By Olufunto Akinduro
1. Background
Nigeria has a long history of electoral reforms dating back to the different political transition processes since independence. With each transition programme a new Electoral Commission was established. This case study will focus on the engagement of the Independent National Electoral Commission (INEC) in electoral reform processes. INEC was established in 1998 as part of the transition process that ushered in the 4th Republic. Since 1999, three electoral reform processes have taken place.
The transition elections that began with the conduct of local elections in 1998 and ended with the 1999 state and national elections took place within the framework of the transitional decrees issued by the military regime. The National Assembly elected was therefore tasked with drafting electoral laws to guide the conduct of future elections. The 2001 Electoral Act was the outcome of this process. The bill was largely driven by the National Assembly and the process became subject of political and legal controversies. The Act was contested in court by Abia State Attorney General on the basis that it had bearing on local government elections which were within the powers of the State Independent Electoral Commissions. This court’s ruling led to a repeal of the Act, leading to the drafting of another bill that had inputs from INEC, as opposed to the first process that was driven by the National Assembly. The bill was passed into Law as the 2002 Electoral Act. Once more the new law became subject of legal challenges as INEC contested the powers of the National Assembly to determine the order of elections. Political parties also challenged the Act on the basis that the criteria for registration of political parties as provided in the Act violated the rights and freedoms enshrined in the Constitution. [1] These court cases led to an amendment of the 2002 Electoral Act that was thereafter passed as the 2003 Electoral Act.
After the 2003 elections, INEC undertook a post-election review exercise [2] that culminated in the drafting and submission of the 2005 Electoral Reform Bill to address the gaps in the previous legislation and the challenges experienced during the 2003 elections. INEC played a key role in the processes that led to the passage of the 2006 Electoral Act.
In the aftermath of the 2007 elections which were regarded as non-compliant with international standards by international observers [3] and admitted by President Yar Adua in his inaugural speech, [4] an Electoral Reform Committee (ERC) was established by the President to make proposals for electoral reforms. The Committee was headed by Justice Uwais, a former Chief Justice of the Federation and comprised of 22 members including amongst others retired electoral commissioners, civil society actors, retired senior police officers. INEC made a submission to the ERC and contributed to its work by providing relevant documentation and clarifications as required. The report of the ERC was submitted to the Executive in December 2008. Drawing on some of the ERC’s recommendations, the Executive prepared a white paper that formed the basis for drafting the Constitutional Amendment Bill. The constitutional amendment process had significant bearing on the electoral process and INEC participated in the public hearings on the bill. Furthermore, INEC submitted proposals for amendment of the electoral legislation ahead of the 2011 elections to the National Assembly to harmonise the electoral legislation with the amended constitution and provide more time for voter registration.
After the 2011 elections, INEC conducted post-election review activities including an independent post-election audit that culminated in its submission of proposals for amending the electoral legislation to the National Assembly which is currently undergoing legislative processes.
Overview of electoral reforms in Nigeria 2005-2010
| Period |
Circumstances or rationale for reforms |
Legal instruments |
Content of proposed reforms |
Outcome of reform |
| Post 1999 elections |
There was no electoral
legislation in
place at the time.
It was therefore necessary for electoral laws
to be passed. |
The 2001 Electoral Bill |
- The Act was the first legal framework governing the conduct of national, state level and local elections. |
The 2001 Electoral Act was passed by the National Assembly. |
| Post 1999 elections |
A court case
brought
by Abia State Attorney General questioning the constitutionality
of the 2001 Act because it had bearing on the conduct of local elections. |
The 2002 Electoral Bill |
- To repeal the 2001 Act.
- Delete sections that referred to the conduct of local elections by INEC as this was constitutionally the mandate of the State Independent Electoral Commissions (SIECs). |
The 2002 Electoral Act was passed by the National Assembly. |
| Post 1999 elections |
A court case brought by INEC challenging the powers of the National
Assembly to determine the order of elections. |
A Bill to amend the 2002 Electoral Act |
- To reduce number of days required for publication of notice of elections.
- Guarantee INEC’s powers to determine the date and order of elections.
