Author: Olufunto Akinduro
Nigeria gained independence from Britain in 1960. Like most former British colonies, its elections have been managed by a permanent EMB. Nigeria’s political history is characterized by years of military rule and four republics of civil rule. With every transition programme, an election management authority was established. Overall, Nigeria has had five EMBs: the Electoral Commission of the Federation (ECF) that conducted the 1964 federal elections and 1965 regional elections; the Federal Electoral Commission (FEDECO) that conducted the transitional elections in 1979 and the controversial 1983 elections that ended in a return to military rule; the National Electoral Commission (NEC) that managed the three-year transition programme and ended with the annulled 1993 elections; the National Electoral Commission of Nigeria (NECON) that was established by General Sani Abacha to manage his transition programme, which was aborted after his death in 1998; and the Independent National Electoral Commission (INEC). INEC, which is the focus of this case study, is the longest-serving EMB in Nigerian history. It has conducted four elections: the 1999 transition election; the historic 2003 election, which was the first election successfully conducted under civil rule in Nigeria; the critical 2007 elections, which facilitated the first civilian regime change in Nigeria; and the 2011 elections.[1]
Nigeria has a long history of constitutional and electoral reforms dating from the period of colonial administration up to 2010, and the debate on electoral reforms has continued since the 2011 elections. It is also important to note that the major constitution-making processes that have taken place have been closely linked to Nigeria’s history of transition programmes. All EMBs since independence have been appointed by the president, subject to legislative ratification. EMBs established during the military regime were appointed by the Federal Executive Council. It is also important to mention that since the introduction of the Federal Character Principle (principle of regional or state representation) in the 1979 constitution, it has remained one of the criteria for the appointment of members of the electoral commissions. [2]
Elections in Nigeria are currently regulated by the 1999 constitution (as amended) and the Electoral Act of 2010 (as amended). As in previous constitutions, INEC was established as a federal executive body. The constitution broadly defines the scope of the commission’s powers and responsibilities, and provides for its independence and funding. The 1999 constitution introduced the establishment of 36 Independent Electoral Commissions (SIECs) in each state of the federation, which are mandated to conduct local government elections. [3] The constitution also provided for the appointment of the chairman and members of the commissions by the president, subject to confirmation by the senate. At the state level, the governors appoint the chair and members of the SIECs with confirmation from the State House of Assembly. The constitution also stipulates the criteria for registering political parties. [4]
The Electoral Act provides further detail on the structure of the commission, its powers and guidelines for registering voters, procedures for the conduct of elections, the registration and regulation of political parties, electoral offences and the determination of election offences.
The legal framework for elections in Nigeria has undergone a number of reforms since 1999. The Electoral Act was passed in 2001, and three other pieces of legislation have since been passed, in 2002, 2006 and 2010. Among many other changes introduced by the 2006 act, it empowered the commission to appoint its secretary, to undertake voter education and to prosecute offenders. The law also addressed the ambiguities surrounding the appointment and dismissal of resident electoral commissioners (RECs). The 2010 Electoral act was passed to address the shortcomings of the 2006 act and harmonise the act with the amended constitution. It is important to note that the debates on the passage of the act coincided with the debates on constitutional reforms ahead of the 2011 elections. The 2010 Electoral Act therefore concentrated on certain issues that previous electoral reform efforts could not address because they required the amendment of the 1999 constitution. The act was also amended once before the 2011 elections to increase the time for voter registration and to postpone the elections from January to April 2011, and further streamline its powers to regulate political parties’ activities—especially the process of nominating candidates through party primaries. [5] The 2010 act also prohibits parties from changing the names of persons nominated as candidates, provides new ceilings on campaign expenditures, empowers INEC to deregister political parties on the basis of conditions provided in the law, and limits the powers of an election petition tribunal to nullify the results of an election, but restrains tribunals from declaring candidates as winners of an election. The act mandates the announcement and posting of election results at polling stations, introduces penal provisions for electoral offences, and empowers INEC to prosecute offenders.
