The Electoral Act 2022: Key Changes And Impact On The 2023 Elections... by Miracle Eme

 

INTRODUCTION

On 25^th February 2022, President Muhammadu Buhari signed the 2022 Electoral Act Amendment Bill into law, after months of withholding assent.¹ The 2022 Electoral Act (“the new Act”) repeals the Electoral Act No. 6, 2010 (“the former Act”) and is intended to bring innovations to the regulation of Federal, State and Area Council elections in Nigeria.

As Nigeria approaches its 2023 general elections, the enactment of this law has come at the right time. This article considers some major changes introduced by the new Electoral Act and the possible implications of these changes on the upcoming elections.

MAJOR CHANGES INTRODUCED BY THE ELECTORAL ACT 2022

1. Financial independence to Independent National Electoral Commission (INEC)

The new Act establishes the Independent National Electoral Commission Fund, wherein payments from the Federal Government, investments made from the fund and other aids and grants shall be paid to enable the Independent National Electoral Commission (“the Commission”) to perform its functions.² Furthermore, the Act stipulates that election funds due to the Commission for any general elections are to be released not later than one year before the next general election.³

This provision grants financial autonomy to the Commission, as it may now receive funds for the conduct of elections directly as opposed to getting funds subsequent to vetting by the Ministry of Finance as provided under the former Act.⁴

2. Extension of Timeframe for Publication of Election Notice

The new Act provides that the Commission shall, not later than 360 days before the day appointed for holding of an election under this Act, publish a notice in each State of the Federation and the Federal Capital Territory stating the date of the election and appointing the place at which nomination papers are to be delivered.⁵ This notice is to be published in each constituency in respect of which an election is to be held.⁶

This is in contrast to the provisions of the erstwhile Electoral Act which provided that the Commission should publish this notice not later than 90 days before the date of election.⁷ The effect of this extension of time is to give the Commission more time to prepare for the election and also give the political parties no excuse as regards the candidacy and the partisan and propaganda politics that comes with choosing a candidate and preparing for a campaign.

However, for by-elections, the new Act retains the same provision as the old Act, as the timeframe for publishing a notice stating the date of by-elections is 14 days.⁸

3. Encouragement Of Early Party Primaries

Under the new Act, political parties are mandated to submit the list of their sponsored candidates who have emerged from valid primaries conducted by the party, not later than 180 days before the date appointed for a general election.⁹ This is in contrast to the former Act which prescribed that this submission should be done not less than 60 days before the date of general elections.¹⁰ The change in the timeframe to submit the names of party candidates from 60 days to 180 days makes it compulsory for political parties to conduct their primaries early enough to meet up with submission of their list of candidates at least 180 days before the general elections.

4. Extension Of Timeframe for Campaigns by Political Parties

The new Act provides that the period of campaigning in public by every political party shall commence 150 days before polling day and end 24 hours prior to that day.¹¹ This is different from the provisions of the former Act which prescribe that campaigns shall commence 90 days prior to polling day and end 24 hours prior to that day.¹² The impact of this provision is the extended time given to political parties to disseminate their campaign messages to the populace and the corresponding extended time for the electorate to decide what party and candidate would receive their votes.

5. Provision for Central Electronic Voter Database

The new Act provides that the Commission shall keep the Register of Voters at its National Headquarters and other locations, provided that the Register shall be kept in electronic format in its central database, in addition to being kept in manual or hardcopy format.¹³ Under the former Act, this Register was kept in manual or hardcopy format only.¹⁴

This provision is laudable as it will promote transparency and effectiveness in the Commission's record-keeping and in tracking the number of registered voters who will be voting in the upcoming elections, thereby curbing illegal voting by non-registered voters. 

6. Revision of Definition of Overvoting

Under the new Act, where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit.¹⁵ “Number of accredited voters” refers to the number of intending voters accredited to vote in an election on the election day.¹⁶ Under the former Act, it is when the number of votes cast at an election in any polling unit exceeds the number of registered voters in that polling unit, that the Presiding officer shall cancel the result of the election in that polling unit.¹⁷

Based on the provisions of the new Act, ‘overvoting' would mean where votes cast at a polling unit exceeds the number of accredited voters and not the number of registered voters as provided in the former Act.