- Reduce number of days required for parties to submit list of nominated candidates |
Electoral Act Amendment Act 2003 was passed. [5] |
| Post 2003 elections |
|
The 2005 Electoral Reform Bill |
- Grant INEC powers to appoint the Secretary to the Commission.
- Establishment of an INEC fund to contribute to the Commission’s fiscal independence.
- Provide higher ceilings on campaign expenses.
- Provide stiffer penalties for electoral offences.
- Provide for continuous voter registration.
- Restrained serving government officials from voting as delegates in party primaries.
- Provide time limits to make changes to party nominees.
- Changes to election petition processes. |
2006 Electoral Act was passed with some provisions of the Bill not taken into account. |
| Post 2007 elections |
|
The Electoral Reform Committee Report (2008) [6] |
- Establishment of four different institutions to share the responsibilities of managing elections.
- Abolish State Independent Electoral Commissions.
- Judicial Council should be responsible for the appointment of the INEC Chairperson.
- Appointment of an INEC Deputy Chairperson who should be of a different gender from the Chairperson.
- Independent candidates should be allowed to run in elections.
- Prohibit carpet crossing in the National Assembly.
- New ceilings on individual donations to candidates. |
The Committee’s report was submitted and this formed the basis for the white paper that included proposals for constitutional reforms. |
| Post 2007 elections |
|
Constitution Amendment Bills (2009 & 2010) |
- Financial independence of INEC through the national consolidated fund.
- Members of INEC not to be partisan.
- INEC not subject to control in its administration and operations.
- Change in timelines for elections.
- Powers of National Assembly to make laws that enforce intra-party democracy and INEC to oversee party primaries.
- New quorum for election tribunals.
- Avoidance of tenure elongation as a result of re-run elections. |
The 1999 constitution was amended twice before the 2011 elections. |
| Post 2007 elections |
|
Electoral Act Amendment Bill 2010 |
- Provisions to speed up appeal processes by providing time limits for determination of appeals.
- INEC empowered to de-register dormant political parties.
- INEC empowered to monitor party primaries which are mandatory.
- Outcome of party primaries can be appealed before the courts.
- Proposal to bar political appointees from voting as delegates in party conventions. |
The 2010 Electoral Act was passed and amended once before the 2011 elections. |
Compiled from the following sources:
LeVan, C. and Amarachi U, 2010, Nigeria’s Electoral Law as Harmonised by the National Assembly 2006 and 2010. http://carllevan.com/wp-content/uploads/2010/09/Electoral-Law-Comparison-2010-final.pdf
EUEOM, Nigerian Final Report General Elections April 2012. http://eeas.europa.eu/eueom/pdf/missions/final-report-nigeria2011_en.pdf
2. EMB role
INEC is established by section 153 of the 1999 constitution (as amended) and its mandate and responsibilities are further elaborated in the first part of the Electoral Act. The Commission does not have a formal mandate provided in the law giving it a role in legal or electoral reform processes. Regardless of the absence of a formal mandate stated in law, INEC has played a pivotal role in legal and electoral reforms in Nigeria as will be shown in the following sections.
Structures for engagement in legal reforms
The Commission currently has 19 departments/directorates as well as the Electoral Institute which functions as its research and training hub. With regard to its involvement in legal reforms, all departments contribute to the Commission’s development of proposals for reforms relevant to their different thematic areas of work. However, the legal department and the Electoral Institute are more prominent because of their role in legal drafting and research. Through these two structures, the Commission has been involved in research, consultations and drafting of bills and memos for the attention of the National Assembly. Beyond these internal processes, the Commission has also been involved in public outreach initiatives such as making presentations on the content of electoral reform bills at public hearings organised by the parliamentary committees across the country.
The legal department of the Commission is responsible for providing legal advice; legal representation of the Commission; [7] verification of party and candidate registration documents; contributing to relevant research on electoral justice and legal issues related to the Commission’s mandate. It is staffed by competent legal practitioners who are permanent employees of the Commission. At the national headquarters of the Commission, the legal department has about 30 legal officers and in each state office of the Commission, there is at least one legal officer employed (with the exception of some states that have up to 4 legal officers). [8] The department in some cases also hires the services of legal practitioners on contractual basis as required.
