FELIX NWANERI reports on the controversy trailing President Muhammadu Buhari’s decision to withhold his assent to the Electoral Act Amendment Bill 2021 passed by the National Assembly, which provides for electronic transmission of election results as well as mandates political parties to hold only direct primaries for aspirants seeking elective positions
President Muhammadu Buhari won the hearts of many recently, when in his presentation at the virtual summit hosted by the President of the United States, Joe Biden, assured the international community of the readiness of his administration to hand over power to winners of a free and fair general election in 2023.
Buhari, particularly, said that necessary mechanisms would be strengthened to ensure that Nigeria witnessed another peaceful transfer of power by May 29, 2023, when he is billed to serve out his second term. His words: “As we countdown to our next general elections in 2023, we remain committed to putting in place and strengthening all necessary mechanisms to ensure that Nigeria will not only record another peaceful transfer of power to an elected democratic government, but will also ensure that the elections are conducted in a free, fair and transparent manner.
“I am proud to state that Nigeria has had over two decades of uninterrupted democratic governance and has unequivocally remained committed to upholding the core values and principles of democracy. Since assuming office in 2015, we have been able to introduce mechanisms to ensure free, fair and credible elections. We have strengthened our key anticorruption agencies in collaboration with international partners and have undertaken several anti-corruption measures and initiatives.”
It was against the backdrop of President Buhari’s assurance that many Nigerians expressed that he would assent to the Electoral Act Amendment Bill 2021, passed by the National Assembly on November 8 and forwarded to his office on November 19. The passage followed the consideration of the report of the Conference Committee of the Senate and House of Representatives on the bill.
In line with customary legislative procedures, the two chambers had in September, set up Conference Committees to reconcile disparity in the versions of the bill as passed by the Senate and the House of Representatives. The Senate President, Ahmad Lawan, on October 13, constituted a sevenman conference committee to meet with their counterparts in the House to harmonize the differences in the Senate and House versions of the bill. The Senate Leader, Senator Yahaya Abdullahi (APC, Kebbi North), who chaired the Conference Committee in the Senate, presented the report on the harmonized version of the Electoral Act (Amendment) Bill, 2021.
The committee at its retreat considered and adopted 21 clauses in the bill, including the contentious clause 52; which makes provision for electronic transmission of election results. On the nomination of candidates by the political parties as contained in Clause 87, both houses endorsed the direct primary option for the various political parties.
The clause reads: “A political party seeking to nominate candidates for elections under this bill shall hold direct primaries for aspirants to all elective positions, which shall be monitored by the commission (INEC).” Direct primary election is a nomination process in which all members of a political party participate in the choice of its candidates to stand in the main election.
The Electoral Act mandates that all political parties hold primary elections to nominate their candidates for election and this process, before now, were in different forms – direct and indirect primaries as well as what some parties termed consensus arrangement. In an indirect primary election, party members elect delegates, who in turn elect the party’s candidates on their behalf, whereas in a direct primary election, registered members of the party just vote for who they want to be the flag-bearer of their party.
The consensus arrangement entails party leaders agreeing on who becomes the flag bearer without much input from members. While most of the parties have always adopted the indirect primary, the method is criticized for being easier to manipulate by party leaders. It is common knowledge that the delegates usually disregard the wishes of those they are supposed to represent.
On the other hand, the criticism against the direct primary is that it is expensive even as it is also vulnerable to manipulation. For example, an aspirant can get people to purchase party membership cards just to partake in the primaries. Worse, members of other parties can intentionally join a particular party in order to vote for a weaker aspirant at the primaries and maximise the chances of their own party winning the general election.
Objections over direct primaries
Perhaps, it was the flaws inherent with direct primaries that informed the objection expressed by both the ruling All Progressives Congress (APC) and the main opposition Peoples Democratic Party (PDP) over the decision by the National Assembly to mandate parties to adopt the mode in selecting candidates for elections.
While governors of the APC extraction declared that adopting direct primaries by political parties will overstretch the Independent National Electoral Commission (INEC), the PDP argued that nomination of candidates for elections is an internal issue that should be left for the parties to decide.
Kebbi State governor and chairman of the Progressives Governors Forum (PGF), Abubakar Bagudu, who spoke on behalf of his colleagues, maintained that political parties should be allowed to go options best suited for them in nominating their respective candidates for elections. His words: “We discussed the pros and cons.