7. The Independent National Electoral Commission (INEC)'s Power of Review

Under the new Act, the INEC has the power to review the final decision of the returning officer in respect of questions of unmarked ballot paper, rejected ballot paper, declaration of scores of candidates and the return of a candidate, within 7 days of the decision, and return where the declaration was not made voluntarily or was made contrary to the provisions of the law or the guidelines for the election.¹⁸ Under the provisions of the former Act, the decision of the returning officer was only subject to review by an election tribunal or court.¹⁹ However, it appears that under the new Act, the election tribunal or court can still review the returning officer's decision,²⁰ but the Act is unclear as to whether this is to be done after INEC's review or can replace the INEC review process totally. It is the writer's view that this should be after the INEC's review.

8. Exclusion of Political Appointees from Acting as Voting Delegates or Aspirants Section 84 (12) of the new Act stipulates that no political appointee at any level shall be a voting delegate or be voted for at the Convention or Congress of any political party for the purpose of the nomination of candidates for any election. This means that political appointees must relinquish their positions before they can be eligible to participate in the electoral process either as a candidate or as a delegate.

This writer considers this provision positive because it will bar political appointees from using their influence in contesting for elections and prevent them from remaining in the helms of power for longer than they are supposed to. This in turn leaves room for fresh candidates with no prior political appointments to take up appointments, instead of recycling the same old candidates. This provision has, however, proved very controversial, and has been the subject of criticism and denouncement, with even a Federal High Court declaring it unconstitutional and directing the Attorney General of the Federation to delete same from the new Act.²¹ The last has not been heard about the controversies on the constitutionality or otherwise of section 84(12), as the National Assembly has vowed to appeal the decision of the Federal High Court.²²

9. Death of Electoral Candidates

The death of a candidate in elections had generated lots of bickering among political parties and politicians in the past under the former Act, leading to cases in our courts. To cure some of the mischief in the former Act, the new Act provides that where before the commencement of polls a candidate dies, the election shall be postponed and shall commence within 14 days of the candidate's death.²³ Where a candidate dies after polls, but before announcement of final winner/ announcement of final result; the implication is that the election will be suspended for not more than 21 days.²⁴ Where the election is for a legislative house position, the election shall start afresh and the political party whose candidate died may, if it intends to continue to participate in the election, conduct a fresh primary within 14 days of the death of its candidate and submit the name of a new candidate to the Commission to replace the dead candidate.²⁵ For gubernatorial, presidential and FCT area council elections, the running mate shall continue with the election (as the new candidate) and nominate a new running mate.²⁶

10. Technological changes in electoral process

Under the new Act, the use of electronic devices such as smart card readers, electronic voting machines and other technological devices, is allowed in the accreditation process for voters and in the general conduct of elections.²⁷ Furthermore, the new Act provides for electronic transmission of election results in accordance with the procedure determined by the Commission.²⁸

CONCLUSION

The Electoral Act 2022 is a laudable effort to keep the Nigerian electoral process up to standard with that of other democratic countries all over the world, more so as the country approaches the 2023 general elections. It is only hoped that the provisions of this Act are judiciously implemented to enable Nigerians enjoy the exercise of their political franchise before and after the 2023 general elections.

Footnotes

1 Segun Adewole, ‘Buhari signs Electoral Act Amendment Bill into law', The Punch (Lagos: 25^th February 2022), available at https://punchng.com/breaking-buhari-signs-electoral-act-amendment-bill-into-law/, accessed 14^th March 2022.

2 Section 3(1), Electoral Act, 2022.

3 Section 3(3), Electoral Act, 2022.

4 See, Section 5, Electoral Act, 2010.

5 Section 28(1), Electoral Act, 2022.

6 Section 28(2), Electoral Act, 2022.

7 Section 30(1), Electoral Act, 2010.

8 Section 28(3), Electoral Act, 2022 and Section 30(3), Electoral Act, 2010.

9 Section 29(1), Electoral Act, 2022.

10 Section 31(1), Electoral Act, 2010.

11 Section 94(1), Electoral Act, 2022.

12 Section 99(1), Electoral Act, 2010.

13 Section 9(2), Electoral Act,2022.

14 Section 9(2), Electoral Act, 2010.

15 Section 51(2), Electoral Act, 2022.

16 Section 153, Electoral Act, 2022.

17 Section 53(2), Electoral Act, 2010.

18 Section 65(1), Electoral Act, 2022.

19 Section 68(1), Electoral Act, 2022.

20 Section 65(2), Electoral Act, 2022.

21 ‘Court nullifies Section 84(12) of amended Electoral Act', The Vanguard (Lagos:18^th March 2022),