The Electoral Institute organises conferences and symposia through which election professionals share best practises. The outcomes of such initiatives contribute to lesson learning and development of reform proposals. The Institute also offers courses and trains personnel on thematic issues and hence contributes to the implementation of reforms.
Scope of engagement in legal and electoral reforms
INEC’s involvement in legal and electoral reform processes has been structured across the electoral cycle. In the immediate post-election phase, the Commission undertakes post-election review consultations and it commissions independent post-election audits [9] through which it draws lessons for reforms. It also draws lessons from the different complaints and appeals brought by stakeholders in the electoral process over the years. Complaints and appeals have informed some proposals for reform. For instance, the appeal brought by unregistered political parties in relation to the passing of the 2002 Act necessitated a revision of the relevant provisions in the Act.
In the later post-election phase leading up to the pre-election phase for the next general elections, the Commission has been involved in drafting bills and proposals for reform for the attention of the National Assembly. This was the case in 2005, 2010 and 2012 when the Commission made submissions to the National Assembly after national and zonal consultations with stakeholders.
The Commission is also central to the implementation of reform measures. This entails the development of guidelines and procedures taking into account the legal reforms in the lead up to the next elections. (For instance, after its consultation with stakeholders in 2010, the Commission adapted a modified voting system for the 2011 general elections.) It also undertakes outreach activities to raise public awareness on reforms.
3. EMB approaches
I. Activities
INEC’s key approaches to legal and electoral reforms can be categorised under these broad terms: i) post-election reviews and lesson learning initiatives, ii) public outreach and advocacy initiatives, iii) research and iv) legal drafting processes. Its public outreach initiatives are aimed at receiving public input on the electoral issues.
Post-election review and lesson learning
After elections, the Commission has undertaken a variety of lessons-learned review initiatives. While methodology for post-election review has not been standardised over the years, certain approaches are commonplace.
The first step is the conduct of an internal self-evaluation process in which the different aspects of the electoral process are evaluated and the challenges encountered in the previous elections are noted. The outcome of this internal process feeds into the Commission’s strategic planning process and also informs its proposals for legal reforms. This process entails consultations with departments at the headquarters and staff at the state offices of the Commission. For instance, after the 2011 elections, the Commission organised a four-day post-election retreat that was attended by electoral officers from the all 36 states as well as by national commissioners.
The second component of the review process is stakeholder consultations. This exercise is more focused on receiving inputs from targeted electoral stakeholders such as civil society groups, research think-tanks, technical partners of the commission, political parties, the Inter-Agency Consultative Committee on Election Security (ICCES) [10] and the media. After the 2003 elections, the approach was to conduct these consultations at regional and national levels. Drawing on lessons from these consultations and the challenges experienced in the 1999 and 2003 elections, INEC drafted the 2005 Electoral Reform Bill that was submitted to the National Assembly. A similar process was undertaken after the 2011 elections which informed the content of the Commission’s proposal for reforms that was submitted to the National Assembly.
The third aspect of the review process is the independent post-election audit. Introduced after the 2011 elections, the post-election audit aims to open the process to an independent process conducted by election experts. Thus, the Registration and Elections Review Committee (RERC) was established. The RERC comprised of eight members drawn from academia, civil society groups and independent election experts. The RERC conducted its review through field visits to INEC facilities at state level, interviews, focus group discussions and call for papers. The RERC received inputs from staff of the Commission, from stakeholders across the country and from INEC’s technical partners. The RERC audit report was made publicly available in 2012. [11] The timeliness of the release of the report, (less than a year after the elections) ensured that the report contributed to the Commission’s planning for the 2015 elections and its drafting of proposals for reforms.
Beyond election review processes initiated by INEC, it is also important to mention review initiatives conducted by civil society organisations and international groups that were involved in election observation and technical support to INEC. Examples are the regional election review workshops organised by ECOWAS and a joint review carried out by the Commonwealth, IFES and UNEAD in 2003. [12] The reviews also contribute to the proposals for reforms drafted by INEC.
