Submission Deadline-30th July 2024
July 2024 Issue : Publication Fee: 30$ USD Submit Now
Submission Open
Special Issue of Education: Publication Fee: 30$ USD Submit Now

An Overview of the Electoral Act, 2022

  • Yahaya Alhaji Dunoma, PhD
  • Baba Isa Sanda Benisheikh, PhD
  • 1505-1522
  • Jun 20, 2023
  • Law

An Overview of the Electoral Act, 2022

Yahaya Alhaji Dunoma, PhD1 and Baba Isa Sanda Benisheikh, PhD2

1Lecturer, Department of Languages & Liberal Studies, Ramat Polytechnic, Maiduguri; Visiting Senior Lecturer, Department of Business Administration and also the Legal Officer, Borno State University

2PhD, Lecturer, Department of Private Law, University of Maiduguri

DOI: https://doi.org/10.47772/IJRISS.2023.70615

 Received: 06 May 2023; Accepted: 16 May 2023; Published: 20 June 2023

ABSTRACT

The Electoral Act, 2022 is a legislation meant to guide the Independent National Electoral Commission (INEC) while conducting election in Nigeria. It is legal framework regulating the electoral processes in the country including the activities of political parties ranging from registration and merger. This article seeks to examine the Act in an abstract form using doctrinal means to analyse this novel legislation. It is observed that the legislation is perfect for the timing but was not implemented fully by the Commission in particular and Nigerians in general. To correct this anomaly, all stakeholders including the Commission need to put into use all vital provisions to give life to the legislation in all elections to come.

Keywords: Collation Centre, Accreditation, BVAS, Voting and Transmission, Commission

INTRODUCTION

The Electoral Act No. 13, 2022 is gazette by the Federal Government on 29th March, 2022 at Vol. 109 as No. 61 by the Federal Government Printer, Lagos, Nigeria with serial number FGP/85/52022/650. It is divided into Nine (9) Parts with One Hundred and Fifty Three (153) Sections. Part One (1) establishes the Independent National Electoral Commission (INEC) and arrogated some functions to the Commission. Part Two (2) established staff pool of the Commission. Part Three (3) provided for National Register of Voters and Voters’ Registration. Part Four (4) provided for procedure at election generally. Part Five (5) provided for political parties and party affairs. Part Six (6) provided for election to Area Councils of the Federal Capital Territory, Abuja. Part Seven (7) provided for electoral offences. Part Eight (8) provided for determination of post electoral matters by the Election Petition Tribunals. Part Nine (9) provided for miscellaneous provisions. This novel Act was signed into Law by President Muhammadu Buhari on 25th February, 2022. It came into force the same day. It repealed the Electoral Act, No. 6, 2010.[1]

PART ONE (I)

Establishment of the Independent National Electoral Commission (INEC)

The Commission is established as a body corporate with perpetual succession.[2] It may sue and be sued with its corporate name meaning the Independent National Electoral Commission (INEC).[3] The Commission shall have National headquarters situated at the Federal Capital Territory (FCT), Abuja.[4]

The Functions of the Commission

The Commission as a constitutional body is established first as an agency of the Federal Government of Nigeria by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and clothed it with some functions as provided for in sections 221-228. These functions are reiterated by the enabling Act of 2022.[5] In addition to these functions enshrined in the Constitution, the Commission is empowered to do the following functions:

  1. To conduct voter education and civic education;[6]
  2. To promote knowledge of sound democratic election processes;[7]
  3. To conduct any referendum required to be conducted under the provisions of the Constitution or an Act of the National Assembly;[8]
  4. To compile, maintain and update National Register of voters which is called the ‘Register of Voters’;[9]
  5. To keep in its custody the voters’ register;[10]
  6. To monitor the activities of political parties in Nigeria.[11] As part of its functions to political parties, the Commission must make available to political parties within 60 days after each year, the names and addresses of each person registered during that year[12] to update its record. This would be done upon the payment of prescribed fees by the Commission. The voter’s register for each state or for a local government or Area Council polling units before release to any political party must be certified as a true copy by the Commission.[13]

In addition to the functions above, Emmanuel argued that the Commission conduct annual examination and financial auditing of funds and accounts of political parties including publishing such reports. It also monitor party primaries, congresses and conventions. Above all, conduct elections in all elective offices[14] except those that fall within the powers of the State Independent Electoral Commissions (S.I.E.Cs).