The 1999 constitution was amended twice in 2010, after over ten years of national discourse on constitutional reforms. Following the conduct of the 2007 elections, which were reported as the worst in the country’s history, [6] the late President Yar’Adua set up the Electoral Reform Committee (ERC) to review the electoral history of Nigeria and the legal and institutional framework for the conduct of elections, and make proposals for reforms. The ERC undertook wide consultations and received 1,466 memoranda. Its report, submitted in 2008, was widely accepted as reflecting Nigerians’ thoughts on electoral reform. The report also greatly contributed to the constitutional and electoral reforms that preceded the 2011 elections. In its extensive analysis of the challenges of electoral governance in Nigeria, the ERC noted that INEC is an overburdened institution and proposed the creation of three other institutions to undertake its responsibilities. The ERC also proposed to transfer the powers of appointment of the INEC from the president to the National Judicial Council, and recommended that the commission be recruited through an open process. As part of its report, the ERC proposed five bills for reforming different aspects of the electoral process in Nigeria, three of which were focused on unbundling and restructuring INEC.
Though the executive did not fully adopt the content of the ERC report, it did set the tone for the national deliberations on constitutional and electoral reforms prior to the 2011 elections. In 2010, the executive drafted and submitted to the National Assembly a bill for amending the 1999 constitution. While there was a list of pressing national issues to address in a constitutional review process, priority was given to electoral matters. The first amendment of the 1999 constitution provided for the financial autonomy of INEC by charging its budget and the salaries of its chair and members to the Consolidated Revenue Fund. The neutrality and non-partisanship of commission members was also addressed in the amendments, in addition to the timing of elections, the jurisdiction of the courts in determining election petitions, the composition of election petition tribunals and the time limits for determining election petitions. [7] The second bill for amendment of the 1999 constitution involved re-examining the new timelines for the conduct of national elections. [8]
Nigeria has a three-tiered federal system of government, with a bicameral legislature. The first tier is the federal level, the second is state level — there are 36 states and a Federal Capital Territory (FCT) — and the third tier of government consists of 774 local government areas. Each tier of government has an executive and legislative branch; at the state level there are State Houses of Assembly, and at the local level there are Local Government Councils. Federal and state-level elections are conducted by INEC, while local government elections are conducted by the SIECs. For administrative purposes, the country is divided into six geo-political zones; these administrative divisions are central to Nigeria’s politics.
INEC has offices in all 36 states and the FCT, and has a presence in the 774 local government areas of the federation (either in separate offices or shared with the local government authority). Though the commission has a decentralized structure, policy-making is centralized at the national level through a committee system, while policy implementation is decentralized. The INEC chair is the chief executive officer at the national level, while at the state level the REC serves as the chief executive officer, supported by an administrative secretary who is a permanent staff member as chief accounting officer and head of administration. At the local government level, an electoral officer serves as the representative of the commission.
The commission consists of the chair, who is the chief electoral commissioner, and 12 members, the national electoral commissioners. The commission has offices in the 36 states and the FCT, which are headed by RECs, who are also appointed by the president and subject to senate confirmation. While two national commissioners are appointed from each geo-political zone, one REC is appointed from each state of the federation and deployed to INEC offices outside their states of origin. For presidential elections, the chair of the commission is the returning officer, while RECs are the returning officers for governorship and state assembly elections. Members of the commission and the RECs are appointed to serve a five-year term, which is renewable.
