Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
z
ns ilu io
A JOURNAL OF CONSTITUTIONAL DEVELOPMENT
TOPICS:
INSTITUTIONALCHANGE AND NIGERIA'S 2015 ELECTIONS
E. Remi Aiyede
LEGAL FRAMEWORK AND THE2015 GENERAL ELECTIONS
A. S. Akpotor
ELECTION SECURITYAND NIGERIA'S 2015 ELECTIONS:
ASSESSING THE PERFORMANCE OF THE NIGERIA POLICE FORCE
Osita Agbu & Vincent Ibonye
DETERMINANTS OF THEOUTCOMES OF THE2015 GENERAL
ELECTIONS IN NIGERIA: THE REAL ISSUESAND THEIR IMPLICATIONS
Omotoye Olorode & Magdalene A. Igbolo
HATE SPEECHESAND ELECTORAL CAMPAIGN IN THE2015 GENERAL
ELECTIONS IN NIGERIA: INTERROGATING THECAUSE, COURSE AND
LESSONSOF HISTORY
Emmanuel Osewe Akubor
NIGERIAN ELECTIONS 2015 - REFLECTIONS FOR SOUTHERN AFRICA
David Mandiyanike & Batlang Seabo
AGENTS OF PEACE IN NIGERIA'S 2015 GENERAL ELECTION:
WHO ARE THEYAND WHAT DID THEY DO?
Abdul-Gafar Tobi
BOOK REVIEW
DIDACTIC MATERIAL
THE NATIONAL CONFERENCE 2014 MAIN REPORT
UNIVER
ITY OF IBADAN LIBRARY
Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
~
Constitution
A JOURNAL OF CONSTITUTIONAL DEVELOPMENT
TOPICS:
INSTITUTIONALCHANGE AND NIGERIA'S 2015 ELECTIONS
E. Remi Aiyede
LEGAL FRAMEWORK AND THE2015 GENERAL ELECTIONS
A. S. Akpotor
ELECTION SECURITYAND NIGERIA'S 2015 ELECTIONS:
ASSESSINGTHE PERFORMANCE OF THE NIGERIA POLICE
FORCE
Osita Agbu & Vincent Ibonye
DETERMINANTS OF THEOUTCOMES OF THE 2015 GENERAL
ELECTIONS IN NIGERIA: THE REAL ISSUESAND THEIR
IMPLICATIONS
Omotoye Olorade & Magdalene A. Igbolo
.~~ .
HATE SPEECHESAND ELECtORAL CAMPAIGN IN THE2015
. GENERAL ELECTIONS iN NIGERIA: INTERROGATING THE
CAUSE, COURSE AND L-ESSONSOF HISTORY
E~iie' Osewe Akubor
NIGERIAN ELECTIONS 2015 - REFLECTIONS FOR SOUTHERN
AFRICA
David Mandiyanike & Batlang Seabo
BOOK
DIDACTIC MATERIAL
THE NATIONAL CONFERENCE 2014 MAIN REPORT
UNIVERSITY OF IBADAN LIBRARY
Published by
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ABOUT THE JOURNAL
The Constitution is a quarterly and multi-disciplinary journal for nurturing
constitutional development inNigeria Apart from scholarly output, it is didactic in
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"How is Globalisation Doing?" The Constitution, Vol. 2, No 4, June 2002, pp.1-27.
iii. The Guardian, Lagos, 28 September 2000, p. 31.
UNIVERSITY OF IBADAN LIBRARY
CONTENT
Institutional Change and Nigeria's 2015 Elections
E. Remi Aiyede 1
Legal Framework and the 2015 General Elections
A. S. Akpotor 37
Election Security and Nigeria's 2015 Elections:
Assessing the Performance of the Nigeria Police Force
Osita Agbu & Vincent Ibonye 62
Determinants of the Outcomes of the 2015 General
Elections inNigeria: The Real Issues and their Implications
Omotoye Olorode & Magdalene A. Igbolo 74
Hate Speeches and Electoral Campaign in the
2015 General Elections inNigeria: Interrogating the
Cause, Course and Lessons of History
Emmanuel Osewe Akubor 104
Nigerian Elections 2015 - Reflections for Southern Africa
David Mandiyanike & Seabo 115
Agents of peace in Nigeria's 2015 general election:
Who are they and what did they do?
Abdul-Gafar Tobi Oshodi 126
Book Review 138
The National Conference 2014 Main Report 140
vn
UNIVERSITY OF IBADAN LIBRARY
Editor's Note
Dear reader,
As a result of increasing cost of production, this issue of the
Constitution (September and December, 2015) is published as a
paired edition. This trend will be continued in 2016. Let me also
inform you that the copy price of the Journal will be reviewed
upward in 2016.
Many thanks for staying with us.
Editor.
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UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15 Nos. 3 & 4, September/December 2015
INSTITUTIONAL CHANGE AND
NIGERIA'S 2015 ELECTIONS
E. Remi Aiyede
Abstract
This essay explores the nature of the changes in the electoral rules in
Nigeria and the factors that have catalysed such changes. It explores
how the choice and adjustment of these rules have affected the
character of elections in Nigeria, It provides insights on how to deal
with emerging challenges from the recent elections, especially the 2015
elections in Nigeria. This essay argues that changes' in the electoral
institutions have been geared more to reflect descriptive
representation and functionally representative and less geographically
representative, they have also been geared towards promoting the
integrity of elections as part of the effort to achieve democratic
stability, The process of electoral reform and institutional change have
been slowed by these competing factors of democratic values and self-
interest as politicians seek to win elections in Nigeria s intense contests.
The paper concludes that the success of the 2011 and the 2015
elections show the relative positive effect of the changes that have
been made in the electoral institutions since 1999 and beyond. It
points to additional institutional issues that need to be addressed to
strengthen the gains so far made, and to ward off future challenges
that may lead to crisis.
Dr. Aiyede lectures at the Department of Political Science,
University of Ibadan, Nigeria.
1
UNIVERSITY OF IBADAN LIBRARY
The Constitution Vol. IS Nos. 3 & 4, SeptemberlDecember 2015
Introduction Furthermore, the intense political
competition, with its violence and
Electoral malpractices and their criminality, had rendered the
consequences have been electoral processes too stormy for
implicated in the political the fine effect of institutions to be
instability and the dominance of easily observed. Politics in Nigeria
military rule that characterized the is about life and death, observed
first five decades of Nigeria's Ake". Thirdly, the importance of
existence as an independent institutions is further obscured by
country. Indeed, the collapse of the the politicization of ethnic identity
First and Second Republics was or the ethnicisation of politics. This
foreshadowed by controversial carries with it, the exploitation of
elections whose process and primordial exchanges, within a
outcome suffered severe patron-client framework of politics
legitimacy deficit. The Third that elevates informality to trump
Republic failed because the formal relations and locations of
presidential election that was to power, thereby creating an
conclude the transition to civil rule impression that formal institutions
programme was annulled. On the do not matter or that informal
one hand, the 1964 and the 1983 institutions matter more. Yet there
elections which preceded the is a complex interaction between
intervention of the military in formal and informal institutions
politics were marred by electoral that play very vital role in the
malpractices either in the build up structuring of political behaviour.
to the voting process or during the Indeed, electoral rules and the
process of voting and collation of systems they create can have
results. Indeed, the preoccupation significant effects on partisan
with electoral fraud, thuggery, competition and coalition building
oppression of political opponents, as seen in Duveger's formulation
and intimidation of journalists and concerning the mechanical and
bribery of electoral officials tend psychological effects of electoral
to give the impression that the laws. While academic research has
problems are not with the system paid little attention to a detailed
but with the operators as remarked analysis of the complex network of
by the Political Bureau I. institutions that structure the
character of electoral competition
2
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
in Nigeria, politicians have paid institutions usually incorporates
attention to these. This is the process of adjudication of
manifested in the regular electoral disputes as part of the
comprehensive review of the electoral process. The focus on
various electoral laws before every Election Management Body
circle of election since 1999 when (EMB), its independence, funding,
the country returned to democratic professionalism and competence
rule. The Electoral Act 2001 and gives the impression that an
the Electoral Act 2002, Electoral effective and independent EMB is
Act 2006, and Electoral Act 2010 all you need to achieve credible and
(as amended) preceded the 2003, successful elections that lead to a
2007 and the 2011 elections consolidated democracy. However,
respectively. The 2015 elections electoral institutions are tied to the
was based more or less on the same nature of state-society relations and
legal and institutional framework of the political values that they throw
the 2011 elections with changes up, such as national integration,
effected in voter registration, vote accountability, conciliation and
counting and declaration of results, representation and not just the need
and the application of technology. for free and fair competitive
leadership succession.