Public outreach and advocacy
INEC undertakes public outreaches to popularise the content of its proposals for reform. In the absence of a formal mandate on legal reforms, INEC engages in the process alongside other electoral stakeholders. Its main approach over the years has been to make presentations on its proposals for reforms at public hearing organised the parliamentary committees on elections. These presentations increase public understanding of the rationale for the proposed changes to the electoral law. For example, in context of the 2005 Electoral Reform Bill, the Commission took steps to publicise the content of the bill through presentations in public hearings and through partnership with civil society groups as well.
Beyond the public hearings, the Commission also engages with the relevant committees of the National Assembly to further advocate for its proposals and clarify its position on issues. INEC’s engagement at this level is quite important to ensure that laws are changed in a practical manner. For instance, after the passage of the 2002 Electoral Act, INEC highlighted its lack of capacity to hold all elections simultaneously that eventually gave way to further amendments.
Research
The Commission’s internal research initiatives are coordinated by the Electoral Institute. The Institute is staffed by researchers with research interest on different thematic areas of the electoral process. With regard to legal reforms, the Institute provides requisite research materials and documentation to support the legal department’s drafting processes. The Institute also organises international conferences and symposia that provide comparative knowledge on thematic issues.
Beyond its internal research initiatives, INEC also commissions expert papers on specific issues. External expertise was for example used during the post-2011 review processes.
Drafting Bills and Memos
The key output of INEC’s consultations with stakeholders and its internal review processes is a draft proposal for reforms. These proposals are presented to the National Assembly and relevant stakeholders in different forms. In 2005, the proposals were submitted in form of a bill – the 2005 Electoral Reform Bill. In 2007, INEC’s proposal was submitted to the ERC in form of memos and position papers which informed the four bills that were drafted by the ERC as part of its report. In 2012, the Commission submitted its proposals for amendment of the 2010 Electoral Act in form of a draft amendment bill.
II. Stakeholder relations
In its engagement with reform processes, INEC maintains close relationships with the National Assembly, civil society, political parties and international partners.
The National Assembly
In the absence of a legal mandate for reforms, the Commission’s engagement in legal and electoral reforms is largely dependent on its capacity to manage a constructive relationship with the relevant committees of the National Assembly. The Commission advocates for its reform proposals at the committee level but also with individual members of the relevant committees in question.
Civil society and political parties
Through its consultative forums, the INEC has strengthened its relationship with CSOs and political parties. The consultative forums are platforms for deliberation on electoral issues that were initiated prior to the 2003 elections as an ad hoc initiative and that over time has become more systematised. In the run up to the 2011 elections, the Commission established separate consultative forums with civil society and political parties. These consultative forums operated at the national and regional levels. The forum met on a needs basis but meetings became more regular closer to Election Day and continued to be organised on a quarterly basis. The above-mentioned post-election review consultations are structured around these stakeholder consultative fora. Through its relationship with civil society and political parties, the work of the Commission has been complemented and strengthened.
The Inter-Party Advisory Council (IPAC) has also served as a platform through which the Commission maintains contact with political parties. The IPAC serves as an advisory body on political party issues to INEC. The IPAC contributed to INEC’s post-election review initiatives after the 2011 elections and has particularly been consulted on proposals for reforms that have bearing on political parties.
International partners
INEC maintains a relationship with international partners that provide technical support to its work. These partners include the International Foundation for Electoral Systems (IFES) and the UNDP through its Democratic Governance for Development Project which is funded by the Joint Donor Basket Fund (JDBF). These partners have provided technical support to INEC through experts hired to make inputs into specific aspects of the Commission’s work. For instance, IFES made significant inputs into the development of the Commission’s approach to the legal framework for party and campaign financing in the 2005 Electoral Reform Bill. IFES organised conferences at which international experts provided comparative perspectives on international best practises. The JDBF supported the work of the RERC in the post-2011 election audit process by providing technical support to the committee.