It is important to note that prior to the passage of the 2006 Electoral Act and the 2010 amendment to the 1999 constitution, the chain of command between the commission and the RECs was ambiguous, and the legal framework was silent on the procedures for their removal from office. This was viewed as a challenge because RECs were not answerable to the commission, but rather to the president who appointed them. [9] This issue was addressed in the reform process by providing for the tenure of RECs and their accountability to the commission. The amendment of the constitution also took into account the need to stipulate procedures for removing RECs from office. [10]
The secretary of the commission is the head of the commission secretariat and head of administration. Prior to the 2006 Electoral Act, the secretary of the commission was seconded to the commission from the pool of permanent secretaries by the head of the civil service. As part of the structural reforms of the commission that took place before the 2007 elections, the power to appoint the secretary was transferred to the commission. By virtue of its establishment as a federal executive body, the commission has the status of an agency of government, which is independent of the federal civil service. It has the power to appoint and exercise disciplinary control over its staff.
The heads of administration in INEC state offices are the administrative secretaries, who are senior staff of the commission. At the local government level, electoral officers who are permanent employees of INES are responsible for the operations of INEC offices, and they report to the RECs.
INEC is the second-largest government agency, in terms of its staff strength, it is ranked second to the Nigerian Police Force. As at December 2013, the commission’s staff strength was approximately 14,000 full time staff members across the country. [11] The commission also appoints ad hoc staff for election duty (about 300,000 were recruited during the 2011 elections). [12] The size of the commission’s permanent and ad hoc staff base has raised concerns about the efficiency of its administrative system and the professionalisation of its staff. It is important to mention that permanent INEC staff are recruited in line with civil service rules. In June 2005, the Electoral Institute was established as part of the commission’s efforts to develop the capacity of its staff and professionalize the administration of elections in Nigeria. The institute is headquarted in Abuja and has learning centres that offer diploma and certificate courses in election administration. These trainings have contributed to the development of a pool of election administration professional across the country and ad hoc staff are drawn from this pool during election periods.
For the purpose of efficiency, the commission’s administrative structure has been restructured several times since 1999, in line with the leadership policy at different times. At its inception in 1999, the commission had eight departments and three units. [13] At some point, the leadership decided to streamline the number of departments to six departments, three directorates and three units. [14] After the 2003 elections it was restructured to create more departments and a longer reporting chain. As of July 2010, when there was change of leadership at the commission, it had 16 departments and an Electoral Institute that comprised four departments. [15] A more recent restructuring took place under new leadership that took office in June 2010. The process took place in April 2013; the commission currently has 20 departments and an Electoral Institute with three departments. [16]
The 1999 constitution mandates the commission to organize elections into executive and legislative offices at the federal and state levels; to register, monitor and regulate political party operations; to monitor party finance and campaigns; to create and maintain a register of qualified voters; to delimit constituencies for representation in the National Assembly according to the number of seats provided in the constitution; to delegate its powers to RECs; and to carry out other functions conferred on it by an act of the National Assembly. The Electoral Act adds the conduct of voter education and the prosecution of electoral offences to the INEC’s responsibilities. The commission is also empowered to recruit its staff and issue guidelines and regulations to guide the conduct of elections.
The mode of appointment of the commission remains an issue of concern for its independence, as many believe it may be biased toward the appointing authority. The amendment of the 1999 constitution strengthened the commission’s independence by guaranteeing its financial autonomy. It is funded from the Consolidated Revenue Fund, which ensures that it is not hindered in its operations by the many bureaucratic processes of budgeting and disbursement of funds.
Beyond its financial independence, the constitution also provides security of tenure for the commission by providing for the removal of its members and RECs (on the basis of misconduct or an inability to perform the duties of office) by the president, supported by a two-thirds majority of the senate.
The amendment also addressed the concerns raised by the previous qualifications for membership of the commission. Prior to the amendment, members of the commission were required to hold the same qualifications as members of the House of Representatives. This could be interpreted to mean that they were expected to be members of a political party. The amendment of the constitution clarified this issue by stating that persons appointed into the commission should not be members of political parties.
The Electoral Act also protects the commission from undue influence from the executive by making RECs accountable to the commission and empowering the commission to appoint and discipline its staff and secretary.