Academic preoccupation with
election of the third wave This essay explores the nature of
democratization effort in Nigeria the changes in the electoral rules
has been dominated by in Nigeria and the factors that have
administration approach that focus catalysed such changes. It explores
on the election management body how the choice and adjustment of
because of the narrow conception these rules have affected the
of institutions, that more or less character of elections in Nigeria.
take the choice and adoption of It provides insights on how to deal
electoral system for granted. with emerging challenges from the
Furthermore, other institutions of recent elections, especially the
electoral governance, such as 2015 elections in Nigeria. This
dispute adjudication process fall essay argues that changes in the
out of the picture as if they are the electoral institutions have been
consequences of failed elections. geared more to reflect descriptive
Yet the crafting of electoral representation and functionally
3
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
representative and less played. They therefore affect the
geographically representative, they general outcome of the electoral
have also been geared towards process. They affect the
promoting the integrity of elections development of organizations such
as part of the effort to achieve as the election management bodies,
democratic stability. The process political parties and tribunals. They
of electoral reform and impose constraints on the choices
institutional change have been that individuals make. Further,
slowed by these competing factors institutions are created, altered and
of democratic values and self- used by human beings. Thus, they
interest as politicians seek to win are the outcome of the strategic
elections in Nigeria's intense calculations and moves by key
contests. The paper conclude that political actors, the socio-
the success of the 2011 and the structural context that defines
2015 elections show the relative power relations in society, and the
positive effect of the changes that path contingencies that shape the
have been made in the electoral traj ectories and outcomes of
institutions since 1999 and beyond. democratic transitions". Mozaffar
It points to additional, institutional and Schedler" classify such rules
issues that needs to be addressed into two: Rules of Electoral
to strengthen the gains so far made, Competition which relates to
and to ward off future challenges electoral formula, district
that may lead to crisis. magnitude, assembly size, electoral
time table, and franchise; and the
Electoral Institutions, Electoral Rules of Electoral Governance
Systems and Democratic relating to voter registration, party
Politics and candidate registration,
campaign financing and regulation,
Following North", electoral election observation, ballot design,
institutions may simply be defined polling stations, voting, counting,
as the rules of the electoral game. and tabulating, election
They are devised constraints that management bodies and dispute
shape the interaction of actors in settlement authorities. Institutions
the electoral process. Electoral may be formal rules such as
institutions impose constraints on constitutions and laws or informal
key actors in the electoral process rules such as unwritten codes,
by stating how the game is to be
4
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
conventions and norms of Generally, it is assumed that the
behaviour. Not only do these essence of electoral institutions is
interact, they are path dependent, to accurately reflect the
that is, they reflect on the trajectory preferences of voters in terms of
of history of the polity. But the electoral outcome. But electoral
important point about formal rules systems themselves are not passive
is that they reflect choices made by instruments in the process of
key actors in the polity. Thus, any translating individual wishes into
meaningful attempt to engage collective choice as we have stated
electoral institutions should focus earlier. Every electoral system
on the purposes for which the game contains specific biases reflected
of politics is played, recognizing in the effects they have on voter
that actors can play the game by fair preferences. Hence, the choice of
means as well as by foul means. It electoral systems are informed by
is in the process of playing the specific objectives, objectives that
game that the incentive structures a people want to achieve or avoid.
are observed and altered, usually in Thus, policy makers have to decide
response to challenges in the which system will help achieve
application of the rules, informal specific objectives and reflect how
constraints and in their effective to go about it. What this means is
enforcement. It involves a that given the array of electoral
continuous process of incremental systems available in the world and
changes. But it must be recognized the room for modification and
that changing the formal rules of change, electoral institutions will
the game or adopting a new evolve over time within a polity
electoral system will not even if the choice of electoral
automatically transform the way system was not necessarily a
politicians and constituents behave. conscious choice. For instance,
The electoral institutions are just a Horowitz? is of the view that the
small part of the forces that affect first-past-the-post system is
behaviour",They interact with other common among the English
rules such as those that regulate speaking world. It operates in the
political parties, define the UK, USA, Canada, India, Nigeria,
structure of the state itself and the and Malaysia and in most
values of governance. Anglophone African countries. The
Proportional representation
5
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, September/December 2015
system is common among the achieved by ensuring that citizens
francophone countries in Africa in each electoral constituency or
and in continental Europe. district are able to choose a
However, deliberate choice based member of parliament that would
on specified objectives is ultimately be accountable to them.
commended given the likely Functional representation involves
consequences. The general trend is ensuring that all parties achieve
the use of hybrid systems as seats in parliament according to the
countries seeks to maximize more votes they receive. Descriptive
than one goal. This applies not only representation is in terms of the
to the electoral formula but also in parliament reflecting the
terms of the structures that manage disposition of the society at large,
elections. Thus, in crafting a "mirror of the nation", reflecting
electoral institutions, the specific its demographic and cultural
goals and challenges of a country characteristics. Horowitz!'
are critical. Some objectives may describes these in terms of the
be informed by concern about the proportionality of seats to votes
outlook of parliament and and accountability to constituents.
government in a multi-ethnic For him, the PR system ensures the
society or by the desire to provide proportionality of seats to votes
opportunity for independent through the national list and the
candidacy while at the same time single non-transferable vote
encouraging the institutionalisation system. He adds that systems that
of party politics. do not limit the power of central
party leaders to decide which
Horowitz" and Reynolds and candidate will be nominated by the
Reilly? provide likely goals that can party are less likely to promote
inform the design of electoral accountability than those in which
institutions. These include the need the decision is derived from the
to enhance representation, constituency base.
accountability and election
integrity. According to Reynolds Another value that may inform the
and Reilly'? representation can take choice of electoral system will be
three ways. The first relate to the the desire to have a stable or durable
desire to ensure geographical government. According to
representation which can be Duverger'? the SMP system tends
6
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. IS, Nos. 3 & 4, SeptemberfDecember 2015
to lead to centrist, non-ideological parties that are likely to compete
pragmatic or "brokerage" politics in elections, depending on the
as parties compete for the "median threshold and size of electoral
voter". It increases incentives for districts. This is because no party
strategic voting, since a vote for a is likely to be seen by voters as a
minor party candidate may be wasted choice. It makes it unlikely
wasted, leading to the voter's least- that a single party will hold a
preferred candidate being elected. majority of seats in the legislature,
It tends to reinforce perceptions of and thus makes either minority or
regional exclusion and grievances coalition governments the norm in
because it expands the advantage parliamentary systems. In such
enjoyed by the largest political contexts, the composition of a
party in a region in vote-seat government and the policies of that
conversions and punish relatively government are likely to be
smaller parties. When used at the decided not by the election but by
provincial level, it may allow the post-election negotiations among
majority social group in a territory party leaders. The major problem
to govern alone, while facilitating here is that it weakens the ability
the consistent exclusion of ethnic, of legislators in parties that operate
linguistic or religious minorities nationwide to act as regional
from political power. It may allow representatives, since they are
a political party that is hostile to likely to be bound by party
national unity to gain a strong discipline. Furthermore, it leads to
power base through control of a programmatic parties which seek
single-party majority government distinctive appeals to relatively
in a state, which it can then use to narrow shares of the electorates 14.