4. Challenges and risks
The central challenge experienced by INEC in its engagement in reform processes has been the lack of political will by the political class (including members of parliament) to see proposed reforms through and sometimes the lack of political will crosses over into the realm of political interference. A case in point is the proposal made by INEC to restrict political office holders from voting as delegates in party conventions. This proposal was made by the Commission to improve the fairness of the electoral process, improve internal party democracy and limit the influence of incumbents in internal party processes. This proposal was dropped by the parliamentary committees as it was deemed not to favour the political class. [13]
This challenge also impacted on the final outcome of the ERC led reform process because the Executive dropped a number of the Committee’s recommendations in its white paper. For instance, the proposals that the Chair of the Commission should be appointed by the National Judicial Council (NJC) and for the electoral process to be open to independent candidates were rejected. [14]
To address this challenge of lack of political will and sometimes political interference, the Commission has sort judicial interpretation of the Constitution on a number of occasions to ensure that the political class does not interfere in its powers by manipulating legislations. For instance in 2002, INEC sought judicial interpretation of its powers to ensure that the National Assembly does not set the date of elections in legislation and foreclose the registration of new political parties. [15] The judiciary continues to provide the requisite guarantee of the Commission’s powers.
Another challenge associated with INEC’s work on reform issues is related to the nature of its submission of draft bills to the National Assembly. By the procedural rules of the National Assembly, bills are to be presented in the National Assembly either as private member bills presented by members of the National Assembly or as executive bills presented by the Executive. When INEC submitted its 2005 draft bill, its status was questioned by members of the National Assembly. Eventually, the bill had to be adopted and presented as a bill originating from the committees on electoral matters. This situation enabled the committee to adapt the content of the bill before presentation.
The main risk associated with INEC’s engagement in electoral reform processes is the fact the Commission is appointed by the President and its members can be removed through an impeachment process requiring the support of two-thirds majority of the Senate. While it has never been the case that a member of the Commission was removed from office for his/her strong views, this could happen within the current framework if at any point in time a ruling party decides to exert its powers.
5. Recommendations
- To enable a comprehensive engagement in legal and electoral reforms, EMBs may consider developing a system for continuous evaluation of the electoral process and documentation of lessons learnt throughout the electoral cycle, through for instance a mid-term review of the electoral process. This will ensure that reform and review initiatives will not be concentrated in the post-election phase and enable the commission to further target its reform initiatives to the appropriate stakeholders even before the elections.
- EMBs may consider establishing a research and training department or unit to support and coordinate the activities of other departments in the documentation and drafting of reform proposals.
- A formal mandate in legal and electoral reforms will contribute to the legitimacy of EMB engagement in reform processes.
- EMBs may consider establishing formal consultation and dialogue mechanisms to provide an avenue for public inputs in reform processes. This will contribute to citizen participation and provide a sense of ownership.
- When engaging in legal reforms, EMBs may seek to play a role in the drafting of bills because EMB inputs will ensure that the provisions of the bills are practical.
[1] For further information on this court case, see: http://www.chr.up.ac.za/index.php/browse-by-subject/413-nigeria-independent-national-electoral-commission-and-another-v-musa-and-others-2003-ahrlr-192-ngsc-2003.html
[2] INEC conducted stakeholder consultations at the regional and national levels. International organisations were also part of the process. For instance: Commonwealth, IFES & UNEAD 2003, Nigeria Electoral Review Report. http://aceproject.org/ero-en/regions/africa/NG/ertreport/
[3] EUEOM, Nigerian Final Report General Elections April 2012. http://eeas.europa.eu/eueom/pdf/missions/final-report-nigeria2011_en.pdf
[4] Oyekami, B. (2013) ‘The Politics of Electoral Reform in Nigeria’ Covenant University Journal of Politics and International Affairs (CUJPIA) vol. 1. No.2. pp 258- 259. http://journals.covenantuniversity.edu.ng/cjpia/published/Babatunde.pdf
[5] See: http://resourcedat.com/wp-content/uploads/2013/03/Electoral-Act-Ammendement-Act-2003.pdf
[6] See: https://groups.google.com/forum/#!topic/usaafricadialogue/X8bnWjpNShg
[7] This includes representation in court cases where the Commission is joined as party; representation in contractual agreements. Furthermore, the Commission also has a mandate to prosecute electoral offenses which also falls within the ambits of the department’s work.
[8] In the Lagos, Enugu and Kaduna state offices of the commission, there are up to 4 legal officers employed.
[9] After the 2011 elections, a committee of election experts drawn from civil society and academia were commissioned by INEC to conduct an independent audit of the 2011 voter registration and election processes.