There has been concern that political parties are voluntary organisations. We express the concern that political parties be allowed to choose from the options that they so desire. There is an Executive Order, signed by Mr. President against large gathering. These are issues we discussed and hope that the best be achieved for Nigeria.
We also noted that our ward congresses were results of direct primaries. The process involves multiple roles by INEC. If we have to involve INEC, their resources will be overstretched.” The PDP, which spoke through its then National Publicity Secretary, Kola Ologbondiyan, said: “Our party holds that it is the inalienable right of each political party, within the context of our constitutional democracy to decide its form of internal democratic practices, including the processes of nominating its candidates for elections at any level.”
Support for NASS
The arguments against the mode of primary, notwithstanding, the Speaker of the House of Representatives, Femi Gbajabiamila, said direct primaries will bring more accountability and adequate representation. According to him, with direct primaries, political office holders would not be restricted to pleasing a group of people selected as delegates.
He further noted that through direct primaries, political officers would work for the generality of their party members, and by extension, the electorate. Gbajabiamila said some members of the political class may not be comfortable with the arrangement, but that the majority of the masses are in support of direct primaries, which he said, will give them the opportunity of deciding who would represent them.
“Democracy is not just a general election. It starts from the primaries,” the speaker said. Backing the speaker’s positing, six civil society partners on electoral matters, not only commended the National Assembly for its passage of the harmonised Electoral Act bill, but urged the parties to accept and ensure the success of the direct primary mode retained in the bill as it provides young people and women the opportunity to contest on their own merit and popularity.
The CSOs stated this in a statement by Ariyo-Dare Atoye, Executive Director, Adopt A Goal for Development Initiative, and endorsed by Centre for Liberty, Raising New Voices, Youth and Students Advocates for Development Initiative (YSAD), NESSACTION, The Art and Civics Table and Speak Out Africa Initiative.
Buhari declines assent
The debate over the propriety or otherwise of direct primaries, which dominated the political space explained the apprehension that enveloped the nation throughout the period the Electoral Amendment Bill was with President Buhari for his assent. The bill was transmitted to him on November 19.
But to the chagrin of most Nigerians, the President declined his assent to bill which many have believed would have gone a long way to help reform the country’s electoral process and make elections more credible. The rejection was conveyed in letters read in the two chambers of the National Assembly last Tuesday by the Senate President, Ahmad Lawan and the Speaker of the House of Representatives, Femi Gbajabiamila. In a letter to the National Assembly, President Buhari noted that the mandatory use of direct primaries for all political parties in the country will be too expensive to execute.
He added that it will put a financial burden on Nigeria’s slim resources. He also said that conducting direct primary elections will be tasking, explaining that since such mode of election means a large turnout of voters, the move would stretch the security agencies.
The President also expressed fears that the proposed mandatory use of direct primaries will amount to violation of citizens’ rights as well as lead to the marginalisation of smaller political parties. He maintained that political parties should decide the best way to pick their candidates for elections, noting that his stance was based on a careful review and consultations.
The President’s letter, titled: “Withholding of Assent to Electoral Act Amendment Bill 2021,” read in part: “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 Republic of Nigeria in the circumstances.
“Arising from the review, Rt. Honourable Speaker may wish to note that the conduct of elections for 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: “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, which has to deploy monitors across these wards each time a party is to conduct direct primaries for the presidential, gubernatorial and legislative posts. The addition of these costs with the already huge cost of conducting general elections will inevitable lead to huge financial burden on both the political parties, INEC and the economy in general at a time of dwindling revenues.
“The indirect consequences of the issues of high cost and monetisation 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 multi-party democracy in Nigeria.
“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.
“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. “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. “Nigeria is at the moment still grappling with the issues of monetisation of the political process and vote buying at both party and general elections. The direct implication of institutionalising only direct primaries is the aggravation of over-monetisation 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.
“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.”
Mixed reactions trail President’s action
As expected, Buhari’s action has sparked a chain of reactions from stakeholders. While the President has the backing of the governors, interestingly from both the APC and PDP, members of the National Assembly appear to be ready for war though they have proceeded on Christmas recess. The legislators have the support of civil society groups.
Benue State governor, Samuel Ortom, who commended President Buhari for withholding assent to the bill, said direct primary is an expensive mode of selecting candidates. According to him, political parties should be allowed to decide on selecting the kind of primary election to deploy for selecting candidates.