It is worthy to state that the Act empowered the Commission to appoint one or more Committees to perform all or any of these functions provided for under this Act.[15] This include appointing Presiding Officers during election days or periods. However, the Presiding Officer so appointed must observe the culture of the those people in the area he is deployed when voting by queuing up voters both men and women but not permit mingling.[16]

The Establishment of the Independent National Electoral Commission Fund

The Act established for the Commission a Fund which is called ‘the Fund’.[17] This Fund is a pool where all monies will be paid into.[18] The monies that will be paid into are those funds, sums and payments received from the Federal Government of Nigeria meant for the Commission for the purpose performing its functions under the Constitution and this Act.[19] Some other funds or monies credited into the Funds either by way of interest or proceeds from an investment made by the Commission as a result of the establishment of the Fund.[20] Any other monies in form of aids, grants or any other benefit accrued to the Commission in order to perform its functions[21] under section 2 of this Act.

It is pertinent to note that all funds meant for the conduct of general elections that are due to the Commission are to be released to the Commission not later than one year before the next general election.[22] This implies that the monies for general elections of 2023 will be deposited or credited into this Fund at least in February, 2022 immediately after President Buhari signed into Law the Bill on 25th February, 2022. To this end, Mahmud Yakubu says the Commission has received substantial amount to conduct the 2023 general elections.  He emphasised that not all the funds were released to the Commission but a significant amount is received.[23] This vindicates the provision of the Act. However, all disbursements from the Fund must be done in accordance with Rules set out by the Commission.[24]

The capital and recurrent expenditure of the Commission

The Commission is empowered by the Act to apply or use the proceeds in the Fund of the Commission for both capital and recurrent expenditures with a view of running the daily need of the Commission.[25] This includes defraying the cost of administration of the Commission.[26] Reimbursing members of any Committee set-up by the Commission as their expenses which are expressly authorised by the Commission in accordance with the rates approved by the Commission.[27] Pay salaries of staff, fees, allowances and other emoluments, pensions and gratuities and superannuation allowances due and payable to the retired officers and servants of the Commission.[28] The cost of maintenance of any vested property of the Commission. And all or any of its functions to be performed under this Act with money which are miscellaneous.[29] However, no payment under whatever guise will be made except expressly authorised by the Commission to any person who benefits any emolument either from the Federal Government or a State Government as the case may be apart from those stated above.[30] All these forms part of the expenditure of the Commission.

The Act mandated the Commission to keep good and proper care of all accounts and records for each financial year and to cause its accounts to be audited as soon as possible or practicable at the expiration of each fiscal year ending as required by law in force.[31] This is mandatory and not persuasive because without records, there will be no perpetual succession. This will give the succeeding Management team a direction.

Establishment of State and Local Government Area Offices of the Commission

The Act empowered the Commission to establish offices in each State of the Federation, the Federal Capital Territory, Abuja and in each Seven Hundred and Seventy Four (774) Local Government Areas including the six (6) Area Councils of Abuja an office that will perform the functions that may be assigned to each by the Commission.[32] To perform these functions at the State Office, the Act mandated the appointment of a person to the office of Resident Electoral Commissioner who shall be answerable to the Commission, hold that office for a tenure appointment of five (5) years from the date of appointment thereof and is subject to renewal for another term of five (5) years.[33] To this end, President Buhari in exercise of the powers vested on him, has appointed nineteen (19) new Resident Electoral Commissioners. Five (5) among them for renewal of their term while the remaning fourteen (14) for fresh appointment.[34] The power of hire comes with power to fire. The Act empowered the President of the Federal Republic of Nigeria to remove from office any person appointed as Resident Electoral Commissioner acting on an address supported by not less than two-thirds majority of the Senate asking or praying for that that the Resident Electoral Commission of so state be removed for his inability to perform the functions of that office, whether as a result of mental infirmity or body infirmity and in fact any other cause or misconduct.[35] However, the appointment into that office must conform with section 14 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 4 of the Federal Character Commission (Establishment, etc) Act[36] in force which frowns at discriminating one part of the country against another.

