New Telegraph

Electoral Bill: Lawyers in defence of direct primaries

AKEEM NAFIU writes that lawyers have thrown their weights behind the quest for nomination of party candidates via direct primaries as envisaged by the Electoral Act (Amendment) Bill 2021. To the men of the wig and gown, contrary to the views expressed by President Buhari in his letter to the National Assembly explaining reasons behind his rejection of the Electoral Act Amendment Bill, direct primaries neither violate the spirit of democracy nor infringe on citizens’ rights to participate in government

The refusal of President Muhammadu Buhari to append his signature to the Electoral Act (Amendment) Bill 2021 passed by both chambers of the National Assembly has drawn the ire of some senior lawyers. The lawyers while expressing their displeasure at the president’s action accused him of preferring to retain all the manifest flaws bedeviling Nigeria’s electoral system, from which himself and his ruling party are benefiting to the detriment of the country’s democratic advancement.

The senior lawyers were alarmed at the reasons adduced by the president for his rejection of the Bill, particularly as it concerns the adoption of direct primaries by political parties in producing candidates for elective positions. The National Assembly had on November 19, 2021, transmitted the Bill to the president for assent.

In the legislation, recommendations were made on direct primaries for political parties and electronic transmission of election results. However, President Buhari had last week Tuesday revealed his intention to reject the Bill through a communication to both Chambers of the National Assembly.

In the letter titled; “Withholding of assent to Electoral Act Amendment Bill 2021”, the president was opposed to the recommendation for adoption of direct primaries by political parties citing concerns on rights violation as well as huge costs involved.

A copy of the letter sent to the Speaker of the House of Representatives, Femi Gbajabiamila, reads: “Further to the letter dated 18th November, 2021 forwarded for Presidential assent, the Electoral Act (Amendment) Bill 2021 as passed by the National Assembly, I have received informed advice from relevant Ministries, Departments and Agencies of the Government, and have also carefully reviewed the Bill in light of the current realities prevalent in the Federal Repulic of Nigeria in the circumstances arising from the review.

“Rt. Honourable Speaker may wish to note that the nomination of party candidates solely via direct primaries as envisaged by the Electoral Act (Amendment) Bill 2021 has serious adverse legal, financial, economic and security consequences which cannot be accommodated at the moment considering our nation’s peculiarities. It also has implications on the rights of citizens to participate in the government as constitutionally ensured.

“The Electoral Act (Amendment) Bill 2021 seeks to amend certain provisions of the extant Electoral Act 2010. Part of the objective of the Bill is the amendment of the present Section 87 of the Electoral Act, 2010 to delete the provision for the conduct of indirect primaries in the nomination of party candidates such that party candidates can henceforth only emerge through direct primaries.

“Arising from the review, Mr. Speaker may wish to particularly note the pertinent issues implicated as follows to wit: a. The conduct of direct primaries across the 8,809 wards across the length and breadth of the country will lead to a significant spike in the cost of conducting primary elections by parties as well as increase in the cost of monitoring such elections by INEC who has to deploy monitors across these wards each time a party is to conduct direct primaries for the presidential, gubernatorial and legislative posts.

In addition to these costs with the already huge cost of conducting general election will inevitably lead to huge financial burden on both political parties, INEC and the economy in general at a time of dwindling revenues. b. The indirect consequences of the issues of high cost and monetization are that it will raise financial crimes and constitute further strain on the economy.

It will also stifle smaller parties without the enormous resources required to mobilise all party members for the primaries. This is not healthy for the sustenance of multiparty democracy in Nigeria. c. In addition to increased costs identified above, conducting and monitoring primary elections across 8,809 wards will pose huge security challenges as the security agencies will also be overstretched, direct primaries will be open to participation from all and sundry and such large turn-out without effective security coordination will also engender intimidation and disruptions, thereby raising credibility issues for the outcomes of such elections. d.

The amendment as proposed is a violation of the underlying spirit of democracy which is characterised by freedom of choices. Political party membership is a voluntary exercise of the constitutional right to freedom of association. Several millions of Nigerians are not card carrying members of any political party.

Thus, the emphasis should be on enabling qualified Nigerians to vote for the candidate of their choice during general elections as a means of participation in governance and furtherance of the concept of universal adult suffrage or universal franchise. e.

The proposed amendment may also give rise to plethora of Iitigations based on diverse grounds and issues of law including but not limited to the fact that the proposed amendment cannot work in retrospect given that the existing Constitution of the parties already registered with the Independent National Electoral Commission (INEC) permits direct, indirect and consensus primaries.

This real possibility, will, without doubt, truncate the electoral program of the nation as another electoral exercise is imminent towards a change of Government in 2023. f. Nigeria is at the moment still grappling with the issues of monetization of the political process and vote buying at both party and general elections.

