Nigeria: Exclusive - CSOs Identify Drafting Errors in Electoral Bill

By Queenesther Iroanusi

President Muhammadu Buhari had declined assent to the bill on 21 December, citing insecurity and high cost of conducting direct primaries as reasons.

There are at least 10 drafting errors contained in the Electoral Act Amendment Bill recently rejected by President Muhammadu Buhari.

These inaccuracies range from grammatical errors to cross-referencing gaps.

The errors were identified by a coalition of eight civic groups comprising the Premium Times Centre for Investigative Journalism (PTCIJ), Yiaga Africa, International Press Centre (IPC) and Centre for Citizens with Disability (CCD).

Others are the Albino Foundation, CLEEN Foundation, Institute for Media and Society (IMS) and Nigerian Women Trust Fund (NWTF).

Their discoveries were contained in a memo dated 29 December and addressed to the Senate President and the Speaker of the House of Representatives, notifying them of the errors.

Also copied are the Clerk to the National Assembly, the chairmen of the Senate and House Committees on INEC and the Director of Legal Services, National Assembly.

There are indications that the CSOs are yet to dispatch the memo to the addressees.

Mr Buhari had declined assent to the bill on December 21.

In a letter to both chambers of the National Assembly, he cited insecurity and high cost of conducting direct primaries as his reasons for declining assent to the legislation.

He also said it would infringe on the rights of Nigerians to participate in governance and democracy.

The president added that the bill will also stifle smaller parties without the enormous resources required to mobilise all party members for the primaries and it will pose huge security challenges as the security agencies will also be overstretched.

Although about 73 senators had indicated interest to override the president's veto of the bill, the Senate resolved to consult with the House of Representatives before making a decision.

Drafting errors

In the memo obtained by PREMIUM TIMES, a few errors were identified from different clauses of the bill.

The groups also made recommendations as to how corrections can be effected.

One of the identified clauses with an error is Section 50(2) which deals with conduct of poll by open secret ballot.

This section states that "Subject to Section 63 of this Act, voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the Commission."

The groups, however, noted that Section 63 was wrongly referenced in the subsection as there is no relationship between Section 50 and Section 63 of the bill.

Therefore, to reflect the correct cross-reference, they advised that Section 63 be replaced with Section 60 on counting of votes and forms.

Another error was identified in Section 64(7)and(8) which deals with endorsement on rejected ballot paper without official mark.

Section 64(7) states that "if the disputed result under subsection (3) were otherwise found not to be correct, the Collation Officer or Returning Officer shall re-collate and announce a new result using the information in subsection (3)(a-d)."

While Section 64(8) says "where the dispute under subsection (3) arose at the level of collation and the Returning Officer has satisfied the provision of subsection (3), the Returning Officer shall accordingly declare the winner of the election."

The reference to subsection(3) in the section, according to the CSOs, is incorrect as subsection (3) does not relate to disputed result. Rather it relates to statement of rejected ballots.

For proper cross-referencing, they said the reference to subsection (3) should be changed to subsection (6a-d) which relates to procedure for determining the correctness of a disputed election result.

In the memo, the groups urged the National Assembly to address these errors and gaps before re-submitting the bill for presidential assent to eliminate any form of ambiguity or legal complications in the application of the bill when it is enacted.

The president had in August 2018 premised his decision of declining assent to the 2018 Electoral (Amendment) Bill on certain drafting errors and cross-referencing gaps in the Bill.

The groups said it is therefore imperative for the National Assembly to ensure due diligence before transference of the bill back to the president for assent to prevent it from suffering the same fate.

They also urged the lawmakers to quickly conclude the process and re-transmit the bill 2021 to the president for assent within 30 days from 21st December 2021.

"Any further delay in concluding the process of enacting the Electoral Bill 2021 will directly impact INEC's preparations for the 2023 General Election."