PART TWO (II)

The Staff of the Commission

This part provided for staff of the Commission who are responsible for day to day running of the affairs of the Commission alongside with the Resident Electoral Commissioner of the State as provided for under section 6 (2) (a-b) of the Act. It provided that there shall be a Secretary to the Commission who shall be appointed by the Commission.[37] Any person to be appointed by the Commission to occupy the office of Secretary must be qualified and experienced. These two determinants are to be set by the Commission.[38] That person so appointed will hold office for a term of four years and is subject to renewal without further renewal.[39] In line with the general directions of the Commission, the Secretary is perform the functions of keeping proper records of proceedings of the Commission, head the Secretariat and administer the Secretariat, direct and control of all other employees of the Commission with prior approval of the Commission.[40]

It is worthy to state that the Commission reserves the power to appoint, dismiss, and to exercise disciplinary control over its staff as may be prescribed by this Act or any other Act.[41] The provision of section 8 (3) applies to all employees of the Commission except those appointed on temporary basis who are not entitled to benefit for in the Pensions Reform Act.[42] Any employee to which this section applies must not be a member of a political party or where he misrepresents himself during appointment by not disclosing his membership or affiliation or connection to any political party to secure an appointment with the Commission in whatever capacity, is guilty of an offence and is liable on conviction to N5,000,000.00 fine and two-years imprisonment or both.[43]

PART THREE (III)

The National Register of Voters and Voter’s Registration

The Act empowered the Commission to compile, maintain and update on a continuous basis the National Register of Voters to accommodate new applicants.[44] The Register contains the name of all persons entitled to vote in all elections be it Federal, State, Local Government or Federal Capital Territory, Abuja stating the disability status and its type.[45] This Register is to be kept in the National Headquarters and other locations. This record shall be kept in an electronic format in the central database and then printed manually in a hard copy. This will be maintained as part of its Register of Voters for each state and the FCT, Abuja.[46] So also for all local government areas within each state and the FCT, Abuja.[47] This register as stated in this section would be in the custody of each Electoral Officer of a Local Government Area or Area Council as the case may be.[48] The Register of Voters must conform the format prescribed by the Commission.[49] However, it is mandatory to update and revise voters register until 90 days to the general election to be conducted under this Act.[50] No registration of voters will be conducted except at the designated centres for that purpose and the general public must be notified.[51]

Who is qualified to be in the Register of Voters?

Without injuring section 9 of the Act, the following persons are qualified to be registered during continuous voter’s registration by the Commission.

  1. A citizen of Nigeria;
  2. Who has attained the age of 18;
  3. Who either resides, works in Nigeria or originates from any local government, Area Council or Ward covered by the registration centre;
  4. He presented himself to the registration officer as a voter;
  5. He must have not been incapacitated by any legal framework in force in Nigeria.[52] Note however, no voter will register in more than one registration centre during registration.[53] What will happen when a person contravenes subsection 2 of section 12 of the 2022 Act? The answer is. That person commits an offence and is liable on conviction to a fine not more than N100,000.00 or imprisonment for one year or both.[54]

It is pertinent to note that at the point of registration, the Registration Officer is empowered by the Act to demand from the applicant necessary information to ascertain whether he is qualified to be registered or not. Or ask that person to fill a form for that purpose.[55]

What are the requirements for registration in the Register of Voters under the Act?

Every qualified person seeking to be registered in the Register of Voters must come along with the followings:

  1. Birth certificate;
  2. National passport or national identity card or national driver’s licence
  3. Any other document that will prove the identity or age or nationality of the applicant.[56]

Who is authorised to register applicants in the Register of Voters under the Act?

The Commission is empowered to appoint persons who are not members of any political party to register voters. Maintain the register, update the register and revise the register as the case may be.[57] Where a card carrying member of a political party is appointed to do these functions, then any person may raise an objection against that officer but failure to do that will not vitiate the registration earlier done by him.[58] The appointed officer is to perform his functions as authorized by the Commission or as directed and under its control. He shall not succumb to the control of any person other than the Commission while performing his duties under this section.[59] The appointment to do registration of voters and functions is determined by the Commission.[60]

How to transfer from one polling unit to another under the Act?