His words: “I want to appreciate the national assembly for amending the electoral act to include direct transmission of results. I am particularly happy that the National Assembly listened to Nigerians and passed the electronic transmission of results. I wish in the same manner to appreciate the President for withholding assent on the direct primaries.
I appeal that he also listens to Nigerians on the economy and security of the country.” He also said the consensus mode was a preferred option, adding that “members of the party come together and agree on a candidate thereby saving money, time and it is devoid of rancor. It will engender transparency in the electoral system and also add value to the system.” Ekiti State governor and Chairman of Nigerian Governors’ Forum (NGF), Kayode Fayemi,on his part, said Buhari should be commended for the decision he took on the bill.
Fayemi, who fielded questions from State House correspondents on Tuesday after a meeting with Buhari at the presidential villa, however dismissed speculations that the President succumbed to pressure mounted on him by governors to reject the bill. He said, on the contrary, neither the President nor state governors is scared of direct primaries as the mode of selecting candidates for elections. He added that by declining assent, Buhari is standing on the side of the people. He said: “I don’t know what you mean by governors being happy.
At least as a governor who has gone through a series of elections, my election to the office during my first term was via a direct primary that took place in all the 177 wards in my state. And my election to my second term in office was via an indirect primary.
“So, I’ve tasted both. And I can tell you that it really doesn’t matter to any governor whether you have primaries via direct mode or indirect mode. Governors’ concern is that opportunities are given for an inclusive process. And I think that is what Mr. President’s letter has brought out. “Mr. President has not objected to direct primaries, neither has he endorsed indirect primaries. He has only said ‘be fair to all; let all options apply and what you decide should be determined by your own local and peculiar circumstances’ being mindful of questions of security, finances, and internal democracy.
“So, I think we all should commend the courage of Mr. President to stand with the people. And the President, you know, just like me, is not afraid of whatever mode you decide to use. When I chaired the primaries; the historic primaries that brought him in as a presidential candidate, it was an indirect primary. But in 2019, when he was coming back, he came back via direct primary. So, Mr. President has also tasted both. And I don’t think he’s somebody to be lectured about the pros and cons of either process.” The governor said what is important is to ensure that whatever mode of primary chosen provides a process that is as free a manner as possible.
“Direct primaries have their own challenges; indirect primaries have their own challenges. A consensus approach is also not without challenges, but options should be provided,” he added. It was, however, knocks for the President by Lagos lawyer, Femi Falana (SAN), who said the reason adduced for the rejection of the Electoral Amendment Bill is grossly misleading.
His words: “Section 87 of the current Electoral Act provides for either direct or indirect primaries. In fact, the APC used direct primary for the emergence of its presidential candidate in 2019. In other words, President Buhari is a beneficiary of direct primary. So, by rejecting the Bill on the ground that it provides for direct primary, the president decided to throw away the baby and the bath water.
Thus, the president rejected electronic voting which he had endorsed when he admitted that he is a beneficiary of the electronic accreditation of voters by the use of card readers. “With respect, direct primary is in consonance with section 223 of the Constitution, which has imposed a duty on political parties to elect their officers through democratic elections.
There is no provision in the Constitution for the imposition of candidates by money bags through indirect primaries. “INEC has submitted a bill of N305 billion for the entire 2023 general election. So, who conjured the figure of N500 billion for the primaries to give the impression that it is an expensive venture? In any case, since electronic voting had been adopted by the National Assembly, it was going to be used for both the primary and general election. As such, the cost would have been significantly reduced.
The fear of insecurity is a red herring in that political parties have continued to hold huge rallies, even in defiance of the COVID-19 restrictions imposed by the Federal Government. “Having rejected to assent to the Electoral Amendment Bill in 2018 and now, President Buhari has confirmed beyond any shadow of doubt that his administration will not allow INEC to conduct credible elections in 2023 and thereafter. That is going to be the tragic legacy of the President and the ruling party that were campaigning for electoral reforms before the 2015 general elections.
The Centre for Democracy and Development (CDD), which expressed shock over the President’s action, described his refusal as a lost opportunity. “Nigerians had all expected that President Buhari would write his name in gold as the president who bequeathed an improved electoral framework on the country,” Idayat Hassan, Director of CDD, said.
