In less than 12 years of our return to ‘democratic’ governance, Nigeria has had more than four electoral laws passed. The frequency of this ‘reform’ at each election turn and the geometrical decline in our election fortunes suggests a fundamental lacuna and a philosophical deficiency in our orientation especially as it relates to democratic governance. What is the basic philosophy behind our electoral reforms? Laws are made to address prevailing social challenge or create a progressive social environment. By extension, laws should add a positive value to the life of the community for which it is made. It is then worrisome when our constant reform of electoral laws in Nigeria continue to generate disappointing results or in the present case constitutional and logistical crisis. This defeats the purpose of law making and suggests that we lack understanding of what the law is meant to be.
The answer to non-productive laws is not more laws but rather a holistic interrogation of the existing laws and the environment for which it is meant to operate to identify deficiency in law on one hand and prevailing societal and attitudinal inadequacies that stifle the application of the law on the other hand. More laws without alone can only bring a disappointing result and loss of faith in the system.
Our laws especially with respect to the electoral system seem to be fraught with 3 major deficiencies; they are not comprehensive enough to address the fundamental problems, their content are often coloured with selfish interest of the stakeholders who bring it into being; and finally there are often a yawning disconnect between the law and the prevailing realities. In no particular order, some illustrative examples will suffice.
The National Assembly in amending the 1999 constitution rejected the recommendation of Uwais report to the effect that there would be multi sector participation in the appointment of the chairman of INEC (National Judicial Council, the Presidency and the National Assembly). Clearly given the history of manipulation of INEC by the Executive in the past, the provision was aimed at infusing credibility into the nomination process and ensuring the independence of such candidate. This provision was rejected. So also was the provision of shifting the onus of proof in election petition process to INEC and the returned candidate aimed at whittling down the attractive incentive for fraud which the old system provided.
These where fundamental provisions that would have addressed conclusively challenges of our very peculiar environment and the obvious gaps in the law. These provisions would have changed the face of elections in Nigeria for the better. However, the National Assembly decided to play safe and not rock the boat (the status quo) violently. Interestingly the National Assembly that justified their stand on appointment of INEC Chair on separation of powers did not see any role for the executive in the passing into law of a new constitution.
In section 132 of the amended constitution, it provides that an election to the said office (President) shall be held on a date not earlier than one hundred and fifty days and not later than one hundred and twenty days before the expiration of the term of office of the last holder of that office. As at the time of passing this law, proper consultation and risk analysis would have revealed the logistical nightmare this provision will visit on INEC especially given the turnover of principal officers and exiting structural inadequacies (absence of voters’ register).
The good intentions of the law did not sync with reality on ground. Of course such a reform will not work. Now we are beating a fast retreat to bring out new constitutional amendments in three weeks. As part of the new amendment process, the Presidency has sent a bill to the National Assembly.
Two provisions of that proposed amendment to the Electoral Act are quite striking. One is found in section 87(8) where the provision barring political appointees to be delegates in party primaries is deleted. What value will this amendment add to the political process? Obviously this law is guided by the selfish interest of the presidency to have access to more delegates assuming all his appointees will have voting right in party primaries.
Again in section 87(7) the presidency tries to also water down the provisions of the National Assembly regarding the election of delegates for indirect nomination exercise within political parties. In both cases the Presidency is seeking a way to have political appointees to be part of the voting in party primaries. It is not just the Presidency that is guilty of this selfishness. In providing for the sequence of elections, the National Assembly in section 25 of the Electoral Act provides that election to the House of Representative and Senate should hold before all the others. What value does this provision add to the system except maybe to protect the interest of the members of the National Assembly?
The list is endless. In 2007 we introduced electronic voting without any structure on ground to make that feasible. All our reforms in 2007 gave us the worst elections ever. In 2003, political parties where able to substitute candidate even after they have been elected into office. Without taking away our effort to get things right, it seems that with every reform of the law we embark on, we seem to create more challenges. Something must be wrong.
Laws are sometimes guided by selfish and sectional interests even in advanced democracies but never to the detriment of the overall aim of the law. If you leave a leeway in a law to enable short-circuiting of the law, what is the point in passing the law? For our reform to create change, we must address the tripartite pitfall of our law making process viz non-comprehensiveness, selfish interest and impracticability. Law making process must be inclusive and consultative. Proper analysis must be made to match content and context.
If we do not do this, we will constantly be caught in the fire brigade mood of last minute corrections. Law must be guided by the greater good. The question that legislators and policy makers should be asking is: what is the best for the country? It is only within the countries’ ‘best’ that we can begin to locate institutional and sectional interests. Separation of power is a means to an end and not an end in itself; as such some level of fluidity and overlap must be accommodated to ensure a comprehensive and progressive legislation.
It is rather disconcerting that we put so much effort and resources into reforming our electoral system without a concomitant change in outcome. The law is a tool of social engineering and must be utilized to change conduct and orientation and not just the flowery rhetoric of the law. As much as our effort in reforming the law is commended, our inability to create change must be confronted. This is a role not just for policy makers but for civil society as well.