The Act empowered the Resident Electoral Commission of a State to receive application for transfer from one constituency to another by a voter. This will be done upon entering the name of that person on the Transferred Voters List. The application must be accompanied with the applicant’s voter’s card and must be done not later than 90 days before general election. Where the Resident Electoral Commission is satisfied, then any applicant will be registered in that new constituency[61] and will be assigned to a polling unit or station or area in his/her constituency. A new voter’s card would be issued to him/her and the old voter’s card be retrieved from that applicant.[62]

The powers of the Commission in relation to Voter’s Cards

The Act empowered the Commission print voter’s cards for each State of the Federation, or reproduced same or a copy of it or duplicate of same. This powers extends to saving the data in an electronic means and could be obtained by a person or a political party.[63]

It falls within the powers of the Commission to design, control and issuance voter’s cards to voters whose names appear in the register.[64] However, all voters are entitled to one copy of voter’s card.[65] Any person violates this provision of section 16 (2) of the Act by possessing more than one voter’s card, commits an offence and is liable on conviction to a fine of N500,000.00 or imprisonment of one year or both.[66]

The Commission is empowered to issue replacement copy of voter’s card where it is reported to have been lost, defaced, stolen, torn or damaged by stating the circumstances thereof.[67]

Upon successful register of voters, the Act empowered the Commission to display the list of all voters 90 days before the general election. This display would be done for seven (7) days for public scrutiny with a Local Government Area or Area Council or Ward and on the official website of the Commission. This is done to raise objection on the form prescribed by the Commission that such and such persons are not qualified to be registered as a voter or that the name of a deceased person is included in the register. Or someone’s name is omitted. This objection or claim will be done through the Electoral Officer addressed to the Resident Electoral Commissioner.[68] To entertain such claims, the Commission is empowered to appoint a person as Revision Officer to look at the objections or claims as the case may. Where an applicant is not satisfied with the decision of the Revision Officer, he/she will apply to the Resident Electoral Commissioner within seven (7) days.[69] However, the Commission has vesting proprietary right over all voters cards issued to all persons in Nigeria.[70]

Offences relating to Voter’s Card

The Act makes it a criminal offence for anyone to obtain voter’s cards unlawfully whether issued with his name or with the name of another person.[71] It went further to criminalised selling or attempt to sell voter’s card or even making an offer sell same.[72] It is immaterial whether it is issued with his name or bearing the name of another person. It also makes it an offence to same for oneself or on behalf of any person.[73] Anyone who does that commits an offence and is liable on conviction to a fine of N500,000.00 or two (2) years imprisonment or both.[74]

More so, any person who fails to give necessary information relating to registration of voter who is dead by signing an application form on that person’s behalf which he knows as false or intentionally procured the registration of that person that is fictitious, commits an offence and is liable on conviction to a fine of more than N100,000.00 or one (1) year or both.[75]

It is an offence to refrain persons from registering as a voter by threat or hinders such person from voting. In either case, that person commits an offence and is liable on conviction to a fine of N500,000.00 or imprisonment of five (5) years.[76]

PART FOUR (IV)

The Procedure to be followed during election

The Act provided for room to conduct election emergency period by the Commission to see that no Nigerian is disenfranchised as a result of displacement.[77] This is the case in Borno State during this 2023 election where Guzamala Local Government Area election was held in Nganzai Local Government Area because it is accessible due to insurgency.[78] It also empowered the Commission to suspend election where there is likelihood of violence or breach of peace in that area. Another date will be announced to hold that election. This is the case in Enugu East Senatorial District when the Senatorial candidate of the Labour Party was assassinated few days to the general election. This compelled the Commission to suspend the election and new date was announced which was done alongside the gubernatorial and state assembly elections.[79] This requirement of the Act extends to situations where election has commenced but there is substantial disruption of the process in a polling unit. However, where there is such a situation, no return will made when the affected area is a decider. But return will be made where the affected area is not a decider.[80]

Announcement and declaration of results after polls have closed

The Act provided that the following persons will make announcement of winners and declaration of results depending on the type of election conducted and the area concerned. The Presiding officer does at the polling unit immediately. The Ward Collation Officer at the Ward Collation Centre. The Local Government Area Collation Officer at the Local Government Area Collation Centre. The State Collation Officer at the State Collation Centre. This is done by the Returning Officer for the affected elections.[81] However, for the Presidential election, it is done by the Chief Electoral Officer which is the Chairman of the Commission.[82] The Commission does that through the Chairman during every election. For 2023, it announced that Bola Tinubu of the All Progressives Congress (APC) won the election.[83]

