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Nigeria: President Vetoes Electoral Act (Amendment) Bill

(Apr. 4, 2018) On March 13, 2018, Nigerian President Muhammadu Buhari, citing a number of concerns, vetoed  the Electoral Act (Amendment) Bill, a proposal aimed at making changes to the 2010 Electoral Act. (Taiwo Adisa, Buhari Withholds Assent to Electoral Act Amendment Bill Rearranging Elections Order, NIGERIAN TRIBUNE (Mar. 13, 2018); Electoral Act 6 of 2010 (Aug. 20, 2010), Independent National Electoral Commission (INEC) website.) This comes as the timetable INEC has set for the next election cycle is fast approaching, with Presidential and National Assembly elections slated for February 16, 2019, and gubernatorial and state assembly and area council elections scheduled for March 2 of the same year. (Dennis Udoma, 2019: INEC Releases Time Table for Presidential, N/Assembly, Governorship Election, VANGUARD (Dec. 8, 2017).)

Reasons for Veto

In a letter he sent to the National Assembly, the President outlined some of the reasons that prompted him to veto the legislation. First on his list was the fact that the proposed legislation sought to change the sequence of elections for different federal and state level offices. Under the current Act, elections must be held in the following order: National Assembly elections, presidential election, and state house and gubernatorial elections. (Electoral Act § 25.) Significantly, the 1999 Constitution accords INEC some discretion in setting election dates. (CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, §§ 76, 116, 132 & 178, World Bank website.) On the basis of these authorities, as noted above, the INEC has already scheduled the elections for 2019. The proposed amendment would reorder the election schedule so that the presidential election would follow rather than precede the state houses of assembly and gubernatorial elections. (Factsheet on the Electoral Act Amendment Bill, 2018 Passed by the National Assembly, Policy and Legal Advocacy Centre (PLAC) 4 (Feb. 2018), PLAC website.) The President noted that this change would infringe on the “constitutionally guaranteed discretion of the [INEC] to organize, undertake and supervise elections.” (Victor Buoro, 2018 Electoral Amendment Bill: President Buhari Withholds Assent, FOREFRONT (Mar. 13, 2018).)

Another concern, which reportedly led the President to this decision, has to do with proposed changes to the grounds on which an election may be challenged by a candidate. Under the current law, the following grounds can be used to challenge an election:

(1)      An election may be questioned on any of the following grounds, that Grounds of petition is to say-

(a)    that a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b)    that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c)    that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d)    that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

(2)    An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. (Electoral Act § 138.)

The proposed amendment seeks to expand parts of the provision. For instance, under the proposed amendment, in addition to violation of provisions of the Electoral Act, an election could be challenged for failure to comply with “published INEC manuals, guidelines, regulations, procedures or directives.” (Factsheet on the Electoral Act Amendment Bill, 2018 Passed by the National Assembly, supra, at 19.) However, the proposed amendment seeks to limit another part of the provision—which currently affords blanket permission to challenge an election on the basis of a candidate’s lack of qualification—to qualification requirements listed under the Constitution. (Id.) The President took exception to the latter part, stating that such a change “unduly limits the rights of candidates in elections to a free and fair electoral review process.” (Buoro, supra.)

Another part of the proposed legislation the President found unacceptable concerns the issue of regulating the powers of the State Independent Election Commissions (SIECs). The President found problematic the proposal’s seeking to extend the application of the provisions of the Act to SIECs, noting that such an amendment “may raise Constitutional issues over the competence of the National Assembly to legislate over local government elections.” (Id.Factsheet on the Electoral Act Amendment Bill, 2018 Passed by the National Assembly, supra, at 22.)

Veto Override Vote

According to the country’s 1999 Constitution, the only way for the legislation to be enacted in its current form is if the National Assembly can muster the support of at least a two-thirds majority in each chamber to successfully override the President’s veto. (CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA § 58.)

The Senate has reportedly reintroduced the proposal in an attempt to pass it again with the votes needed to override the presidential veto. (Damilola Oyedele, Senate Initiates Process to Override Veto on Electoral Amendment Bill, THIS DAY (Mar. 28, 2018).) Both the Senate and the House of Representatives are said to be investigating allegations that some of their members are being bribed to withhold their support from the proposals to override the President. (Id.; Yakubu Dogara, House of Reps Members Accused of Receiving $30,000 Bribe Not to Override Buhari’s Veto, INFORMATION NIGERIA (Mar. 29, 2018).)