Direct Primaries as albatross of Electoral Amendment Bill 2021


With the refusal of President Muhammadu Buhari to assent to the 2010 Electoral Act (Amendment) Bill 2021, TAIYE ODEWALE examines the issue at stake 

Meaning of Electoral Act 
Electoral Act is the law put in place by an Act of Parliament to guide the conduct of elections by the Independent National Electoral Commission (INEC).
While there were no such laws in place for the conduct of the 1998 local government elections across the country and 1999 General elections which gave birth to the current 4th Republic, such laws were put in place for subsequent general elections.
For example, the 2002 Electoral Act brought into existence by the 4th National Assembly was deployed by INEC for the conduct of 2003 and 2007 general elections while the 2010 Electoral Act brought into existence by the Sixth National Assembly served as guidelines for INEC for the conduct of 2011, 2015 and 2019 general elections.
Periodically, within a spate of four years interval, each session of the National Assembly is expected to look into an existing electoral act and carry out amendment on any provisions observed to be deficient in the credibility and sanctity of electoral processes and conduct.
A good example of this was the clause in the 2002 Electoral Act which was silent on compulsory announcement of election results by presiding officers at each of the polling units but made mandatory by the 2010 Electoral Act which not only made announcement of such results at polling units by Presiding Officers compulsory but also pasting of the results at the polling units signed  by all the party agents before heading to the ward collation centres.
Though by that provisions, the 2010 electoral Act, to considerable extent, added value to the credibility of electoral process in the country but manipulations that are prevented at each of the 119,983 polling units across the country, are perpetrated by fraudulent key players in the process at the 8, 818 Ward Collation Centres in the country by adding or subtractrting scores of targeted political parties.
Apparently worried by the loopholes seriously being exploited by fraudulent politicians and staffers of INEC, the 8th National Assembly came up with an electoral bill which allows for usage of electronic cum technogical  devices like card reader and electronic transmission of election results from the ward level to the server of INEC in Abuja but refusal of assent to the bill by President Muhammadu Buhari, made it a wasted effort.

Intervention by the 9th Assembly 
Worried by the loopholes of not legalising the usage of card reader by INEC and other required electronic/technological devices, for the current 9th National Assembly mandated its committees on INEC to come up with required provisions to that effect in the 2021 electoral bill.
As mandated, the committees at both the Senate and the House of Representatives in July this year, submitted a joint report which among others, recommended in clause 52(3), electronic transmission of election results by INEC where and when practicable and in clause 87, gave political parties, option of direct or indirect primaries for election of their candidates for any of the available political posts in a general elections. 

Change of resolutions on Primary Elections 
For reasons best known to both chambers of the National Assembly, clause 87 of the proposed bill which deals with mode of conduct for primary elections by all political parties, was amended in October from two earlier options of Direct or Indirect given, to mandatory Direct Primaries by all political parties.
The amendment carried out on the clause by both Chambers reads: “A political party seeking to nominate candidates for elections under this Bill shall hold direct primaries for aspirants to all elective positions, which shall be monitored by the commission (INEC)”.
The new clause was against  the earlier one taken in July as contained in section 87(2) which reads: “The procedure for the nomination of candidates by the political parties shall be by direct or indirect primaries.

Transmission to Presidency 
In line with legislative procedures, after passage of the harmonized versions of the bill by both chambers containing the amended clause 87 and others, it was transmitted to President Muhammadu Buhari for assent on 19th of November which as provided for by the Constitution, must be assented to, within 30 days.
The 30 days duration ended two days ago, Sunday, December 19, 2021 without the President assenting to it due to the contentious clause 87.

AGF’s advice against assent 
Pointer to this effect was contained in a letter written by the Attorney – General of the Federation (AGF), Abubakar Malami to President Muhammadu Buhari on the implication of the mandatory Direct Primaries stipulated by clause 87(2) of the bill.
A source at the Ministry of Justice disclosed that Malami informed the President that making direct primaries mandatory for all political parties could cause confusion.
The source explained that the AGF was worried that forcing all parties to adopt the direct mode of primary would mean that all existing parties would have to change their constitutions.
“Section 87(2) of the bill stipulating direct primaries for all political parties as the only way of electing candidates for general elections is prone to confusion and litigation because from a strictly legal point of view, that would mean that only new political parties will be bound by the law.
“Existing political parties will not, because they have registered their parties, they have filed their constitutions long time ago on the basis of what is contained there. And most of it is a mixture, if you check the parties, direct and indirect primaries are stated.
“So, is the proposed law aiming at changing  their constitutions for them? 
“This is the legal opinion on the bill and just one. There are several other legal positions which favours and disfavours the bill but mandatory Direct Primaries, seems to be most contentious and proned to confusion”, the AGF was quoted to have said in the memo.
Going by realities on ground as far as the bill is concerned, it has been refused assent by the President, meaning that a communication to that effect is expected to be read on the floors of both chambers of the National Assembly today.
If reason for refusal of assent on the bill is solely on the contentious clause 87(2) of the bill, the Senate and the House of Representatives will have to widen the space of primaries for the political parties as provided for, in their various Constitutions and resend the bill to the President for assent in January next year or alternatively, if they can muster the required 2/3 majority at both chambers, override the President.