The need to take oath of neutrality by all election officials

The Act provided that all persons taking part in all elections under this Act, must subscribe to an oath or make affirmation of loyalty and neutrality as contained in the Second Schedule that they will not accept bribe or gratification from any person and that they will perform functions diligently without fear or favour.[84] This applies to all officials both permanent and ad-hoc, security agencies etc. Anybody fails to do that commits an offence of dereliction of duty and is punishable under section 120 of this Act.[85]

Notice of general election

The Act provided that before 360 days to general election, the Commission must publish in each state of the Federation and Federal Capital Territory, Abuja that on such date election will hold, at such places, the place to deliver nomination forms of candidates by political parties. This applies to all elections including by-election. However, there is no substitution of candidate in a by-election unless the substantive candidate dies, a party can do that within seven (7) days of the death of its candidate in the Format prescribed by the Commission.[86]

Submission of candidates by political parties alongside affidavits

The Act provided that all political parties are to submit list of their candidates not later than 180 days to the general election after a valid primary election is conducted by a political party. To accompany this list, the candidate must swore to an affidavit at the Federal High Court, or State High Court or High Court of the Federal Capital Territory, Abuja stating that he or she has fulfilled all the constitutional requirements for election into that office.[87] This creates the room to challenge any nomination of a candidate by any aspirant who believed that the information contained in the affidavit is false in a court of law.[88] It is an offence to present any person who has not met constitutional requirement by a political party. This offence is liable on conviction to a fine of N10,000,000.[89]

No double nomination of aspirants by one registered voter

The Act prohibited the nomination of two different aspirants by one registered voter for an election into the same office.[90] For example, Konduga State Constituency.[91] Anybody who violates this provision is liable on conviction to a fine of N100,000 or imprisonment of three months or both. However, his double will not invalidate either nomination made.[92] But, where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, such nomination is void.[93]

Withdrawal of candidature

The Act gave leeway to candidates validly nominated to withdraw their candidature by giving in writing duly signed by him which is delivered personally by the candidate to the political party that intends to sponsor him in the election. This withdrawal must be communicated to the Commission within 90 days to the election.[94] The issue of nomination and subsequent withdrawal of candidate reached its zenith in the PDP Borno Central Senatorial District when two conflicting judgments were made by the Federal High Court Maiduguri Judicial Division in a suit filed by Jibrin Tatabe against Hon. Mohammed Kumalia FHC/MG/CS/54/22 (unreported) where Justice Jude Dagat nullified the nomination of Hon. Mohammed Kumalia while Federal High Court, Abuja dismissed case filed by Jibrin Mustapha Tatabe which challenged the withdrawal of his name by PDP as a nominated candidate in suit number FHC/ABJ/CS/1240/22 (unreported).[95] These cases were finally let to rest by the Court of Appeal sitting in Gombe who overturned the judgment of the Federal High Court sitting in Maiduguri and reinstated the candidature of Kumalia and upheld the withdrawal of Tatabe as nominated by the party being an internal affair of the PDP.[96] However, the Act prohibited substitution of candidate except on two grounds that is death or withdrawal as provided by the Act. This will be done within 14 days of happening of either incident.[97]

Where there is no nomination of candidate by any political party at the close of nominations, the Commission is empowered to extend the time for nomination and fix another time for election.[98] But, where there is more than one nomination in that constituency, then election will take place as a contested election as required by the Act for either the office of the President, Governor or any other office.[99] And where at the closed of nomination, substitution as a result of death or withdrawal and extension of time for that effect, one person is contesting except for the office of the President or Governor, then that person would be declared elected in accordance with section 39 (2) of the Act.[100]

Establishment of polling units and balloting

The Commission shall divide each Local Government Area into area registration areas as circumstances may require with adequate number of polling units.[101] It will equally provide ballot boxes, electronic voting machines and other devices. However, it is the mandate of the Commission to determine what form is to be used.[102] The Commission shall describe the format of the ballot papers including the symbol adopted by each political party which is numbered serially.[103]