The direct implication of institutionalizing only direct primaries is the aggravation of over-monetization of the process as there will be much more people a contestant needs to reach out to, thereby further fuelling corruption and abuse of office by incumbent contestants who may resort to public resources to satisfy the increased demands and logistics of winning party primaries. g. Direct primaries are also subject or susceptible to manipulation or malpractices as most parties cannot boast of reliable and verified membership register or valid means of identification which, therefore, means non-members can be recruited to vote by wealthy contestants to influence the outcome. Rival parties can also conspire and mobilise people to vote against a good or popular candidate in a party during its primaries just to pave way for their own candidates.

Whereas where voting is done by accredited delegates during indirect primaries, the above irregularities are not possible. “The major conclusions arrived at upon the review are highlighted hereunder, to wit: a. Aside its serious adverse legal, financial, economic and security consequences, the limitation or restriction of the nomination procedures available to political parties and their members constitutes an affront to the right to freedom of association. It is thus undemocratic to restrict the procedure or means of nomination of candidates by political parties, as it also amounts to undue interference in the affairs of political partes.

b. Indirect primaries or collegiate elections are part of internationally accepted electoral practices. Moreso, direct primaries are not free from manipulations and do not particularly guarantee the emergence of the will of the people especially in circumstances like ours where it is near impossible to sustain a workable implementation framework or structure thereof. “In the premise of the above, I here-by signify to the National Assembly that I am constrained to withhold assent to the Electoral Act (Amendment) Bill 2021 in line with the provisions of Section 58(1) & (4) of the 1999 Constitution (as amended). It is my considered position that the political parties should be allowed to freely exercise right of choice in deciding which of the direct or indirect to adopt in their primary elections as their respective realities may permit. Please accept, Rt Hon Speaker, the assurance of my highest consideration and esteem”.

Senate reacts

In the aftermath of President Buhari’s rejection of the Electoral Act (Amendment) Bill, both Chambers of the National Assembly are poised for a meeting to decide on the next line of action. Senate President, Ahmed Lawan, made this disclosure while addressing his colleagues at plenary last week Wednesday. He said the decision to consult with the Green Chambers was in line with constitutional provisions which mandates both Chambers to liase on such issue. He added that senators will also be consulting with their constituents on the way forward while on holiday. This he said was due to the prominent roles the constituents play in all laws made by the National Assembly. Lawan said: “The Senate, in a closed session, discussed the way forward on how the Senate will respond to the letter from Mr president on the Electoral Amendment Bill. The Senate consequently resolved to consult with the House of Representatives in January when both chambers will be in session. “Presently, the House of Reps has gone on recess and we all know the constitutional provision is for the Senate and the House to jointly take the appropriate action”. In the meantime, over 73 senators were said to have indicated interests to override the president’s veto of the Electoral Act Amendment Bill. Senator George Sekibo (PDP, Rivers) made this disclosure in a chat with newsmen after plenary last week’s Tuesday. The lawmaker indicated that signatures which cut across party lines have been collected from senators who are willing to override the president’s veto. “Why will Mr. president say he doesn’t want direct primaries? The country is not his limited liability company. This is a country and this is a chamber. So, the Senate ought to override him. “By the law, we have the power to override him, in Section 58(4) and (5) of the Constitution. So, if the Constitution give us the power to do so, we will use our powers to do it. Yes, we are compiling signatures which cut across party lines. We have gotten more than 73 persons prepared to override the veto”, Sekibo said.

Lawyers speak

Some senior lawyers have taken a swipe at President Muhammadu Buhari over his rejection of the Electoral Act (Amendment) Bill. The lawyers while speaking on the issue at the weekend said the president’s action was against national interest. Speaking on the issue, a rights activist and Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome, said the National Assembly should sum up courage to override the president’s veto.
Ozekhome said: “I do not share President Muhammadu Buhari’s sentiments at all.

Direct primaries are constitutional and more democratic than indirect primaries. They give a level playing ground and make party members own the party, not just a favoured few with deep pockets and influence. “Indirect primaries are more subject to abuse and dictatorial control by top party wigs. They throw up delegates through unwholesome means and these delegates pick the eventual candidates from the pool of aspirants. In 2016, Hilary Clinton defeated Donald Trump by 48.2 percent to Trump’s 46.1 percent in the popular vote. But, due to the now much criticized Electoral College system which is like indirect elections, Trump won the American presidential elections because he garnered 305 Electoral college votes as against Hillary’s 227. “That is the type of mischief the amended Electoral Bill sought to cure.

Having withheld his assent (veto) as he is entitled to do (even if unpatriotically) under Section 58(4) of the Constitution, the National Assembly should be man enough with strong legislative balls to override President Buhari’s veto. They can do this under Sections 4 and 58(5) of the Constitution, and the heavens will not fall” In his own submissions, Mr. Ebun- Olu Adegboruwa (SAN), said the reasons adduced by the president for withholding assent to the Bill was not supported by the Constitution which created political parties.

“Under and by virtue of Paragraph 15 (b) of Part 1 to the Second Schedule of the 1999 Constitution as amended, INEC shall register political parties in accordance with the provisions of the Constitution and an Act of the National Assembly.