pursue separatist policies and
popular sentiments. Given the Otherfactorsthatmay influencechoiceof
above, the tendency around the rulesoradjustmentoftherulesincludethe
world is for countries to move need to achieve a representative
away from SMP to some sort ofPR parliament, accountability, guarantee
or modified SMP to reduce its victoryof the Condorcet,stable,efficient
negative effects 13. anddurablegovernment;inter-ethnicand
inter-religiousconciliation(withincentive
The PR system, on the other hand, for conciliation), accessible and
tends to increase the number of meaningful electoral process (votes
7
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
count, not difficult to vote, are often coloured by values and
parliament is relevant), promote ideology as much as self-interest".
parliamentary opposition, promote
party strength, broad political values Furthermore, there is a global flow
rather than narrow ethnic, regional of ideas about standards of
or racial concerns, reduce cost and practices in elections that inform
build administrative capacity of the the decisions and plans of not only
EMB. There is always a trade-off those that make laws and thereby
to maximize goals - sometimes define the framework of electoral
countries end up with hybrid governance but also informs the
systems. operations of an EMB. Some of
these ideas are derived from studies
Interestingly, because electoral that seek to explain the success or
institutions often have clear cut failures of elections. But most of
effects in determining who is the time they are represented by
elected and who is able to influence standards and principles endorsed
the political agenda, politicians are in a series of conventions, treaties,
often concerned about changes in protocols and guidelines by
the institutions. That is why it is international agencies and regional
argued that losers who want to bodies like the UN general
become winners often support Assembly, theAfrican Union (AU),
changes that they anticipate may the Organisation of American
make them winners or give them States (OAS) and the Organisation
more leverage over policy making. for Security and Cooperation in
On the other hand incumbents want Europe (OSCE). These constitute
to retain the status quo. Changes the international standards and
only occur when sufficient number global norms that govern the
of incumbents expect to gain with appropriate conduct of elections.
the introduction of new rules or The integrity and quality of
opposition forces reach sufficient elections in a country are often
density to forces change upon measured by the extent to which
incumbents. Thus a politician's they meet the requirements of
position on electoral institutions these more or less universal
standards I 6.
8
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
Electoral Institutional Changes elections with the country divided
Before 1999 into constituencies according to
population. The unbalanced federal
Nigeria's experience with election structure reflected in the
dates back to the 1922 under the distribution of the constituencies
Clifford Constitution, but its first and the outcome of the elections.
major election was the 1959 The Northern Region had 175
independence election. That constituencies, the Eastern Region
election and the subsequent 73 constituencies, the Western
election of 1964 demonstrated the Region 47 constituencies, the
problematic character of election Midwestern Region 15
for the newly independent country. constituencies and Lagos three
The electoral challenges were constituencies. The north was
complicated by the structural clearly greater than all the other
imbalance of the structure of the parts put together. Secondly, the
federation. Under the direct election by SMP means that
parliamentary system in the First seats in parliament were not
Republic, elections were proportionate to the number of
conducted only into the House of votes garnered by each political
Representatives. The President was party. The three major parties in the
elected by a joint "electoral First Republic each had a strong
meeting" of the Senate and the one of the three regions and as such
House of Representatives. The were ethnic based. The limited
Senate was made up of selected ethnic coverage of the parties led
members. The 1963 Constitution to fragile coalition governments.
made provisions for the election of Lastly, with politics as the chief
the President by a joint meeting of means to acquire wealth,
the two houses of parliament. But membership of the political class
no such election took place since became highly sought after and
the same Constitution name Dr ultimately politics was reduced to
NnamdiAzikiwe as President, with the struggle for an access to wealth.
full status of an elected President. It thus became very violent,
There were 312 elected members intensifying conflict between
of the House of Representatives. competing coalitions, ultimately
They were elected by direct leading to crisis and military rule".
9
UNIVERSITY OF IBADAN LIB
ARY
The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
When the country was about to be addition to having record "not less
returned to democratic rule in than one-quarter of the votes cast
1979, an elaborate review of the at the election in each of at least
institutions of the First Republic two-thirds of all states in the
was done. The parliamentary federation and the Federal Capital
system was abandoned for the Territory." Where no clear winner
presidential system. The electoral emerges, there was to be a run-off
institutions were changed in many election between the two highest
respects arising from this change performing candidates. The
in the system of government. Clear government had split the country
measures were taken to reduce the into 19 states, it stipulated the
impact of ethnicity. This was shown observance of federal character in
in the provision in sections 201, appointments and election into
202 and 203 of the 1979 public offices."
Constitution. These sections
related to the character of political These provision of the constitution
parties, their symbols, membership, in 1979 did not however eliminate
internal democratic structures, ethnic based parties in the Second
leadership recruitment and spread Republic (1979-1983). This was
(federal character), and the values largely due to the presence of two
that define the goals of the parties. leading politicians of the First
The aimwas to break away from the Republic, ChiefObafemiAwolowo
ethnic-based parties of the First and Dr Nnamdi Azikiwe, who led
Republic and to promote two major parties and continued to
conciliatory behaviour and deepen draw followers largely from their
interaction across ethnic and ethnic base. The persistence of
regional groupings. A new electoral ethnic based parties ensured that
formula which required there was no decisive dominance of
presidential candidates to win 25 any party under the presidential
per cent of votes in 2/3 of the states system adopted in 1979. But as
of the federation, complemented Whitaker!" noted the 1979
these provisions. According to elections began the shift towards a
Section 134 of the 1979, where more national outlook of the
there were two or more candidates parties. The new electoral formula
the winner must have a majority of made it clear that the reversion to
votes cast at the election, in ethnic mobilization would not
10
UNIVERSITY OF IBADAN LIBRARY
The Constitution, VoL 15, Nos. 3 & 4, September/December 2015
advance the quest of politicians to of complicity in rigging election or
win national election because it is inciting people to acts of violence,
neither necessary nor sufficient to it blamed FEDECO for
gain competitive edge that is management lapses, especially in
needed to for a party to flourish. its inability to resolve its own
internal conflicts. The Babalakin
The presidential system with its Commission recommended that
characteristics of separation of elections officers should be
powers meant also that the both properly trained to enable FEDECO
president and parliament were "build up a corps of permanent staff
elected. All elections were direct whose tenure would be guaranteed
elections with single-member subject to good behaviour and good
constituencies/districts. While performance. This was because
each state was divided into five some staff of FEDECO were
senatorial districts, the country was complicit in the rigging of
divided into 450 federal elections". During this period,
constituencies. The SMP system High Court judges constituted the
was used in all cases, except in the tribunals that handled election
presidential elections in which the petitions. The second general
SMP was modified. elections in 1983 were riddled
with malpractices and misuse ofthe
Similarly, like the First Republic a federal control of the police and
specialized EMB, Federal ultimately provoked the coup of
Electoral Commission (FEDEC(});- December 31, 1983.20 ---.-
was used to administer elections.
The President was empowered to The Third Republic failed on the
appoint the chairman and members annulment of the -1993 Presidential
of FEDECO drawn from the elections that were considered the
various constituent units. FEDECO freest, fairest and most peaceful
suffered severe legitimacy deficits election in Nigeria. The elections
because losers accused it of was supposed to complete the
complicity in the rigging of transition from military rule to
elections. Although the Babalakin civilian rule. Previously, elections
Commission that, investigated the -. had-been conducted at.the-state and. .-,; ,"'c' ,
conduct of the 1983 election did local government levels. The first
not find it guilty of corruption or elections, the local government
11
UNIVERSITY OF IBADAN LIBRARY
The Constitution Vol. 15. Nos. 3 & 4. SeptemberlDecember 2015
elections were held in 1987, the of States to appoint the chairman
state level elections (Governor and and eight commissioners of NEC
House of Assembly) were held in on the nomination of the president.
1991 while the National Assembly The members of the commission
elections were held in 1992, and were expected to be non-partisan
the presidential elections in 1993. persons of proven integrity and all
The essence was to gradually re- members were originally barred
orient Nigerians on qemocratic from holding elective offices
practices as the military during the period of transition to
government of General Ibrahim civil rule. The ban was lifted by
Babangida sought to build a new Decree No.9 of 1989.22
political culture for the country.
