June 14, 2024

2022 Electoral Act is Incomplete, Insensitivity to Diaspora Voting

Nkereuwem Anana

Citizens are in diaspora when they live outside their country. Currently the laws in Nigeria do not provide for Nigerian citizens living abroad to participate in an election with regards to voting from where they are. This singular act has thrown Nigeria out and disqualifies her from the league of modern democracies.

So many activities could culminate into Nigerians living in diaspora, it could be as a result of insecurity, pilgrimage, studies overseas, political appointments, business opportunities, among others.

There are so many implications and interpretations for disallowing diaspora voting, it could mean most fundamentally that the nation has denied their citizens thereby making them non-Nigerians, it could mean that their right to vote and be voted for has been denied merely because they are abroad at the time, it could mean that the Nation is insensitive to the plight of their citizens abroad.

For the citizens it means that the Nigerian State has rejected them, they are not valued, they should not contribute to the development of their country because they are not in the country.

For the 2022 Electoral Act as recent as it is not to incorporate diaspora voting into it means that the millions of Nigerians living abroad cannot determine who governs them when they are back to the country and meaning that whoever emerges as the president was imposed on such persons. Being disenfranchised is different from voting for a candidate who could not emerge the winner of the election. Nigeria should not only be heard to be a democratic entity but to be seen as practicing democracy.

Independent National Electoral Commission (INEC), which is the body responsible for conducting an election in the Nigeria should by virtue of their functions empowered to do any other thing that will promote free participation of election process by the citizens to elect their leader. Nigerian citizens are not only those residing in Nigeria. At least in a presidential election, citizens should vote from anywhere around the world.

The Electoral Act did not specifically prohibit diaspora voting and so since this is a general election where Nigerians are to vote, and Nigerians are not only those living in Nigeria, then whoever is a Nigerian no matter his place of residence at the time should vote. Before the amendment of the 2022 Electoral Act, INEC should allow diasporas to vote in the 2022 general election to elect their president.

Section 51 (2) of the Act states: 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.

Its unfortunate that the Act itself has failed to interpret the meaning of accredited voters. Accredited Voters means the number of people who had registered earlier and have now made themselves available to vote at a polling unit on the election day. So once the number of vote cast is more than the number of persons who were accredited or cleared to vote then the election will be cancel at that unit.

That Section has amended the section of the old Electoral Act, which was the fulcrum of rigging of elections in Nigeria. Under the old 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. So you have a situation where for example 1000 people registered in a polling unit and only 100 turn up to vote, the remaining 900 is bonus for the politicians to fill in the gaps for whoever they want.

That was the system referred to as structure in politics, that system is now history in our polity. There is no where the number of vote cast will be more than the number of accredited voters and the presiding officer or the electoral official will claim ignorant of it, so there should be a very sensitive punishment to such an erring electoral officer.

How can this even be possible with the use of the BVAS. How can the Commission cancel the result of an election because the vote is more than the accredited voters meaning that if the entire accredited voters in a particular polling unit was 100, one political party scores 90 votes with genuine accredited voters and another political party without duly accredited voters add 12 votes to make it 102, the entire votes is cancel to the detriment of the political party that scored 90, the best thing to do is for INEC to spot out the votes that are in error and cancel them instead of cancelling the entire unit result. The Section should be amended. The erring INEC officer should be dismissed.

Section 13(1) of the electoral act states, a person who before the election is resident in a constituency other than the one in which he or she was registered may apply to the Resident Electoral Commissioner of the State where he or she is currently resident for his or her name to be entered on the transferred voters list for the constituency.

The above section is a misnomer. In a Presidential election, all citizens of Nigeria or anyone who is qualified to vote in a general election in Nigeria should have the right to vote anywhere he resides within Nigeria. Where the individual was registered for the purpose of acquiring voters card should not be material. Like the ATM Card, you can withdraw your money from anywhere within Nigeria. The issuing branch of the ATM card is not important.

The said Section of the Electoral Act has disenfranchise a lot of Nigerians even on daily basis because people as we speak are changing locations. A lot of Nigerians who have migrated away from the constituency where they undergo their registration could not succeed in making their names to be entered on the transferred voters list of a new constituency as at the deadline for that effect. So many factors are responsible for an individual to relocate, it could be studies, visitation, job search, transfer, seminar, among others.

People who are changing their location now are being disenfranchised as a result of the said Section. This Section of the Electoral Act needs an amendment. If the same Act authorizes electronic transmission of vote, then why is it that by the said Section once you change location, you are not entitled to vote?

There is no permanent voters card

Section 16(4) of the Electoral Act states: the Commission may, whenever it considers it necessary, replace all or any voters cards for the time being held by the voters.

Voters Card by all mathematical calculation need be permanent if the country is to cut the cost of producing new voters card at every time the need arises. The permanency of the card will mean that few individuals would demand for the new ones when the need arises.

The Act contradicts itself when its mentioned permanent voters card in Section18 (2) while Section 16(4) states that the Independent Electoral Commission can replace the cards when it considers necessary. Section 16(4) needs to be amended to a permanent voters card.