               The Act mandated each political party to appoint a polling agent for each polling unit.[104] However, no person occupying an elective office or appointed as a Commissioner or Minister is allowed to be appointed as polling agent or sit in any collation centre for collation of election results.[105] The non-appointment of polling agent at a polling unit or its refusal to attend, will not invalidate any act or thing done at the polling unit or collation centre.[106] This include walking out of the centre like was done by the National Collation Agent for the People’s Democratic Party (PDP), Senator Dino Melaye during collation of the Presidential results.[107]

            The Commission must notify voters of the days and hours for ballot casting, location, and persons entitled to vote.[108] Before accreditation and balloting starts, the Presiding officer will display the empty ballot box to the seeing of all.[109] Then proceed to accreditation of voters and voting where each person will present himself for that purpose. During, accreditation, the Presiding officer will use either smart card reader or any other device.[110] In this election of 2023, BVAS machine was used being the instrument prescribed by the Commission in line with section 47 (2) of the Act.[111]

The right of candidate or polling agent to challenge a voter

The Act empowered either candidate or its polling agent to challenge a voter on any of the ground provided in this Act.[112] This right extends to the election period only.[113]

Which type of voting system is recognised under the Act?

Voting during general election is by open secret ballot.[114] However, voting during election and transmission of results is as prescribed by the Commission.[115] This provision is subject to section 63 of the Act which provided that the Presiding officer can proceed to count the votes cast even if the ballot papers does not bear the official mark or emblem of a political party as prescribed by the Commission.[116] To make the process transparent, all ballots shall be deposited in the ballot box to the full view of the public.[117] This provision is not freelance. Voters are not allowed to make any mark on the ballot paper to indicate that they voted for such and such political party. Where such mark is made, then the ballot paper is to be rejected.[118] The rejected ballot paper will be endorsed by the Presiding officer with the word ‘rejected’ and ‘but objected to’ where the rejection is made by a candidate or party agent. He accompany this rejection with a report.[119] However, this does not apply to voters who does such marking accidentally, the Presiding officer will collect the spoilt one and replaced with another for him to cast his vote. That one will be marked cancelled by the Presiding officer.[120] The Presiding officer is further empowered by the Act to consider a virtually impaired person during voting by marking on the ballot paper.[121]

This goes with the powers of the Commission to provide necessary instruments to accommodate such persons with disability, special needs and vulnerable persons.[122]

It is worthy to note that no voter will vote during an election unless he presents himself personally to the polling unit. There is proxy voting.[123] And that no one is allowed to vote except in the polling unit he registered.[124] Where a person impersonates on election’s day and it is substantially proved that he does that, the Presiding officer is authorized by the Act to order for his arrest and that order is valid order for the police act. Such cases usually occur where a person is below the age of 18.[125] The Presiding officer in such a situation will write in front of the name of that person ‘protested against for impersonation’.[126] That person will not be permitted to vote and will be handed over to the police for proper custody.[127]

It is pertinent to state that each voter during voting at the polling unit and election officials are required to mandate topmost secrecy while doing or performing their functions.[128]

Who regulate the polling unit?

The Presiding officer regulates all voters at the polling unit. This power includes directing the affairs of all at the polling unit. However, he is not authorized to exclude candidates, polling agents, clerks, election observers etc. he must ensure order and comply with the requirements of the Act.[129] This extends to ordering the removal of any person for disobedience to lawful order.[130] Where a person is removed for disobedience, he shall not re-enter the polling unit without the permission of the Presiding officer.[131] This power is not arbitrarily use to prevent a person from voting.[132] Where there is no Presiding officer, the polling clerk enjoys all these powers given to the Presiding officer by the Act in respect of the polling unit.[133]

When would polls close?