Those elections witnessed There were three tribunals to
innovations in the structure of the handle election petitions:
EMB and other institutions of presidential election tribunals, the
partisan politics." state governorship and legislative
elections tribunals and the local
General Ibrahim Babangida (1985- government elections tribunal.
1993) established a two-party Only retired judges and . lawyers
system to promote more national were qualified to serve as judges in
parties in which members would be these tribunals. There was also
co-joiners. The parties were small number of legal practitioners
established and funded by involved. Appeal against the
government to prevent their being decisions of these bodies lay with
hijacked by money bags, and to the Supreme Court, Court of Appeal
ensure they do not reflect the and High Court of a State
ethnic base of their founders. The respectively. Although all of these
Social Democratic Party (SDP) provisions guided the elections
was a little to the left while the state above, the process of
National Republican Convention democratisation was never
(NRC) was a little to the right of concluded due to the annulment of
the ideological spectrum. The the June 12, 1993 presidential
National Electoral Commission elections won by Chief Moshood
.•, . - d-.-(NEC) was established by Decree Abiola of the Social: Democratic
No. 23 of 1987. The decree Party (SDP)Y
empowered the National Council
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
The crisis provoked by that Nonetheless, the rotation of vital
annulment reversed the gains public offices, between the north
achieved by that process, it led to and the south and among the six-
the exit of Babangida who left the geopolitical zones, and the
ship of state in the hands of an allocation of appointive and
interim government headed by elective offices in the same manner
Earnest Shonekan. The Interim in the political parties and
government was eventually sacked parliament became the formula for
by General Sani Abacha who realising the federal character
demolished all democratic principle stated in the 1979 and
structure and convened a National 1999 constitutions.
Constitutional conference to deal
with the emerging problems. At the Institutional changes between
National Constitutional the 1999 and the 2015 Elections
Conference of 1994/1995, power-
sharing became a major issue of The prospect of innovation in the
debate as a way out of the workings of electoral institutions
impasse." came with the return to democratic
rule in 1999. In the first term of
The conference agreed by the Chief Olusegun Obasanjo
consensus that the presidency shall administration (1999-2003),
rotate between the north and the constitutional amendment was high
south. In the same spirit, the office on the agenda. Two parallel
of governor shall rotate among the constitutional review committees
three senatorial districts of a state were established, one by the
while Chairmanship of a local President and the other by the
government shall rotate among the National Assembly. The Chief
three sections into which each Clement Ebiri Constitution Review
local government shall be divided Committee submitted its report in
by the State Independent Electoral mid-2001 to the President while
Commission." the National Assembly Joint
Committee on the Review of the
Although this rotation principle 1999 Constitution submitted a
was written into the 1995 draft Amended Constitution in
Constitution, it did not find its way 2002. Both efforts did not move
into the 1999 Constitution. beyond these points before the
13
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 20 I 5
2003 general elections. President and conducted public hearings
Obasanjo inaugurated a Political across the country and
Reform Conference and eventually commissioned studies that
proposed over a hundred informed its final
amendments to the constitution, recommendations.
including the vexed issue of tenure
elongation, in 2006 during the According to the committee, the
second term. The proposed factors responsible for electoral
amendments bill was eventually irregularities, malpractices,
shot down after spirited effort to disruptions and violence "include,
push it through the National among others, the character of the
Assembly. This failed efforts would Nigerian state as the arena of
have been the major means of electoral contests, the existence of
electoral institutional reforms weak democratic institutions and
before theYar'AduaAdministration processes; negative political
(2007-2010).26 culture; weak legal/institutional
framework; and lack of
The issue of electoral reform independence and capacity of
became rife when President electoral management bodies"."
Yar' Adua during his inaugural
speech, admitted that the April The committee recommended
2007 election that brought him to various institutional reforms to
power was marred by irregularities strengthen electoral administration.
and fraud. The President went on to To make the Independent National
promise electoral reform to Electoral Commission (INEC) truly
ensure a more credible and independent, the committee
effective electoral system. To recommended the removal of the
show his commitment to electoral powers of the President to appoint
reform, he constituted an electoral the chairman and members ofINEC
reform committee headed by and the empowerment of the
Justice Uwais on August 28, 2007. National Judicial Council to do so.
The Panel submitted its report on The Commission was to be
December 11, 2008 after working reorganized. The funding of INEC
for about 16 months. The to be first-charged on the
committee received memoranda Consolidated Revenue Fund of the
from several individuals and groups Federation. The States Independent
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
Electoral Commissions were to be It called for the setting up of an
integrated into the structures of Electoral Offences Commission to
INEC. The structure of INEC prosecute electoral offenders. It
should consist of a board also recommended that at least five
responsible for electoral policy judges should seat when the Court
and direction for the commission of Appeal hears appeals on an
and a technical team responsible election petition, and the
for actual conduct of elections. conclusion of election disputes
before candidates were sworn in
The Committee further recommended and that the process of adjudicating
that the electoral system should be a election disputes be concluded
mixed system, with an introduction of within six months. It further
elements of proportional recommended that the burden of
representation, including the idea that proof in a case of election petition
parties that secure 2.5% seats in the should shift from the petitioner to
national assembly be considered for INEC, INEC was to show proof that
cabinet level appointments to elections were free and fair when
reduce the intensity of electoral challenged.
competition. Several ideas to make
the political process more inclusive To fast track the process of
through the electoral process, implementation, the committee
including gender balance, were also recommended that the constitutional
proposed. It recommended the amendments involved in the
establishment of a Constituency proposed electoral reforms should
Delimitation Commission that not be immersed in the larger effort
would incorporate the National to review the 1999 constitution. They
Population Commission and the should be taken separately. The
National Boundaries Commission, committee prepared three draft bills
the National Bureau of Statistics, for the amendment of the 1999
Office of the Surveyor General of Constitution, the amendment of the
the Federation and the National Electoral Act 2006 and for the
Identity Management Commission. establishment of the Electoral
A Centre for Democratic Studies Offences Commission. The
for civic and political education was committee was apparently convinced
also recommended. that the president and his party were
15
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
committed to carryout fundamental duplication of the functions of
electoral reforms. INEC. These were just two of the
seven bills on electoral reforms
These recommendations were presented to the National
reviewed by both the Federal Assembly.
Executive Council and the National
Council of States (NCS). Both As the controversy over the
councils rej ected significant proposals raged, President
aspects of the Committee's Yar'Adua became very ill and had
recommendations. Among the to travel in search of medical help.
recommendations rejected were But he departed without
the removal of the powers of the transferring responsibility to the
president to appoint the chairman Vice President as required by law.
and members of INEC, the His absence became a major
recommendation of a time-frame political issue that dragged on till
for concluding election petition the following year. In February
before the swearing-in of winners, 2010 the National Assembly
and the incorporation of the State declared Vice President Goodluck
Independent Electoral Jonathan Acting President.
Commissions (SIECs) into the President Yar'Adua eventually died
structures of INEC. President on May 5, 2010. He was succeeded
Yar' Adua sent seven bills to the by President Goodluck Jonathan.
National Assembly to further The later promised to conduct free
underscore his commitment to and fair elections and to continue
electoral reform. The bills did not with the electoral reforms initiated
enjoy the full support of the by Yar' Adua. He appointed
National Assembly. The bill put Professor Attahiru Jega as
forward to increase membership Chairman, INEC.
and extend the tenure of members
of INEC was thrown out by the Four factors account for the
Senate because they involved direction of institutional changes
constitutional amendments. The subsequently. The first was the
bill for the establishment of the crisis that attended president Yar's
Political Parties Registration Adua's illness culminating in the
Commission was also thrown out delayed appointment of the
because it involved an unnecessary Chairman of INEC after the
16
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, September/December 2015
expiration ofthe tenure of Maurice These reversals put more states
Iwu. By the time Jega was under the control of opposition
appointed INEC Chairman, it was parties. These reversals therefore
too late to observe the time underscored the need for electoral
schedule stipulated for elections in reforms.
the constitution. The constitution
had to be amended to take care of Fourth, Jega was a member of the
the contingencies. Electoral Reform Committee
instituted by PresidentYarA.dua.He
Second, the National Assembly had therefore implemented several of
suffered from high turnover of the recommendations made by the
members attributable to the committee that were internal to the
excessive powers wielded by the EMB or within the powers of his
president and the governors in office and the Commission. These
determining who was selected as a include the voting procedure, the
party delegate to vote during internal structure of INEC, the
primaries. Legislators who had announcement of results and the
demonstrated independence of application of technology for both
opinion or openly challenged these registration and voter accreditation.
executive heads were usually
blocked from re-emerging as party The main changes in the electoral
candidates. To strengthen their rules were to be found in the
influence over the party, the Electoral Act 2010 and the
legislators attempted to legislate to amendments to the 1999
make parliamentarians automatic Constitution in 2011. The
delegates at such primaries but had remaining part of this section
to withdraw in the face of reviews the electoral Act 2010 vis-
opposition to the move by civil a-vis the 2002 and 2006 Acts, and
society. Public opinion was in the amendment to the 1999
favour of advancing internal party Constitution on electoral matters.
democracy as a solution.