Below are the identified drafting and cross-referencing errors and gaps in the Electoral Bill 2021:

S/NSECTIONMARGINAL ANNOTATIONPROVISION IN THE BILLISSUERECOMMENDATION

1Section 24 (4)Conduct and postponement of election in emergency(4) Where the Commission appoints a substituted date in accordance with subsections (2), (3) and (4), there shall be no return for the election until polling has taken place in the area or areas affected.Subsection 1 of the section was omitted resulting to improper cross-referencingFor proper cross-referencing, (2), (3) and (4) should be deleted in the Subsection 4 and replaced with (1), (2) and (3)

2. Section 50 (2)Conduct of poll by open secret ballotSubject to Section 63 of this Act, voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the Commission.Section 63 was wrongly referenced in the subsection. There is no relationship between Section 50 and Section 63 of the billTo reflect the correct cross reference, Section 63 should be replaced with Section 60 on counting of votes and forms

3Section 64 (7) & (8)Endorsement on rejected ballot paper without official mark(7) If the disputed result under subsection (3) were otherwise found not to be correct, the Collation Officer or Returning Officer shall re-collate and announce a new result using the information in subsection (3) (a-d).The reference to subsection (3) in the section is incorrect. Subsection (3) does not relate to disputed result. It relates to statement of rejected ballotsFor proper cross-referencing, the reference to subsection (3) should be changed to subsection (6a-d) which relates to procedure for determining the correctness of a disputed election result.

(8) Where the dispute under subsection (3) arose at the level of collation and the Returning Officer has satisfied the provision of subsection (3), the Returning Officer shall accordingly declare the winner of the election.

4Section 91(2)Conduct at Political rallies, and processionsSection 91(2)- For the purpose of Subsection (2), a person shall be deemed to be acting in pursuance of a lawful duty if he is acting in his capacity as a police officer as a member of a security agency authorized to carry arms and is specifically posted to be present at that political rally or procession."The reference to subsection (2) is a cross referencing error. The number (2) in the provision should be deleted and replaced with (1)

5Section 107 (3)Death of Chairman before oath of officeSection 107(3)- Where the persons duly elected as Chairman and Vice-Chairman of an Area Council dies before taking and subscribing the oath of allegiance and oath of office during which period the Area Council has not been inaugurated, the Commission shall within 21 days conduct an election to fill vacancies".Grammatical errorThe alphabet "s" should be deleted from the word "dies" to read "die"

6Section 137 and 138S. 137 - Effect of non-participation in an electionIt shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.Although both sections have different marginal notations, Section 138 is a repetition of Section 137.Section 137 should be reviewed to align with the marginal note while Section 138 should be maintained because it reflects the intended content of the section.

S. 138 - Accelerated hearing of election petition

SUB HEAD

7Paragraphs 4 (5), (6), (7) and (8)Content of election petitionParagraph 4(5)- The election petition shall be accompanied by-Paragraphs 4 (5) and (7) are repetitive while Paragraphs 4 (6) and (8) contain similar provisionsParagraph 4(7) and 4(8) should be deleted

(a) A list of the witnesses that the petitioner intends to call in proof of the petition;

(b) Written statements on oath of the witnesses; and

Paragraph 4(6)- A Petition which fails to comply with subparagraph (5) shall not be accepted for filing by the Secretary.

Paragraph 4(7)- The election petition shall be accompanied by-

(a) A list of the witnesses that the petitioner intends to call in proof of the petition;

(b) Written statements on oath of the witnesses; and

Paragraph 4(8)- A Petition which fails to comply with subparagraph (5) shall not be accepted for filing by the Secretary.

8Paragraph 10(2)-Non-filling of Memorandum of AppearanceThe non-filling of a memorandum of appearance shall not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the registry within a reasonable time, but, in any case, not later than 21 days from the receipt of the election petition.There is a grammatical error in the spelling of filingThe word "filling" appearing in the sub-heading and sub-paragraph should be replaced with the word "filing" to address the grammatical error.

9Paragraph 14(2)Amendment of Election Petition and reply2. After the expiration of the time limited by-The provision contains a cross referencing error. The timeline provided for the filing of election petition is not contained in Section 134(1) of the bill. Section 134 provides grounds of petitionThe phrase "Section 134(1) of the Act" should be deleted and replaced with the phrase "Section 285 (5) of the Constitution and Section 132(7) of this Act" which provides the timeline for filing election petitions.

(a) Section 134 (1) of this Act for presenting the election petition, no amendment shall be made- ...

10Paragraph 16 (3)Petitioner's ReplyThe petitioner in proving his case shall have 14 days to do so and the respondent shall have 14 days to reply.Paragraph 16(3) is in conflict with the provision of paragraph 41(10) which outlines comprehensive timelines for petitioners to prove their case and respondents to file a response. To address this conflict, Paragraph 16 (3) should be deleted.

This article originally appeared on Premium Times

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Blessing MwangiDecember 30, 2021