[10] A platform established before elections to provide a coordinated approach to security issues during the elections. It includes representatives of security agencies.
[11] Available at: http://www.inecnigeria.org/wp-content/uploads/2013/07/RERC-REPORT.pdf
[12] See: http://aceproject.org/ero-en/regions/africa/NG/ertreport/
[13] INEC had proposed in the Bill that political appointees should be barred from voting as delegates in party primaries to ensure that incumbents don’t have undue advantage in such processes. This proposal was dropped by the National Assembly. Udo Jude Ilo, 21 Oct 2010, ‘Reform Without Change, an Appraisal of the Electoral Reforms in Nigeria’, Vanguard Newspapers 21 Oct 2010. http://www.vanguardngr.com/2010/10/reform-without-change-an-appraisal-of-the-electoral-reforms-in-nigeria/#sthash.uG4Sfv7J.dpuf
[14] See: http://www.nas-int.org/nas-seminars-and-lectures/547-ten-years-of-nigerian-democracy-a-review-of-the-electoral-process.html?showall=&start=3
[15] Guobadia, Abel, I. (2009) Reflections of a Nigerian Electoral Umpire, Benin City, Mindex Publishing Co.
Annex 1: List of references
- A Bill for An Act to Alter the Provisions of the Federal Republic of Nigeria, 1999 (First Alteration).
- A Bill for An Act to Alter the Provisions of the Federal Republic of Nigeria 1999 and Constitution of Nigeria (First Alteration Act ) 2010.
- Commonwealth, IFES & UNEAD 2003, Nigeria Electoral Review Report. http://aceproject.org/ero-en/regions/africa/NG/ertreport/
- EUEOM, Nigerian Final Report General Elections April 2012. http://eeas.europa.eu/eueom/pdf/missions/final-report-nigeria2011_en.pdf
- Guobadia, Abel, I. (2009) Reflections of a Nigerian Electoral Umpire, Benin City, Mindex Publishing Co.
- LeVan, C. and Amarachi U (2010), Nigeria’s Electoral Law as Harmonised by the National Assembly 2006 and 2010. http://carllevan.com/wp-content/uploads/2010/09/Electoral-Law-Comparison-2010-final.pdf
- Oyekami, B. (2013), ‘ The Politics of Electoral Reform in Nigeria’ Covenant University Journal of Politics and International Affairs (CUJPIA) vol. 1. No.2. pp 258- 259. http://journals.covenantuniversity.edu.ng/cjpia/published/Babatunde.pdf
- Report of the Registration and Election Review Committe http://www.inecnigeria.org/wp-content/uploads/2013/07/RERC-REPORT.pdf
- Udo Jude Ilo, 21 Oct 2010, ‘Reform Without Change, an Appraisal of the Electoral Reforms in Nigeria’, Vanguard Newspapers 21 Oct 2010 http://www.vanguardngr.com/2010/10/reform-without-change-an-appraisal-of-the-electoral-reforms-in-nigeria/#sthash.uG4Sfv7J.dpuf
- Persons Interviewed: Mr Oluwole Osaze-Uzzi, Director, Voter Education, Publicity, Gender and Civil Society Liaison. Former Director, Legal Services and Former Special Assistant to the Chairman, INEC.
Annex 2: About the author
Ms. Olufunto Akinduro is the Head of the Elections and Political Processes Department at the Electoral Institute for Sustainable Democracy in Africa (EISA), Johannesburg South Africa. She oversees the Institute’s election-related programmes which include election observation and technical assistance to key stakeholders like Electoral Commissions, national civil society groups, relevant departments of continental institutions such as the African Union and Regional Economic Communities. Prior to her work at EISA, she worked in the field of elections and democracy in Nigeria for five years. During this period she managed the secretariat of the Electoral Reform Network (ERN). She has observed elections in Nigeria and in many African countries under the auspices of the African Union, ECOWAS and EISA. She holds a Masters degree in Peace and Conflict Studies from the University of Ibadan, Nigeria; and a Masters degree in Development Studies specialising in governance and democracy from the Institute of Social Studies, Netherlands. Her research interests include election administration, electoral integrity and electoral violence prevention.