Apart from the 1999 Constitution,
Third, the results of at least five the first major law that guided
gubernatorial elections won by elections in Nigeria was the
candidates of the ruling PDP in Electoral Act 2002. The content of
2007 were reversed by the courts. the Act was similar to the 1982
17
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
Electoral Act. The Constitution and census figures. It upholds the single
the Act provided elaborately for the member district formula of the
governance of elections. The broad 1979 Constitution. To be President,
rules governing the structure of a candidate must not only win the
electoral competition, under the majority of YES votes over NO
1999 Constitution relate to the votes, he must record "not less than
qualifications of candidates for one-quarter of the votes cast at the
elections into the various elective election in each of at least two-
posts, electoral formulas, district thirds of all states in the federation
magnitudes, constituencyboundaries and the Federal Capital Territory."
and assembly size. According to Section 134, where
there are two or more candidates
Section 48 and 49 of the the winner must have a majority of
Constitution provides for three votes cast at the election, in
senators from each state and 360 addition to having record "not less
members of the House of than one-quarter of the votes cast
Representatives respectively. at the election in each of at least
While the distribution of two-thirds of all states in the
membership of the Senate is based federation and the Federal Capital
on equal number per state, Territory." Where no clear winner
membership of the House of emerges there shall be a run-off
Representatives is based on election between the two highest
population of each state of the performing candidates within
federation. Section 71 defines the twelve days.
magnitude of the districts and
constituencies while section 73 Sections 31 to 40 of the Electoral
prescribes the basis and manner for Act 2010 (as Amended) deal with
the review of senatorial districts the nomination of candidates to
and federal constituencies. Such a contest for an elective position.
review is to be done by !NEC at According to the provisions of
intervals of not less than ten years. section (31) (1), political parties
Section 74 subjects such a review should submit a list of candidates
to the approval of the National being sponsored to !NEC not later
Assembly. Section 75 requires that than 60 days before the elections.
population is ascertained by The Act prohibits the nomination
reference to the latest national of more than one candidate by a
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The Constitution, Vol. 15, Nos. 3 & 4 SeptemberlDecember 2015
party in respect of an election to a of the constitution, the
particular office. A party can Commission is made up of a
however change any of its Chairman and 12 other members
candidates 45 days before the (electoral commissioners), whose
elections (section 34). In case of appointment are made by the
death of a candidate, the Chief President in consultation with the
National Electoral Officer or the National Council of States and
Resident Electoral Commissioner subject to confirmation by the
is to countermand the poll in which Senate. A Resident Electoral
the candidate is to participate and Commissioner is to be appointed
appoint another convenient date for for each state of the federation by
the election (section 37). Section the President.
65 (1 and 2) of the 1999
Constitution stipulates the INEC is saddled with the
conditions of eligibility into the responsibility to organize,
Senate and the House of undertake and supervise all
Representative. According to the elections to the offices of the
section, a candidate should be a President and Vice-president, the
Nigerian of 35 years, hold a school Governor and Deputy Governor of
certificate and is a member of a a state, and to the membership of
party and is sponsored by that party the Senate, the House of
to be eligible for election into the Representatives and the House of
Senate. The minimum age for Assembly of each State of the
membership of the House is 30 Federation. It is to register
years. political parties in accordance with
the provisions of the Constitution
One of the most significant aspects and an Act of the National
of the electoral law relates to the Assembly; monitor the
electoral umpire, INEC. Section organization and operation of the
153 of the 1999 Constitution had political parties, including their
established the Independent finances; and arrange for the annual
National Electoral Commission examination and auditing of the
while Section C Part I of the Third funds and accounts of political
Schedule of the Constitution parties, and publish a report on
defined its composition and such examination and audit for
powers. According to that section public information. In addition, the
19
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
commission is to arrange and stipulating that the President can
conduct the registration of persons only remove members of the
qualified to vote as well as prepare, commission by President acting on
maintain and revise the register of an address supported by two-
voters for the purpose of any thirds majority of the Senate
election under the Constitution; praying that he be so removed. The
INEC monitors political campaigns Commission is not subject to the
and provide rules and regulations, direction of any person or authority
which shall govern the political in "exercising its powers to make
parties; and ensure that all Electoral appointments or to exercise
Commissioners, Electoral and disciplinary control over persons".
Returning officers take and The Electoral Act 2010,
subscribe to the oath of office complements the constitution to
prescribed by law. It may delegate strengthen INEC's autonomy by
any of its powers to any Resident giving its power to appoint its own
Electoral Commissioners; and secretary who is the head of
carry out such other functions as administration. It also made it
may be conferred upon it by anAct impossible for the President to
of the National Assembly. single-handedly remove a Resident
Electoral Commissioner in the
Electoral Act 2010 (as amended) states. According to the Act, a
drawing on sections 226 and 227 Resident Electoral Commissioner
of the 1999 Constitution expands can only be removed by the
the functions of INEC to include President acting on an address
(a) conduct of 'voter and civic supported by two-third majority of
education', (b) promotion of the Senate praying that such
'knowledge of sound democratic Resident Electoral Commissioner
election processes'; and (c) be so removed for inability to
conduct of 'any referendum discharge the functions of his
required to be conducted pursuant office or for misconduct. In the
to the provision of the 1999 past, the President removes or
Constitution or any other law/Act redeploys these officers at will.
ofthe National Assembly' (Section
2). Sections 157 and 158 of the The Constitution envisages
constitution attempt to guarantee political parties that were national
INEC's independence by in character. It requires party
20
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
membership to be open to every Assembly. While INEC is to fix the
citizen of Nigeria irrespective of date of election, such a date "shall
his or her place of origin, not be earlier than sixty days before
circumstance of birth, sex, religion and not later than the date on which
or ethnic origin. They are to be the House stands dissolved".
registered with INEC. The name of Section 77 stipulates direct
the association, its symbol or election in a single member district
'logo' must not contain any ethnic and establishes 18 years as the
or religious connotation or give voting age. Section 78 empowers
the impression that its activities are INEC to register voters and
confined to a part only of the conduct elections while section 79
geographical area of Nigeria. The empowers the National Assembly
headquarters must be situated in to make provisions in respect of
the Federal Capital Territory. electoral disputes. Similar
Members of the executive provisions are made for state level
committee of the party must also elections in sections 112 to 119 of
reflect the federal character of the Constitution.
