Section 52(3) Of The Electoral Act Amendment Bill: NASS’ Decision Is Unconstitutional -By Muhammed–Bello Buhari

The National Assembly — the Senate and the House of Representatives — had on Thursday and Friday respectively, passed the Electoral Act (Repeal/Re-enactment) Bill, 2021, after the full consideration of the report on the bill by members in the Committee of the Whole. The majority of the 158 clauses of the bill were passed intact, excluding Clause 52(3), which initially generated tension among members.

The original 52(3) as contained in the report under consideration reads: “The Commission may transmit results of elections by electronic means where and when practicable.” Which gives the independent body the sole power to determine the practicability of electronic transmission of results without interference from anybody or authority.

But both chambers of the National Assembly, before passing the bill, amended the clause to read: “INEC may consider electronic collation of results, provided the national network coverage is adjudged to be adequate and secured by the Nigerian Communications Commission and approved by the National Assembly.” Which means that before INEC can transmit results electronically, the commission will have to seek permission from the National Assembly and NCC.

In summary, as per the passed bill, INEC cannot independently transmit election results electronically despite being an independent commission, and if the commission want to transmit results electronically, INEC, through it’s Chairman must write NASS and NCC for an approval — and NCC will henceforth be the major determinant as to whether or not — INEC can proceed to transmit election results electronically as a result of whether the national network coverage is adjudged to be adequate and secured.

Consequently, allowing the NCC and the National Assembly to meddle in the affairs of INEC will not only affect the integrity of the polls and subvert the credibility of the entire electoral process in Nigeria but subject INEC’s constitutional power to conduct elections to the Nigerian Communications Commission and National Assembly which is absolutely unconstitutional – as this limits the powers of INEC to conduct elections independently without interference from anybody or authority as enshrined in the Constitution.

Section 78 and Third Schedule, Part I, F, S.15 of the 1999 Constitution as amended are crystal clear and the National Assembly doesn’t have such constitutional power to circumvent this section that empowers INEC with full quality of being independent — freedom and exemption from reliance on, or control by anybody or authority.

For the avoidance of doubt, Section 78 of the Constitution provides that “The Registration of voters and the CONDUCT of elections shall be SUBJECT to the DIRECTION and SUPERVISION of Independent National Electoral Commission”. And in Third Schedule, Part 1, F, S.15: INEC has power to ORGANISE, UNDERTAKE and SUPERVISE all elections. The Constitution further provides that INEC OPERATIONS SHALL NOT be subject to the direction of ANYBODY or AUTHORITY.

Irrefutably, the mode of election — or of transmission of results — are critical and relevant parts of the CONDUCT, SUPERVISION, UNDERTAKING and ORGANISATION of elections in Nigeria. Of course, the National Assembly has power to make laws by fleshing out the legal framework but that power is not absolute, as it has to be consistent with the Constitution.

These constitutional powers have been solely and exclusively prescribed by the Constitution to INEC, and CANNOT BE SHARED WITH NASS or NCC, or any other Authority, and certainly not a body unknown to the Constitution. Therefore, the resolution of the both chambers of the National Assembly to subject INEC’s constitutional power to conduct elections to NCC is consequently patently VOID, unconstitutional and unlawful.

Indeed, it’s a inexplicable as to how people who are democratically elected to represent their people in the Parliament could pass an amendment bill like that — even when knowing that it’s unconstitutional and against the interest of the people in such a blatant and impertinent manner by toeing the line of a political party’s interest that’s clearly antipeople.

The choice of the All Progressive Congress, APC to put party interest before national interest by swaying their members against Electronic transmission of Election Results not only murdered democracy but clearly shows in unmistaken terms that APC as a party — is not ready to face the Nigerian electorates and so, decided to make a political coup de grâce to our already injured electoral system — through the very institution that represents the wants, needs, and aspirations of the people.

I therefore call on all lovers of democracy who see free, fair, and transparent elections as vital and crucial to our democracy, to stand up against this satanic action by taking all necessary legal steps to ensure that this fraud is not allowed to stand in any way.

NIGERIANS WANT PEACEFUL, CREDIBLE, TRANSPARENT, FREE, AND FAIR ELECTORAL PROCESS.

Let’s #EndImpunity.

Muhammed–Bello Buhari is a human rights activist, political and public affairs analyst, he writes from Kaduna and can be reached through embbuhari@gmail.com or fb.me/muhammedbellobuhari