The conduct of elections in Nigeria is an enormous task that requires efforts from all stakeholders and agencies of government. Considering the country’s long history of fraudulent and violent elections, security agencies play an important role in the conduct of elections. Since its inception, the commission has worked closely with the police and armed forces to guarantee the security of the electoral process. While the military is not deployed around voting areas, it plays a role in securing interstate borders during elections. The naval and air forces also provide support for the distribution of election materials to locations with difficult terrains.
An Inter-Agency Consultative Committee on Elections Security was set up to coordinate the efforts of the different security agencies involved in securing the 2011 elections. These contributed to the success of the 2011 elections and the containment of the post- election violence that broke out in the northern part of the country. [17]
During election periods, INEC establishes a dialogue mechanism through which it meets with political parties and civil society groups to update them on preparations for the elections. The relationship between INEC and political parties has not been particularly cordial, as there has been a high level of distrust and the commission is not perceived as independent. The 2011 elections, however, proved to be different as the new leadership of the commission increased its efforts to improve the transparency of the commission’s work. Fifty-two political parties signed the code of conduct ahead of the elections, and the commission reassured stakeholders of its commitment to sanitize the electoral process by prosecuting offenders, including election personnel. [18] The current commission enjoys a high level of public trust, as evidenced by the acceptance of the results of the 2011 elections.
The success of the 2011 elections can be attributed to the openness and transparency of the current commission. This transparency came into play when the decision to postpone the National Assembly elections by a week was taken after polling had started in some places. This decision did not degenerate into violence because the stakeholders had come to trust the commission, and they were made aware of the logistical challenges involved. The Inter-Party Advisory Council was also established, which further improved the dialogue between the commission and political parties.
The commission’s relationship with the media is another important aspect of its interactions. The responsibility for regulating the media is assigned to the Broadcasting Organisation of Nigeria (BON). Section 100 of the 2010 Electoral Act, however, stipulates regulations on media coverage of candidates during an election. The BON and INEC therefore work together to ensure that the media complies with the general broadcasting and election-related codes.
The commission also works with the National Youth Service Corps Scheme to recruit youth corps members as ad hoc staff in the electoral process. In 2007 and 2011 this proved to be a success.
International donor agencies and technical assistance groups play an important role in the conduct of elections in Nigeria. INEC therefore has a long-standing relationship with these groups. Over the years, technical assistance groups such as IFES and UNDP have been involved in recruiting experts to work in the commission. Donor agencies also engage with the commission to provide funds for specific aspects of the elections for which support is recruited.
INEC is now funded directly by a federation account. This was not always the case before the amendment of the 1999 constitution, when INEC was funded like any other government agency— i.e. it was expected to submit its budget for approval by the National Assembly, and it would await the bureaucratic processes of fund disbursement. During the 1999, 2003 and 2007 elections, disbursement of funds for the conduct of elections was a major challenge that led to substantial delays in the electoral process. For instance, voter registration was delayed in 2003 and 2007 because of the delayed disbursement of funds.
Under the current procedure of funding the commission directly from the Consolidated Revenue Fund, the commission is able to prepare its budget for approval, and thereafter it is disbursed directly to the commission through the Independent National Electoral commission Fund (INEC fund), which was introduced in the 2006 and 2010 Electoral Acts. The establishment of the fund enables the Commission to directly manage the disbursement of its funds.
The National Assembly has oversight functions over the commission in the performance of its mandate. While there is no mandatory reporting chain between the commission and the relevant committees of the National Assembly, it reports to these committees when it is requested to do so. As part of its public accountability procedures, the commission also issues periodic reports of its activities to the public.