When the prescribed time or hour for closing polls comes, the Presiding officer shall declare the poll closed and no further casting of ballots by any voter except those that have been accredited before the closing time.[134] Thereafter, the Presiding officer will proceed to sorting and counting and fill the prescribed forms by entering scores of each candidate.[135] Each form will be signed and stamped by the Presiding officer and counter-signed by the candidates or their agents.[136] Copy of the result sheets be distributed to each agent and security officials available.[137] This procedure is followed by announcement of result at the polling unit and then transfer of same is done in accordance with manner stated by the Commission. Any Presiding officer who wilfully violates this provision, commits an offence and is liable on conviction to a fine of N500,000.00 or six months imprisonment.[138]

It is worthy to mention here that a candidate who participated in an election or his agent has the right to seek for recount of votes earlier counted by the Presiding officer or Returning officer as the case may be but the recount will be done once and no more.[139]

What happen next after counting and announcement?

The Presiding officer is mandated to submit election materials to authorised persons in the company of party agents and security officials.[140] This is in furtherance of the power of the Commission to compile, update and maintain a separate database that contains all results of elections conducted by the Commission.[141] This provision encourages seamless electioneering process and gave right to candidates or parties the power to apply for a certified true copy of same at any time.[142]

Who has the power to make announcement and declaration of result?

Before we look at this heading. It is important to state that the Act categorically prohibits all card carrying members of a political party from being appointed as Returning officers.[143] In all elections under this Act, the Collation officer or Returning officer is empowered by the law to announce election and declare a winner upon verification that number of  voters’ tally with the number of accredited voters in that polling unit as transmitted. The votes must tally with the recorded and transmitted result.[144] Where there is dispute as to the collated result, the Returning officer will use the followings to determine the correctness or otherwise: 1. called for the original copy of the disputed result; 2. check the data in the BVAS or smart card reader; and 3. check the recorded and transmitted data directly.[145] And where the dispute is not reconcilable, then the Act empowered him to re-collate and announce the result. This applies to situation of results collated at the polling unit.[146] But where the dispute rears its ugly head at the collation level, the Returning officer upon satisfying the requirements of section 64 (6) (a-d) of the Act, he is empowered to declare the winner of the election. This duty is sanctionable in nature where the Returning officer declares a false result, he has committed an offence and is liable on conviction to a fine of N5,000,000.00 or imprisonment of at least three (3) years.[147]

It is important to note that the decision of the Returning officer in terms of collation and announcement is subject to review by the Commission where there is evidence that the declaration is not declared voluntarily or was made contrary to provisions of the law, regulations or any guideline of the Commission.[148] Or it can be reviewed by a competent court or tribunal established to hear and determine election petition tribunals.[149] The declaration of results applies to elections into the office of President or Governor as the case may be by an appropriate Returning officer.[150] This provision is rightly activated by the Commission in the recently conducted in the Adamawa State Governorship Supplementary Election where the Resident Electoral Commissioner (REC) of the State, Mr  Hudu Yunusa-Ari hastily without authority declared the candidate of APC, Senator Aishatu Dahiru Binani as Governor. This declaration was voided by the Commission that the Resident Electoral Commissioner has no power to declare a winner except the Returning officer for the Governorship election which is mandated to do so by the Act after collation results must have been completed. This action of the REC is usurpation of powers of the Returning officer as rightly contended by Okoye.[151] To correct the illegality, the Commission resumed collation and did the appropriate thing through the appropriate Returning officer as contemplated by section 66 of the Act and declared Governor Ahmadu Fintiri of the PDP as Governor-elect of Adamawa State upon compliance with the Electoral Act, 2022 as the real winner of the election.[152]

It is pertinent to note that upon successful declaration in any election, the winner is entitled to be issued with a certificate of return from the Commission which is sealed within 14 days to every candidate.[153] Where the Commission refuses or neglected to do so, a certified true copy of the order of a court if there was a court case is suffice to swear-in a candidate declared as the winner of the election by that court.[154] This event succeeds the posting of election result as declared for each candidate elected or returned.[155]

All forms and documents used during election will be signed and counter-signed by the relevant officers, security officials and party agents[156] upon being recorded step-by-step right from the polling unit up to the collation centre.[157] The forms to be used for the conduct of election is determined by the Commission.[158] Thereafter, it will be taken into custody by the Commission after being returned to the Commission by the Returning officer after the election.[159] This notwithstanding, access to election documents are not restricted. A certified true copy of same be issued to any party upon an application within 14 days to the Resident Electoral Commissioner. Where it is wilfully refused by the Resident Electoral Commission, he commits an offence and is liable on conviction to a fine of N2,000,000.00 or 12 months imprisonment or both.[160]

