From precedent to 2027: How can our electoral process be sustained?

By Awa Kalu, SAN

At independence in 1960, the Union Jack which was lowered on October 1 of that year gave way to the green white green flag which we still fly till date.

The green white green is a combination of colours which was designed to signify abundance in agriculture as well as abundance in unity amidst our diversity.

However, despite prevailing insecurity, despite inadequacies in food security andS despite inadequacies in other facets of national endeavor, my instruction in preparing this piece, is to identify the fractures and fault lines in our electoral process and suggest ways and means of preventing the fault lines from resulting in an earthquake which can ruin our electoral process. Just in case you did not know, a notable judge of blessed memory,  Justice Niki Tobi former Justice of the supreme court in Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 427 – 428 expressed anxiety about our democratic process when in memorable terms he noted that “…The way politics in this country is played frightens me every dawning day. It is a fight to finish affair. Nobody accepts defeat at the polls. The Judges must be the final bus stop…”

Is it important to note, that from independence Nigeria has witnessed a combination of a fledgling democratic process as well as military rule through coups d’etat. Accordingly this column recalls that between 1960 and the early part of 1966, this country was governed through democratic processes. The reader should permit me to borrow extensively from what I said when Nigeria turned 60 in the year 2020. Thereafter which I will begin to examine what our condition is at the moment.

I have listened to radio and television discussions aimed at appraising Nigeria at 65, while examining Nigeria at 60 I noted that “Touted as the most populous black nation on earth, recognized as a country endowed with vast and extensive human and natural resources, blessed with the potential to be what it can be, we are often in search of the fresh ideas that will give fillip to our destiny. Thus, at independence, we were given a constitution which tied us somehow to the Monarchy of Great Britain. By 1963 when we parted ways with that constitution, we gave unto ourselves a Republican Constitution. Then, anchored on allegations of corruption and misrule, a coup d’état overthrew that constitution and for several years we laboured under military leadership and fought a bitter civil war which deepened the schisms in the polity. In 1979, the military retreated to the Barracks in the belief that politicians had learnt their lessons. On the last day of 1983, there was yet another coup d’état, followed by another in 1985 and 1993. Historians are familiar with the flip-flop in the formulation of policies that followed including the failure of a well-designed transition to civil-rule programme under the Babangida administration. Recognizing that it is the inalienable right of the people to choose who should regulate their affairs, the military again retreated to their Barracks in 1999 and have not given any overt indication of an intention to return despite the predilections of our politicians, some of which may sound as an invitation of some sort. The fact that we have had nineteen years (now 26 years) of unbroken civil rule is eloquent testimony to our steadfastness”.

Continuing, I said…”let us examine the Historical Development of Electoral Laws in Nigeria since independence; Between 1999 and 2006, Nigeria’s return to democracy produced Electoral Acts that promised more than they worked. The 2002 Act addressed voter registration and campaigns, yet the 2003 polls were tainted by violence and malpractice. The 2006 Act expanded INEC’s powers and set campaign finance limits, but the 2007 elections, conducted under that act, were so flawed that even President Umaru Musa Yar’Adua, its main beneficiary, openly admitted the defects. In a rare moment of frankness, President Yar’Adua convened the Justice Uwais-led Electoral Reform Committee in 2007 to overhaul the system.

The 2010 Act brought some new provisions; financial independence for INEC under Section 84, biometric voter registration, and shorter timelines for tribunals. The 2011 elections were hailed as relatively credible, proof that better laws could make a difference or so we thought. Yet the hopefullness was short-lived. By 2015, controversies resurfaced. The Card Reader clashed with Section 52’s bar on electronic voting, campaign finance rules under Sections 91–93 were routinely flouted, and party primaries under Section 87 remained opaque, it was more cult ritual than democratic process”.

Let it be recalled that the Electoral Act 2022, which repealed the 2010 electoral Act, introduced sweeping reforms. Over eighty new provisions aimed at strengthening INEC’s independence, tightening timelines, regulating primaries and campaigns, and embedding technology such as Bimodal Voter Accreditation System (BVAS) and INEC Result Viewing Portal (IReV). Other Notable innovations in the current include Section 3(3) on financial autonomy of Independent National Electoral Commission (INEC), Section 29(1) on early submission of candidate lists, Section 51(2) redefining over-voting, and Section 65 empowering INEC to review results declared under duress are instructive. These provisions, alongside extended campaign windows and electronic registers of voters and results, were intended to mark a decisive break from past failures, was that dream realised in 2023 when the last general elections were held?

The 2023 elections revealed deep cracks in the 2022 Electoral Act. Technology became a battleground in the courts, with Section 60, The Court of Appeal, in interpreting the relevant legal provisions held that the Electoral Act had used the words “deliver” in section 62(1), “transfer” in section 60(5) and “transmitted directly” in sections 50(2), 64(4), (5) and (6), of the Electoral Act, 2022, Noting how results of elections should be handled under these provisions. To the Court, the Electoral Act, 2022 had used the words (“deliver, “transfer” and “transmitted directly”) interchangeably to describe how the results of the election shall be moved from one stage to another until the results are collated finally and announced.

The Court in all these held that, the Electoral Act, 2022 did not specifically provide that the results of the election shall be electronically transmitted allowing INEC to sidestep full electronic transmission of results, an issue central to Atiku v. INEC (No. 2) [2023] 19 NWLR (Pt. 1917), where the Tribunal upheld INEC’s discretion and weakened trust in BVAS and IReV. Section 51(2) on over-voting, meant to clarify matters, only bred confusion; BVAS data alone was held insufficient proof, undermining its credibility. Section 137’s anti-dumping rule on documents, though well-intentioned, turned into a technical trap as swathes of evidence were struck out for not being tied to witnesses.

Beyond this, pre-election disputes over primaries spilled into post-election petitions, further clogging the courts and fuelling judicialization of politics. Meanwhile, Sections 91–93 on campaign finance proved toothless, with spending limits flouted and INEC failing to enforce transparency. In sum, the lofty promises of the 2022 Act were undercut by loopholes, weak enforcement, and judicial interpretation.

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