The Conference of Nigeria Political Parties (CNPP), on its part, said it is not surprised that the President rejected of the Electoral Act Amendment Bill. The group, in a statement signed by its Secretary General, Chief Willy Ezugwu, said: “What would have been shocking is Mr. President assenting to the bill.” Giving reasons for its submission, the CNPP said: “Nigerians should recall that President Buhari had excuses for refusing to sign the Electoral Act Amendment three times during the life of the 8th National Assembly led by Dr. Bukola Saraki.”
It added: “Even when the National Assembly removed all the clauses Mr. President stood against following his second rejection of the amendment to the Act, he still rejected the bill, claiming that the 2019 elections were too close for him to sign the bill into law.
So, it was not surprising that the President refused to sign the latest amendment to the Electoral Act. It follows his tradition. “First, it is obvious that President Buhari and his ruling APC are not interested in free and fair elections in Nigeria. They vehemently stood against electronic transmission of election results. And here is a president and a political party that are beneficiaries of reformed electoral process but fail all the time to deepen the same democratic process that brought them to power.”
Parliament blows hot and cold
In the National Assembly, it was humming and hawing among the leadership of both chambers. Initial reaction by most senators showed that members of the Red Chamber were poised to override the veto of the President. The senator representing Rivers East, George Sekibo (PDP), had raised a point of order immediately the President of the Senate president read Buhari’s letter. Sekibo asked the chamber to go behind closed doors to discuss the issue. After the closed session that lasted for 37 minutes, Sekibo told journalists that the Senate adjourned plenary to enable members to override the President. “By law, we have the power to override him.
That’s what Section 58 (4 & 5) said. We will use our powers to do it. And they are saying that people must be present at voting. Our rule gives us three methods of voting: voice vote, by signing the document (signature) and electronic voting. So, we can use anyone. We collected signatures in the chamber and it cuts across party lines,” he said. He later confirmed that they had compiled 73 signatures to veto the President. In the House of Representatives, it was less of threat as Gbajabiamila, in his end of the year speech, said the Green Chamber will decide on the way forward on the bill next year.
He noted that there would be no need to throw away the baby with the bathwater. “As it is, it falls on the parliament to decide the way forward. When we resume next year, we will decide it together. We must not throw a baby away with the bathwater,” the speaker said. However, in what seemed a detour, the Senate on Wednesday suspended move to override Buhari’s veto.
Lawan, who disclosed this, said that the upper chamber will consult with the House of Representatives on how to respond to the President’s decision to veto the Electoral Act 2010 (Amendment) Bill. The Senate president noted that the provisions of the 1999 Constitution do not permit the Red Chamber to exclusively take any action on such matters in the absence of the House of Representatives. According to Lawan, a joint position would be reached between the Senate and House of Representatives after due consultation with Nigerians to determine the appropriate line of action, when members resume from the Christmas and New Year break.
There is no doubt that the Electoral Act Amendment Bill will be on the front burner by the time members of the National Assembly resume on January 18, but some stakeholders are already suggesting the way out of the impasse over the President decision to withhold his assent. Falana, who submitted that the challenge before the National Assembly is to invoke the provision of section 58 (5) of the Constitution to pass the bill into law by the resolution of a two-thirds majority of the members, however suggested that section 87 of the Electoral Act, which allows for direct or indirect primaries should be left intact, so that the other provisions of the Electoral Amendment Bill 2021 can be passed again by the legislators and assented to by the President if the National Assembly cannot muster the required two-thirds majority. CDD’s Hassan, on her part equally advised the legislators not to allow a single provision to hinder the proposed bill. She asked the National Assembly to either override Buhari and pass the bill or remove the provisions on direct primaries and re-present the bill to the President.
“As the election is just 14 months away, the CDD is calling on the National Assembly to immediately toe two immediate options, which is either veto the President and pass the Electoral Act Amendment Bill into an act of the National Assembly or immediately remove the provisions on direct primaries as raised by the President and immediately re-present the bill to the President for his assent.
“We must not allow a single provision truncate the goodness in the proposed bill. Nigeria is in dire need of a new and robust framework for the conduct of elections. The reform in the Electoral Act Amendment Bill 2021, will improve the quality of elections thereby imbuing citizens’ trust in our democracy. “The National Assembly as the true representatives of the people must not allow the huge human and financial resources that went into the Electoral Act Amendment Bill 2021, from drafting to readings at the floor, the public hearing, the committee works, the retreat, the conference committee et al to go to waste. The National Assembly must act, and the time is now. Save our elections and our democracy!”