Section 18 (1) of the Electoral Act is wrongly interpreted by INEC and in consequence denies Nigerians the right to vote. It is the refusal of INEC to perform according to said Section that plunges Nigerians to hardship and all sort of suffering.

This is the Section that carries the hardship faced by eligible voters in Nigeria. The said Section states: Whenever a voters card is lost, destroyed, defaced, torn or otherwise damaged, the owner of such card shall, not less than 90 days before polling day, apply in person to the electoral officer or any other officer duly authorize for that purpose by the Resident Electoral Commissioner, stating the circumstances of the loss, destruction defacement or damage.

18 (2) where the electoral officer or any other officer is satisfied as to the circumstances of loss, destruction, defacement or damage of the voters card, he or she shall issue to the voter a replacement permanent voters card.

Not less than 90 days before polling day means more than 90 days before polling day. There are so many situations that qualifies one to require a new voters card which amongst others is the attainment of the age of majority, 18 years and also when ones voters card is lost, destroyed, damaged or defaced. Voters card should be applied for and collected by an individual faced by any of the above challenges.

The voter’s card should not be given only when it is the time for an election. That is the reason for the crowd in INEC offices during election period trying to apply for the voter’s card. If only people should apply and get this card once they are supposed to apply for it, you will find out that when the time for election draws near, the INEC office will not be busy.

Applying for voters card only when the voting time is close is the reason why a lot of people are disenfranchised. Because INEC staff have not always been able to capture everybody before the deadline for such exercise. Not less than 20 million Nigerians who were willing to register could not register inconsequence of the registration deadline by INEC. So the question is WHAT DO INEC OFFICIALS DO AFTER ELECTION PERIOD? They should be made to use the time to register people who apply for the voter’s card so that during the time for it use, they will have less work to do.

Section 22 of the Act states: Any person who
a.Is in unlawful possession of any voters card whether issued in the name of any voter or not, or
b.Sells or attempt to sell or offers to sell any voters card whether issued in the name of any voter or not, or
c.Buys or offers to buy any voters card whether on his own behalf or on behalf of any other person, commits an offence and is liable on conviction to a fine not more than N500, 000 or imprisonment not more than two years or both

The punishment contemplated by the said section over such offence is too meager to dissuade people from committing the offence. Electoral offences should be in capital terms to dissuade would be offenders from embarking on electoral offences if we are to get it right. And also Section 73(3) also gives meager punishment to a presiding officer who intentionally announces or signs any election result in violation of sub section 2 of the same Section.

Section 73(3) reads: A presiding officer who intentionally announces or signs any electoral result in violation of subsection (2) commits an offence and is liable on conviction to a fine of N10, 000, 000 or imprisonment for a term of at least one year or both.

Almost all the punishment sections of the Act propound meager punishment for the offence. Those Sections should be amended.
Section 75 of the Electoral Act states: Any political Association that complies with the provision of the Constitution and this Act for the purpose of registration shall be registered as a political party.

The interpretation Section of the Act has not interpreted which constitution it is referring and thereby leaving it to chance for Nigerians to fill in the gap. Section 75 of the Electoral Act should be amended for the purpose of knowing which constitution the Act is contemplating. The interpretative Section of the Electoral Act has interpreted just few words leaving the rest of it to chance.

Same in Section 85 (a), which states: Any political party that holds or possess any fund outside Nigeria in contravention of Section 225 (3) (a) of the Constitution commits an offence and shall on conviction forfeits the fund or assets purchased with such funds to the Commission and in addition may be liable to find of at least N5, 000, 000.

The Act has left Nigerians in limbo as to which of the constitution is the Act contemplating.

Section 84(8) of the Act states: A political party that adopts a system of indirect primaries for the choice of its candidates shall clearly outline in its constitution and rule the procedure for the democratic election of delegates to vote at the convention, congress or meeting.

Delegates or indirect primary election should be abolished in our laws. The Electoral Act needs an urgent amendment to delete this section from it. The delegates themselves are chosen through a rigging system of the highest bidder. In a political party after the delegates are chosen, the candidates who bribes the delegates with the highest amount is the one they will vote for, such voting is normally and always not based on competence, capacity and integrity of the candidate.

A better candidate who has no money to commit the offence of offering bribe to delegates or who refuses to bribe delegates will not be chosen by the delegates and so at the general election, the electorate are left with no option than whoever the delegates present.

It is very undemocratic. In Nigeria, delegate is a fraud and so if the foundation is fraudulent don’t expect anything good until the needed amended of the said Section. No country of the world can get it right with the type of delegates’ election practice in Nigeria.

Section 101 of the Act States: A person shall be qualified for an election under this part of this Act if he or she is educated up to at least school certificate level or its equivalent.

A 21st century Electoral Act of any country cannot contemplate school certificates as the least condition for eligibility to contest. Primary six certificates? Then there is no encouragement for those who aspire above that level.

If I could contest for the office of a president with six primary certificates, then primary school certificate holders should be allowed to lecture in higher institutions. This could be very laughable and if Nigeria could grow beyond tribal sentiment of any kind then the future of the country is at hand.

Anana was a former prosecutor to the Economic and Financial Crimes Commission (EFCC)

Originally published by The Guardian Newspaper


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