“By virtue of Section 222 (a) of the Constitution, no association, by whatever name called, shall function as a political party, unless a copy of its constitution is registered with INEC. By virtue of Section 223 (1) (a) of the Constitution, the constitution and rules of a political party shall provide for period election on a democratic basis of its principal officers. “By virtue of Section 224 of the Constitution, the programme as well as the aims and objectives of a political party shall conform with the provisions of Chapter 2 of the Constitution.

By virtue of Section 40 of the Constitution, INEC is conferred with power to register or refuse registration of political parties. “From all the above, the Constitution, the Electoral Act and indeed INEC, are to regulate activities of all political parties, including their various constitutions. That being the case, the reason adduced by the president, for withholding his assent to the Electoral Act (Amendment) Bill, that the said Bill violates the constitution of political parties, is not supported by the Constitution which created the political parties in the first place. “The registration of political parties is regulated by INEC in accordance with the Constitution and the Electoral Act.

Thus, the constitutions of all political parties are to conform with these laws and not the other way round. It is the political parties that will amend their constitutions to conform with the provisions of the Electoral Act. Since the president assumed office, he has withheld his assent to virtually all amendments of the Electoral Act, even though he promised electoral reforms during his campaigns. What this means is that the president prefers to retain all the manifest flaws bedeviling our electoral system, from which himself and his ruling party are benefiting to the detriment of our democratic advancement”, Adegboruwa said.

Another silk, Mr. Hakeem Afolabi, noted that the National Assembly is empowered to make law prescribing direct primary as a means of selecting candidates for political parties. Afolabi said: “I think a good starting point is to say that no provision of the Constitution forbids direct primary. For that reason, it is not unconstitutional. The parliament is vested with powers to make laws to regulate conduct of elections. To that extent, it is within the competence of the National Assembly to make law prescribing direct primary as a means of selecting candidates for political parties.

“Adopting direct primary at this point in time is not a subversion of the spirit of democracy. Rather, since society is dynamic, direct primary is a mechanism to check abuse in the system of political parties. It will rather strengthen the system and give power back to the people”. Reacting, an Abuja-based legal practitioner, Tosin Ojaomo, said it is most unfortunate that the president will withhold assent to a law that would have positively transformed electoral system of Nigeria.

“It is indisputable that one of the problems plaguing political parties nomination of candidates in Nigeria is the issue of candidates imposition by some political parties. The problem is so fundamental that no single primary election is conducted in Nigeria without this issue, the argument of the president that direct primaries violates the constitution is clearly misconceived. “It rather complies with the pro-vision of the Constitution, we must not forget that the issue of freedom of association raised as a constitutional impediment to direct primaries even give more credence to it, political parties in Nigeria have continued to hide under indirect primaries to impose candidates on party faithfuls thereby denying them the opportunity to freely choose a representative for the party at the elections.

“The president has once again been misled into doing the bidding of a political cabal rather than the interest of Nigerian people which he was sworn by the 1999 Constitution to uphold. The president has once again buried electoral reforms in Nigeria by withholding assent to the amended Electoral Bill. The National Assembly should take action on this matter to safeguard the electoral integrity of primary elections by political parties in Nigeria by ensuring that direct primaries is affirmed in our electoral act”, Ojaomo said. Mr. Destiny Takon also threw his weight behind direct primary saying it’s a price the nation must be ready to pay for good and truly representative governance.

Takon said: “The right question to have asked would have been whether indirect primaries which Gen Buhari posits, is constitutional and in conformity with the spirit of democracy? “Direct primaries is the process by which party candidates emerge vide the direct votes of card carrying members of political parties in a primary election scheduled to produce who stands election as a candidate of the party.

“The indirect primaries on the other hand is the process where candidates emerge from an electoral college or so-called delegates, who are persons and party members chosen through hand-picking or representatives of card carrying members. If we adopt Abraham Lincoln’s definition of democracy, as government of the people by the people and for the people, one would indeed be put on inquiry as to the true intentions of Gen Buhari, in adducing ‘violation of the spirit of democracy’, as the reason for refusing assent to the passed Bill by the National Assembly.

“Gen Buhari’s decision becomes more suspect when one considers that the bane of our democracy, is principally the influence of godfatherism, culminating in institutionalized mediocrity, ethnic and religious bigotry, incompetence, bad governance, corruption and absence of economic, scientific and technological growth of the country. “Direct primaries, even though said to be more expensive than the indirect ones, ensures the participation of card carrying members of the parties directly from the grassroot and whittles down the influence of political godfathers.

“It has the potency to produce candidates who are actually known, trusted and desired by party members, as candidates. Since elections are contested by candidates, who eventually emerge as elected public officers, it follows that the direct primaries process, would ensure that good, competent and desirable persons end up as elected public officers into positions in government. So adopting the more expensive direct primaries, should not be a price too high to pay for good and truly representative governance”. *Additional report by Tunde Oyesina

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