Nigeria while its principal officers
and members of its executive Section 132 and 133 make special
committee must be elected provision for presidential and
periodically on a democratic basis. gubernatorial elections. According
Part V of the Electoral Act 2010 to section 132, INEC is to appoint
(as amended) deals with the party the date for elections into these
system. It restates the conditions offices, "not earlier than 150 days
specified by the constitution for and but less than 120 days before
the formation of political parties the expiry of the term of office of
with specific additions. These the last holder of the office". This
additions include: the penalties for section also permits INEC to
contravention of section 227 of the extend the time of nomination if
constitution which prohibits the one of the candidates nominated for
formation of quasi-military election to the office of President
organizations. is the only candidate after the close
of nomination. Section 221
Section 76 of the Constitution prohibits all association except
defines the specific time of political parties from canvassing
election into the National votes for any candidate at any
21
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberlDecember 2015
elections or contributing to the provisions of the 2002 and 2006
election expenses of any candidate provisions).
at an election. Similar provisions
are made in respect of The Constitution provides against
gubernatorial elections in sections the unwholesome use of money
179 of the Constitution. from spurious sources in electoral
campaigns. Section 221 provides as
Part III of the Electoral Act 2010 follows:
(as amended) makes elaborate "No association, other than a
provision for registration of voters. political party, shall canvass for
Voters' registration is to stop not votes for any candidate at any
later than 60 days before any election or contribute to the funds
elections covered by theAct (it was of any political party or to the
60 days in the Electoral Act 2002 election expenses of any
and 120 days in the 2006 Act). It candidate at an election"
forbids surrogate registration. Sections 225, 226 and 227 of the
Part IV of the Electoral Act 2010 constitution deal with parties
(as amended) deals with the financing and accountability. They
procedure at election. It empowers require political parties to submit
INEC to determine the procedure. detailed annual statements and
According to section (27) (1) analysis of sources of funds and
Election results are to be other assets and statements of
announced by (a) the Presiding expenditure to INEC. INEC is
Officer at the polling unit; (b) the expected to submit a report on the
Ward Collation Officer at the Ward accounts and balance sheet of every
Collation Centre; (c) The Local political party to the National
Government or Area Council Assembly. Section 89 of the
Collation Officer at the Local Electoral Act compliments this
Government / Area Council provision by specifying the period
Collation centre; (d) the State to be covered as I" January to 3l "
Collation Officer at the State December in each year. The Act
Collation Centre. The Returning also empowers INEC to authorise
Officers at the various levels are to any of its officers to access the
announce and declare the winner records and audited accounts kept
(these were similar to the by a party. The commission is to
22
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos, 3 & 4, September/December 2015
publish such examination or audit campaign finance regulations that
in three national newspapers, expand the provisions of the
Constitution. Section 90 of the
Section 229 of the Constitution Electoral Act, provides penalties
interprets "association" to mean for offences relating to finances of
any body of persons corporate or political party, including any party
unincorporated who agrees to act that contravenes section 225 (3) of
together for any commop purpose, the constitution, with regard to
and includes an association formed money transferred from abroad
for any ethnic, social, cultural, commits an offence. Section 92 of
occupational or religious the Act make it mandatory for
purpose, Section 228 enables the parties to provide statement of
'National Assembly to make laws electiori expensestoIf-Et".
providing for punishment of any
person involved in the management Related to these provisions is the
or control of any political party, Companies and Allied Matters Act
found after due inquiry to have (CAMA), 1990. Section 38 (2) of
contravened sections 221, 225 (3) this Act, precludes companies from
and 227 of the constitution. making a donation or gift of any of
its property or funds to a political
Section 87 of Electoral Act 2010 party or association for political
(as Amended), requires parties to purpose. TheIaw provides that
conduct direct or indirect officers in default shall be liable to
primaries for aspirants to elective+- refund to the company the' sumor -'
positions. It further elaborates the gift so donated. The company/
procedures for indirect primaries officers shall also be guilty of an
for positions at various levels and offence and liable to fine.
institutions of government. Unlike
the 2002 and 2006 Acts it did not Sections 88-93 of the Electoral Act
provide financial grants to political 2010 deal with campaign
parties, a provision that is believed contributions. Each party is to
to have accounted for proliferation keep a record of all contributions
of weak parties before 2007, and the amount contributed.
'. .' - ~'.>-- ,"Section- 91 puts a, ceiling on
The Electoral Act 2010 (as maximum expenditure to be
amended) provides copiously for incurred by candidates according to
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UNIVERSITY OF IBADAN LIBRARY
The Constitution Vol. 15, Nos. 3 & 4, September/December 2015
the offices they are vying for. This is presented in the table below:
Table 1: Ceiling on Campaign Expenditure by Candidates
Candidates Maximum Election Maximum Election
Expenses Expenses
2006 Act 2010 Act
N N ~
Presidential Candidates 500,000,000.00 1,000,000,000,00
Gubernatorial Candidates 100, 000,000.00 200,000,000.00
Senatorial Candidates 20,000,000.00 40,000,000.00
Candidates fur the House of 10,000,000.00 20,000,000.00
Representatives
Candidates for State House of 5,000,000.00 10,000,000.00
Assembly
Candidates fur Chairman of Local 5,000,000 10,000,000.00
Government
Councillorship Candidates 500,000.00 1,000,000.00
Source: drawn from figures in Electoral Act 2006 and Electoral Act 2010
Section 91 (12) of the Electoral meetings, wilful defacement or
Act 2010 (as amended) stipulates destruction of nomination paper;
that any accountant who "falsifies forgery of registration card; or
or conspires or aids a candidate to knowingly giving false information
forge or'falsifytrdocumerrtretating .or making false statementwith' y~
to his expenditure at an election or reference to any application for
receipt or donation for the election registration, and so on. The
commits an offence that is liable penalties for these offences are
to 10 years imprisonment". It is also clearly stated. Section 139 of
important to note that there have the Act asserts that these offences
been changes in the ceilings from apply to the recall of a member of
2006 Act to 2010 Act. Part VII, the legislature and Local
sections 117-132, ofthe Electoral Government Councillors.
Act 2010 (as amended) provided a
x c-", 'detailed list-of electoral offences Part IX SectioR·28S of=-the
from Improper use of voters cards Constitution is devoted to the
to disorderly behaviour at political determination of election petitions.
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The Constitution, Vol. 15 Nos. 3 & 4, SeptemberlDecember 2015
It makes elaborate provisions for elected another candidate who is
the establishment of electoral determined to have scored the
tribunals. Section 137 states highest number of valid votes cast
clearly those with locus standi to in an election where the candidate
present an election petition: (a) A who was returned as elected did not
candidate in an election (b) a win majority of valid votes. Section
political party which participated in 149 gives 21 days from date of
the election. decision for appeal against a
decision made by election tribunal
According to Section 138, election or the court. The rules of
can only be questioned on the procedures for election petition
following grounds and appeals are set forth in the first
(a) that a person whose election schedule of the Electoral Act 2010
is questioned was, at the time (as amended).
of the election, not qualified
to contest the election; Teasing out Key innovations in
(b) that the election was invalid by the Constitution (as amended)
reason of corrupt practices or and Electoral Act 2010 (as
non-compliance with the amended)
provisions of the Act Some of the constitutional changes
(c) that the respondent was not in the constitution and the electoral
duly elected by majority of acts that had consequences for the
lawful votes cast at the success of the 2011 and 2015
election; or elections include the following
Constitutional amendments. The
(d) That the petitioner or its first areas of intervention was the
candidate was validly adjustment of the timing of
nominated but unlawfully elections to address the
excluded from the election. contingencies around the 2011
elections. The amendment to
Section 147 (1) empowers the section 81 guaranteed the financial
tribunals to nullify an election if it autonomy of INEC by providing
determines that an elected that INEC funds be paid directly
candidate was not validly elected. from the Consolidated Revenue
Subsection 2 empowers the Fund of the federation. The First
tribunal or court to declare as
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The Constitution, Vol. ) 5, Nos. 3 & 4 SeptemberlDecember 20) 5
Alteration Act amendment N0.15 the Governorship Election
to the Constitution (section 156) Tribunals as the Tribunal with
qualified the eligibility original jurisdiction, but appeal
requirements for membership of proceeds to the Court ofAppeal and
INEC to make it non-partisan while the Supreme Court. Previously,
No. 16 strengthened the operational appeals on governorship elections
independence ofINEC and gave the terminate at the Court of Appeal.
organisation power to make its own • Provisions for continuous
rules to regulate its own registration exercise,
•procedures without the approval or annual publication of
control of the President (section registration, transfer of
160). registration location,
release of a copy of voters'
Furthermore, amendment 22 of the register on the payment of
First Alteration Act empowered the a fee.
