (a) Senate and House of Representatives, Presidential elections; (b) State Houses of Assembly and governorship elections."

Section 35 rejects the substitution of candidates by political parties. It reads: "No political party shall be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act except in the cause of death or withdrawal by the candidate."

Section 32 reads: "Every political party shall, not later than 60 days before the date appointed for a general election under the provision of this Act, submit to the commission (Independent National Electoral Commission) in the prescribed forms, the list of the candidates that the party intend proposes to sponsor at the election."

Under Section 78 of the amended law, parties that fail to win a seat in either the National Assembly or state legislative bodies can be unregistered.

Section 91 places a cap on how much money can be spent on an individual campaign. All presidential aspirants are limited to N1 billion while gubernatorial candidates can only spend N200 million. Those seeking a position in the National Assembly must spend no more than N40 million while state Assembly aspirants are not allowed to exceed N20 million.

Section 92(3) requires all political parties to submit their expenses to the commission six months after elections. These expense reports must be signed by the political party’s auditors and chairman. All signatories must include notification, swearing to the validity of the report. Failure to observe this law will result in conviction and/or a N1 million fine.

Despite these and many other seemingly impressive provisions, the NBA has identified some aspects of the new law capable of defeating the lawmakers’ purported true intentions.

Its President, Mr. Joseph Daudu (SAN) faulted Section 133 (1) of the Act which provides that: "No election and return of an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an ‘election petition’ presented to the competent tribunal or court in accordance with the provision of the constitution or of this Act, and in which a person elected or returned is joined as a party."

He said the actual problem is hidden in Section 132 (2) which defines tribunal or court to mean, in the case of presidential or governorship election, the Court of Appeal and in the case of any other elections under the Act, the election tribunal established under the Constitution or Act.

To him, the implication is that it is the Court of Appeal that now has original jurisdiction in determining governorship election disputes, implying that the un-assented amended constitution contains amendments to Section 246(1b) (1), (11) and (111), Section 285 (2) and the 6th schedule of the 1999 Constitution to the effect that the original jurisdiction in governorship matters shall be henceforth determined by the Court of Appeal.

"If this is correct, then permit me to explore and expose the inherent risk and danger of such a state of affairs. Considering that there are 70 Justices at the Court of Appeal presently, only 14 panels of four justices could be raised to hear governorship election petition for 36 states.

"The justices of the Court of Appeal will be grossly overworked. They have their existing cases to contend with as well as the new constitutional functions thrust on them which include determination of appeals from legislative houses, federal and states," he said.

The implication, he added, is that the Supreme Court now has final jurisdiction in governorship matters when the apex court lacks sufficient manpower "to effectively deal with the situation".

Daudu queried the National Assembly’s rejection of the NBA Legislative Advocacy Group’s recommendation for the setting up of Constitutional Courts at original and appellate levels.

Although experts who examined the new law shared Daudu’s reservation, they were of the view that no human effort is perfect. They called for caution and sincerity of purpose on the part of those saddled with the responsibility of implementing the law.

To them, no law is perfect, but there are always room for improvement. Dr. George Oluseyi

"Although Nigerian politicians cannot be taken by their word, one can see a little attempt on the part of members of the National Assembly to put in place an electoral law that seeks to change the way things were hitherto done.

"I see some real attempt to depart from the scenario that greeted the 2007 elections. That was very embarrassing, to the extent that the man beneficiary of the election, the late President Umaru Yar’Adua, had to admit the monumental fraud the produced him. It was so glaring that those problems were as a result of the flawed electoral law.

"All the changes made, particularly the one that seeks to limit the period of election disputation, is commendable. By the provision, it implies that between January, when the elections are held and May, when winners eventually assume offices, there will be enough time to resolve whatever disputes that may have arisen.

"I share the NBA President’s apprehension. This is because we currently have a situation where disputes arising from the 2007 elections are yet to be fully resolved, yet we are about to organise another set of elections.

"This is even when the number of judges at the lower court is large. But when the responsibility of adjudicating both governorship and presidential elections disputes are shifted to the appellate court, we may have do take additional step of improving on the number of the justices at this level.

"That is why I said earlier that Nigerian politicians cannot be taken by their words. They did not explain the reason that informed this provision. But I think the best thing is for us to first apply it. Let us practicalise it. If there are problems with the operations of some of these innovations, we can always amend them," he said.Dr. Paul Nwachukwu

He said although the fear raised by the NBA president is valid, the law can still be applied for the benefit of the society. He said, despite the amendment, if the operators are not sincere, the problems would persist. He canvassed popular participation of the citizens in the electoral process as a way of reducing fraud.

"No matter how good the laws are, you need an independent judiciary to interpret electoral law; an honest, non-partisan administration to run the elections; a developed system of political parties, well enough organized to put their policies, traditions and teams of candidates before the electors as alternatives between which to choose, a general acceptance throughout the political community of certain rules of the game, which limit the struggle for power.

"This is because of some unspoken sentiments that if the rules are not observed more or less faithfully, the game itself will disappear amid the wreckage of the whole system. The Nigerian electorate must rise to the challenge of taking their destiny in their hands.

"They must resist being teleguided by others in their electoral decisions. While recognizing their hindrances such as poverty, influence of their parochial affiliations, ignorance, among others, they should be enabled by the progressive groups in the country to understand that only the kind of leaders they allow will pilot their affairs."

"The ugly incidents of fraud and gangsterism that often characterise electoral politics in the country demand the collective action of well-meaning Nigerians and their supporters to sanitise the political environment. It is not mainly about the law. It is about the operators and the political will to apply existing laws.

"It is true that many Nigerian politicians still resort to lawlessness in politics as a means of achieving their political goals. The solution is for law-abiding and progressive politicians to sacrifice their individual ambitions and benefits, and work together in order to ensure that the electoral laws are strictly observed and that the votes of the electorate freely and appropriately cast determine success of the election."

"The judiciary and the law-enforcement agencies must be properly equipped, prepared and determined to be alive to their responsibilities," he said.