In terms of financial accountability, the commission’s budget is presented to the relevant committees of the National Assembly. It is also mandated to report to the office of the auditor general at the end of the year. [19] In the procurement of election materials, it is expected to comply with due process requirements through the Bureau of Monitoring, Prices and Intelligence Unit (BMPIU). [20]
INEC has been very vocal and involved in the national discourse on constitutional and electoral reforms. It is important to mention that the 2004 Electoral Bill was drafted by the commission and submitted to the National Assembly, and was later passed as the Electoral Act of 2006. This approach was criticized because it was not submitted in line with the prescribed procedure. [21] The commission also conducts post-election review exercises at which issues for reform are identified.
The tenure and stability of the commission have been a challenge in previous years, because every chair of INEC has conducted only one election. However, the timing of the commission in charge of the 2011 elections created an opportunity for continuity as it allowed the commission to conduct two elections. This will be the first in the history of the commission. It is also important to note that the renewal of the tenure of some national commissioners, and the appointment of some RECs and national commissioners, also provides an increased opportunity for stability and continuity of policies.
The large size of the commission’s manpower could serve as both an opportunity and a constraint. The commission is able to deploy more permanent staff while depending on ad hoc staff for the conduct of national elections, yet its large staff numbers can be considered a constraint given the level of supervision required. In the absence of effective modernized administrative structures, the large staff could be inefficient.
The establishment of the Electoral Institute and the support of technical partners such as International IDEA, UNDP and IFES create an opportunity to professionalize the commission and develop the capacity of its staff, for example via BRIDGE trainings. The very high level of trust that the current commission enjoys also creates an opportunity for it to plan toward future elections in an atmosphere of trust and transparency.
Notes
[1] Jinadu, Adele, ‘Nigeria’, in Ismaila M. Fall, Mathias Hounkpe, Adele L. Jinadu and Pascal Kambele (eds), Election Management Bodies in West Africa (OSIWA, 2011).
[2] Ibrahim, Jibrin and Garuba, D. Governance and Institution-Building in Nigeria: A Study of the Independent National Electoral Commission (Abuja: Center for Democracy and Development, 2008), p. 27.
[3] Section 197 of the 1999 constitution.
[4] Third schedule (Section 153) of the 1999 constitution.
[5] Electoral (amendment) Act 2010.
[6] Jinadu 2011, p. 153.
[7] Constitution (first alteration) Act 2010
[8] Constitution (second alteration) Act 2010
[9] Guobadia, Abel I., Reflections of a Nigerian Electoral Umpire (Benin City: Mindex Publishing Co, 2009).
[10] Section 7 of the 2006 Electoral Act and Section 6 of the 2010 Electoral Act provide for the tenure of RECs and the chain of command between the commission and the RECs.
[11] Interviews with commissioners and senior staff of the commission, 1–16 August 2010 and 28 June 2014 in Abuja.
[12] Jega, Attahiru, Improving Elections in Nigeria: Lessons from 2011 and Looking to 2015 (London: Chatham House, 2012).
[13] Independent National Electoral Commission [INEC], Report of Activities, August 1998–December 1999 (Abuja: INEC, 1999).
[14] Independent National Electoral Commission [INEC], Report of Activities 2000–2003 (Abuja: INEC, 2003), pp 35–39.
[15] Interviews with commissioners and senior staff.
[16] Interview with senior officials of the commission and the Electoral Institute. See list of directorates http://www.inecnigeria.org/wp-content/uploads/2013/09/INDEPENDENT-NATIONAL-ELECTORAL-COMMISSION-LIST-OF-DIRECTORS11.pdf
[17] Jega 2012.
[18] International Crisis Group [ICG], Lessons from Nigeria’s 2011 Elections, Policy Brief No. 81 (ICG, 2011), p. 2; Jega, p. 6.
[19] Sections 3–5 of the 2010 Electoral Act as amended.
[20] Jinadu 2011, p. 134.
[21] The 2004 Electoral Bill was neither a private member bill nor an executive bill.
Bibliography
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Constitution of the Federal Republic of Nigeria (first alternation) Act 2010
Constitution of the Federal Republic of Nigeria (second alteration) Act 2010
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