National Assembly to provide • The act also guaranteed that
guidelines and rules regarding elections results are
internal democracy for parties, and announced from the polling
covered powers on INEC to be unit, collation centres and
more effective in ensuring internal the final constituency levels
democracy and transparency in these enables access to the
party congresses and primaries results from the lowest
(section 228 (a) & (b). level of the polling unit to
highest constituency level.
The first and second alteration acts It promotes transparency.
dealt extensively with election • With regard to political
disputes and the jurisdictions of the parties the Act empowers
courts and tribunals. The first INEC to deregister parties.
alteration gave the Court ofAppeal It also requires that parties
original jurisdiction to determine must hold primaries and
whether any person has been provide penalties for not
validly elected governor or deputy observing rules.
governor, including petitions • There is also a ceiling on
arising from governorship campaign or party finance,
election. The second alteration act penalty for failure to
reversed this provision and restores provide accurate audited
26
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The Constitution, Vol. 15, Nos. 3 & 4, SeptemberfDecember 2015
financial record as outlined. the leadership of INEC. These
These provide the legal include the compiling of a credible
basis for prosecution. voting register and the introduction
There are also changes in of permanent voter cards with
the penalty on electoral biometric data. Others are the
offences. internal review of administrative,
• The requirement that a financial, and operational
tribunal should declare a processes, strategic plan for INEC,
written judgement on reconstitution and strengthening of
election petition 180 days electoral institute as an in- house
from petition filling date training and research and
and any appeal within 90 development institution on
days. The court may in all electoral governance and political
appeals from election behaviour.These reforms reduced
tribunal adopt the practice electoral fraud and increased the
of first giving its decision acceptability of the final outcome.
and reserving the reasons
for the decision to a later Additional changes were envisaged
date. in the stalled Fourth Constitutional
• A tribunal cannot declare Alteration Bill 2015 that President
any person a winner if such Jonathan refused to sign. The
a person has not fully Independent National Electoral
participated in all stages of Commission (2013) had submitted
the said election, provide over 19 proposals to the National
guidelines for hearing of Assembly for the amendment of the
petitions. 1999 Constitution and the
Electoral Act 2010.28 In these
These changeshave gone a longway proposals it sought powers to
in impacting on the peaceful and disqualify candidates when they
fairly credible outcome of the 2011 evidently do not satisfy the
elections and the 2015 elections. requirements for the office they
Apart from clarifying some of the are vying for. It also sought powers
rules of the electoral games they to be able to disqualify parties with
provided the environment for flawed and undemocratic primaries
innovative technical and from fielding candidates for any
organisational reforms speared by election. The latter power is a
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UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15 Nos. 3 & 4, SeptemberlDecember 2015
corollary to the request that management and control of the
section 87(9) be amended to make electoral process. It argues that this
it mandatory for all candidates to independence would enable the
emerge through a free and fair Commission to determine the
political process. procedure for the conduct of
election in such a way that no
The Commission also sought the political party would have undue
power, in consultation with advantage over others.
political parties, to determine the
criteria by which political parties Other items in the proposals by
get on the ballot, a process it states INEC included the establishment of
is consistent with best practices in an Electoral Offences
many parts of the world. Comparing Commission (EOC) and Electoral
itself to such regulatory agencies OffencesTribunal (EaT). The EOC
as the Central Bank of Nigeria and would be responsible for
the National Agency for Food Drug investigation and prosecution of
Administration and Control breaches of electoral laws. The
(NAFDAC), the commission is EaT would help guarantee timely
seeking an amendment to section prosecution of electoral offenders.
31 of the Electoral Act. It recommended that Sections
Furthermore, it argued that 76(2) and 116(2) of the
although the clamour for the Constitution to be further amended
registration of more political to allow for only two periods in a
parties had continued to gain year within which it can conduct
momentum, it is practically elections to fill vacancies so as to
impossible for all registered engender certainty in the electoral
political parties in Nigeria to be on timetable. It requested that any
the ballot. person convicted of an electoral
offence (including registration
To guarantee its independence offences, campaign finances
beyond what it currently enjoys, it breaches and breach of political
asked that, like the National party finance provisions) should be
Population Commission, its disqualified for a period of 10years
independence should be from the date of conviction from
constitutionally guaranteed in all contesting any election or holding
its operations and in its any party position. Importantly too,
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UNIVERSITY OF IBADAN LIBRARY
The Constitution Vol. 15, Nos. 3 & 4, September/December 2015
it called for an amendment to the elections. The amendment
constitution so that interested strengthened the independence of
Nigerian citizens of voting age but the INEC and contributed largely to
resident abroad could participate Jega's ability to resist pressures
in the governance of their country that came with the 2015 elections.
by being allowed to register and It also facilitated the use of
vote at elections. innovative measures INEC
introduced to upgrade production
Conclusion of a permanent and incremental
voters' register, with biometrical
From the Second Republic till date, permanent voters' card, and the
Nigeria has demonstrated the subsequent use of card readers for
capacity to learn from experience the accreditation of voters during
in terms of electoral engineering. elections. These coupled with the
Institutional changes witnessed
included changes in the powers and adjusted voting procedure thatenabled the announcement of
responsibilities of the EMB, the results from the polling units to the
formation and regulation of final constituency enhanced
political parties, the electoral transparency of the voting and vote
formula, ballot structure and count procedures and the
political finance. The credibility of the election results.
consequences have been uneven.
The experience in the Third and As we have noted in the literature
Fourth Republic show that such concerning institutional change, the
changes take time before they
become very consequential. process of change in Nigeria hasbeen slow and incremental. The
Previous changes are strengthened changes in the electoral institutions
by subsequent ones. In the Fourth have been geared more to reflect
Republic, significant changes had descriptive representation and
been made before the 2015 functionally representative and less
elections to strengthen changes geographically representative, they
that came with the previous have also been geared towards
electoral acts and in particular the promoting the integrity of elections
constitutional amendments and the as part of the effort to achieve
amendments to the 2010 Electoral democratic stability.The process of
Act that preceded the 2011 electoral reform and institutional
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UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15 Nos. 3 & 4 SeptemberlDecember 2015
change have been slowed by these Uwais Electoral Reform Committee,
competing factors of democratic whose recommendationsremain the
values and self-interest as benchmark againstwhich the limited
politicians seek to win elections in institutional change effected so far
Nigeria's intense contests. is often measured.
The Nigerian experience has also The success of the 2011 and the
exhibited elements of path 2015 elections show the relative
dependency, with previous changes positive effect of the changes that
providing the framework for have been made in the electoral
subsequent changes. Significant institutions since 1999 and beyond.
changes have occurred at critical Beyond these changes that are
junctures. The first critical considered far reaching, there are
juncture was constituted by the some issues that have not been
failures of the first republic and the addressed at all because no
general re-engineering of situation have arisen to catalyse
institutions as part of the their use. For instance, the
programme of transition from Electoral Act 2010 requires that a
military to civil rule in 1979. The run-off election, if needed for the
changes were indeed very broad Presidency, must be conducted
covering state creation, model of within seven days. This is very
executive, electoral formula, challenging considering the
power-sharing and electoral logistical requirement for a
management. The second critical national election that the
juncture was the failed and violence presidential election is. The time
ridden 1983 election and the frame is too short to be realistic.
subsequent coup. The findings of
the Babalakin Committee of 1984 There is also no statutory
is critical in this regard. Its impact provisions for the inter-party
was to be seen in the organisation interactions to promote
of the NEC in the Third Republic. collaboration and interaction to
The third juncture, which occurred advance peace among political
in the Fourth Republic is the parties. The Inter- Party Advisory
muddled 2007 elections, which Council of Nigeria needs to be
provokedthe settingup of the Justice strengthened to make it more
30
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15 Nos. 3 & 4, SeptemberlDecember 2015
effective, especially as a need to recognize the voter as a
framework of conflict resolution key stakeholder in the outcome of
andmanagement, and for setting and election. The right to challenge the
applyingstandards.A common code outcome of election should be
of electoral conduct was agreed by extended to the voter in an election.
political parties in 2013. This will underscore the fact that
elections are public interest issue.
INEC has had challenges It will also meet international
monitoring political parties, their standard of access of the voter to
finances and other issues. The Head participate in dealing with disputed
of the Legal Unit ofINEC has also elections.
complained that organization is
perpetually bogged' down with In general, Nigerian 2015 election
litigation arising from electoral represents the outcome of the
offences, and often had to hire series of institutional changes that
private lawyers to help. He also have taken place over a long period.
added that its staff suffer from The core values that have driven the
prosecutorial capacity deficit. Of Nigerian process include the need
the more than a thousand persons for conciliation and descriptive
arrested for· offences in the 2011 representation, finance and
elections, only about two hundred capacity of administration, and
have been prosecuted." Thus, the promotion of internal party
recommendation of the Uwais democracy and strengthening of
committee on the establishment of participation. Nigeria has been
electoral offences commission and sluggish in terms of values of party
Party registration needs to be proportionality and accountability.
revisited. However, there are several issues
that require attention to further
Another important set of electoral strengthen institutions and
reforms to consider is how voters' processes. For instance, the
engagement can be enhanced. amendmentshavenottouchedthecore
Voters' turnout has been very low. of the issues relating to the winner-
The extent to which the use of card takes-all electoral system, the
readers has disenfranchised many independenceand professionalization
is yet to be ascertained. There is a ofINEC isyettobetakento its logical
31
UNIVERSITY OF IBADAN LIBRARY
The Constitution Vol. 15 Nos. 3 & 4, September/December 2015
conclusion. There are still a lot that areas identified. However, the
can be done by means of debates and the process of
institutional change to improve on institutional change will continue.
elections in Nigeria in the core
32
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4, September/December 2015
Notes and References
1. Federal Republic of Nigeria, for Decision Makers,
Report of the Political Journal of Democracy, Vol.
Bureau, Government Printer, 14, No.4, 2003, p. 116.
Lagos, 1987.
7. Ibid.
2. Ake, Claude, Democracy
and Development in 8. Renolds, Andrew and Reilly,
Nigeria, The Brookings Ben, The International IDEA
Institution. Washington D.C., Handbook of Electoral
1996. System Design, International
Institute for Democracy and
3. North, Douglas C., Electoral Assistance.,
Institutions, Institutional Stockhom, 1997, p. 116.
Change and Economic
Performance, Cambridge 9. Ibid.
University Press, Cambridge,
1990. 10. Horowitz, "Electoral
Systems ... ", pp. 116-120.
4. Mozaffar, S., "Patterns of
ElectoralGovernanceinAfrica's 11. Duverger, Maurice, Political
Emerging Democracies Parties. Wiley, New York,
InternationalPolitical Science 1954.
Review,Vol.33,No 1,2002, p.
87. 12. Norris, P., Electoral
5. Engineering: Voting RulesMozaffar, S. and Schedler,A., and Political Behaviour.
"The Comparative Study of Cambridge: Cambridge
Electoral Governance - University Press, Cambridge,
Introduction, " International 2004; P. Norris, P., Driving
Political Science Review, Democracy: Do Power-
Vol. 23, No.1, 2002, p. 8. sharing Institutions Work?
6. Cambridge University Press,Horowitz, Donald L., Cambridge, 2008.
Electoral Systems: A Primer
33
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. IS, Nos. 3 & 4 SeptemberlDecember 20lS
13. Renolds and Reilly, "The 18. Whitaker, C. S., "The Second
InternationaIlDEAHandbookof Beginnings: The New
Electoral System Design"; Political Framework In
Norris, "Electoral Nigeria" in Sklar, Richard L.
Engineering... " and Whitaker C. S., eds.,
African Politics and
14. Bowler, S., Todd Donovan, Problems of in
Todd, Karp, J. A., "Why Development, Lynne
Politicians Like Electoral Rienner Publishers, Boulder
Institutions: Self Interest, and London, 1991, p. 243.
Values, or Ideology," The
Journal of Politics. Vol. 68, 19. Dudley, B., An Introduction
No.2, 2006, pp. 434-446. to Nigerian Government
and Politics, Macmillan
15. Norris, P., Coma, Ferran M. Press Ltd., Ibadan, 1982;
and Gromping, Max, The Year Erne Awa, Erne, "Electoral
in Elections 2014: The Administration in the Early
World's Flawed and Failed Transition" in Diamond,
Contests, Electoral Integrity Larry, Kirk-Greene, A. and
Project, Sydney, 2015. Oyediran, Oyeleye, eds.,
Transition without End:
Nigerian Politics and civil
16. Details of how these played Society under the
out could be found in Dudley, Babangida. Ibadan: Vantage
Instability and Political Publishers, Ibadan, 1997, pp.
Order: Politics and Crisis in 126-142.
Nigeria, Ibadan University
Press, Ibadan, 1973 20. Oyeleye Oyediran, Oyeleye,
(especially chapter 3). "The 1983 Elections," in
Ekeh, Peter, Dele-Cole,
17. Federal Republic of Nigeria, Patrick and Olusanya,
The Constitution of the Gabriel 0., eds., Nigeria
Federal Republic of since Independence: The
Nigeria, Lagos: Government First 25 Years Volume V.
Printer, Lagos, 1979. Politics and Constitutions.
34
UNIVERSITY OF IBADAN LIBRARY
The Constitution, Vol. 15, Nos. 3 & 4 September/December 2015
Ibadan: Heinemann, Ibadan, An Analysis of Content,
1989. Context and Intent, in
Amuwo, K., Agbaje, A.
21. Nwosu, H. N., Laying the Suberu, R., and Herault, G.,
Foundation for Nigeria s eds., Federalism and
Democracy: My Account of Political Restructuring in
June 12, 1993 Presidential Nigeria, Spectrum Books,
Election and .jts Annulment, Ibadan, 1998, pp. 121-136
Macmillan, Lagos, 2008.
26. Three Electoral Acts have
22. Badejo, Babafemi, " Party been utili sed since 1999.
Formation," in, Diamond, Electoral Act 2001 drew a lot
Larry,A. Kirk-Greene, A. and of controversies and was
Oyediran, Oyeleye, eds., repealed by Electoral Act
Transition without End: 2002 before the conduct of
Nigerian Politics and Civil the 2003 elections. Thus,
Society under Babangida, Electoral Act 2002, Electoral
Vantage Publishers, Ibadan, Act 2006 and Electoral Act
1997, pp. 177-199. 2010 (as amended) and the
Constitution of the Federal
23. Awa,"ElectoralAdministration . Repuhlicof Nigeria (as
in the Early Transition." amended) 1999 provided the
main rules of the electoral
24. -Suberu, R. T. "Crisis and game. In addition, 'IN-EC.
Collapse: June-November usually provides guidelines
1993, Diamond, Larry, A. that detail the procedures for
Kirk-Greene, A. and voter registration,
Oyediran, Oyeleye, eds., accreditation, voting,
Transition Without End: collation and announcement
Nigerian Politics and Civil of results. It also provides.
Society Under Babangida, guidelines for the roles of all
Vantage Publishers, Ibadan, stakeholders such as parties
pp. 307-369. and their agents, the security
services electoral officials at
25. See Agbaje, A., "The the polling units and collation
Ideology of Power Sharing: centres.
35
UNIVERSITY OF IBADAN LIBRARY
The Constitution Vol. 15. Nos. 3 & 4. SeptemberlDecember 2015
27. See Report of the Electoral 29. See Otuchikere, Chika, 80%
Reform Committee, Vol. I , of 2011 Electoral Offenders
Main Report, 2008, p. 1. Not Prosecuted - INEC,
Leadership January 10,
28. See INEC Proposed 2015. Available at http://
amendment to the Electoral leadership.ng/news/402225/
Legal Framework submitted 80-2011-electoral-
to the National Assembly, offenders-prosecuteq-inec
2013. (Accessed December 18,
2015) .
• • ",.". , ••• ~_ ~ ,-\.0- ••••• _ ,
-. ; .1.1 •••
36
UNIVERSITY OF IBADAN LIBRARY