PART FIVE (V)

Registration and regulation of political parties by the Commission

The Act empowered the Commission to register a political association as a political party, if it has satisfied the requirements set out in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as provided for under sections 221-229 and this 2022 Act. The application for registration be made not later than 12 months to all general elections.[161] The Commission will acknowledged the receipt of the application and issue a letter to that effect where all the requirements have been met.[162] The association will be registered within 60 days. If no news or information is issued to the association after 60 days and reason is advances, then it is deemed registered.[163] Where the extant requirements are not met, then the Commission within 90 days of receipt of its application inform the association in writing that its association is not registered and the reasons be made available to it.[164] Any false information given either by the association, its executive members, or principal officers, commits an offence and is liable on conviction for a fine of N5,000,000.00 for the association, N3,000,000.00 or 2 years imprisonment or both for executive or principal officers as the case may be.

The decision by the Commission not to register an association as political party is not final. It is justiciable in nature. An aggrieved association can approach the Federal High Court for redress within 14 days of receipt of the decision for non-registration.[165]

What is the effect of registering a political party?

Once it is registered, it becomes a body corporate with perpetual succession and common seal that sue and be sued with its corporate name.[166] It is mandated to maintain a register of its members both soft and hard copy and to be made available to the Commission 30 days before its party primaries, congresses or conventions as the case may be.[167] These party activities are activities that the Commission must be informed formally by all political parties at least 21 days before each activity.[168] This is geared towards monitoring the activities of political parties to be in line with the Act[169] and to bring to the notice or knowledge of the Commission the issue of nomination of candidates by political parties.[170]

Are all names and symbols allowed to be used by political parties?

The Act empowered the Commission to register names and symbols of all political parties.[171] However, the names and symbols must not be similar with name or symbol already registered or it is offensive.[172] Names or symbols of a deregistered political party will be removed from the register of the Commission.[173]

It is worthy to state that no symbol of a political party will portray the Coat of Arms of the Federation, Coat of Arms of another country, official symbol of acts of government, Armed Forces of the Federation, regalia of a Chief, tribe or ethnic group, religion or cult or even the portrait of person dead or alive.[174]

Merger of political parties

The Act legalises the merger of political parties two or more upon the approval of the Commission and after special resolution of both parties proposing the merger and approving same by both parties. However, the request signed by the National Chairmen of the merging parties is accompanied by an evidence of payment of administrative fees as fixed by the Commission.[175]

Who is qualified to be nominated by a political party?

All qualifications into all elective offices in Nigeria must be in conformity with sections 65, 66, 106, 107, 131, 132, 177 & 187 of the 1999 Constitution. No guideline, criteria, measure or regulation by any political party will be in dispute with these provisions.[176]

Which mode of primary election is known to the Act?

The Act recognizes three (3) modes of primary elections in Nigeria. One: direct primary is an open means where all members of a party are allowed to vote in all elections including presidential primary election where a designated centre for that purpose will be provided.[177] Two: indirect primary is closed election where very few selected party members will elect a candidate in a designated place or centre within the Federation or a state as the case may be.[178] Three: consensus candidate is a candidate that emerges through agreement among party members in a written form and consented to it by all aspirants.[179] However, it is prohibited under this Act that any person holding political office at whatever level to vote as a delegate or contest as an aspirant.[180]

Limitation of funds and expenses of political parties

The Act limited the amount of money each political party will have both within and without Nigeria. Where it is exceeded, it is an offence punishable in nature and such funds are subject to be forfeited to the Commission.[181] This extends to donations made to political parties by individuals.[182] To check these excesses, the Act mandated each political party to submit annual estimates to the Commission.[183] For that purpose, the Act stipulated the expenses for each candidate ranging from the president downward. Meaning up to councillorship election.[184] It is not limited to candidates alone. It includes political parties as sponsors of candidates.[185] This means political parties must make disclosure to the Commission what they received or gotten as contributions or donations.[186]

The conduct of political parties during rallies and campaigns penultimate to election

The Act empowered the Commissioner of Police of a State or the FCT to provide adequate security during rallies and political processions.[187] This includes other sister agencies to support the police during such periods.[188]However, there is no room for preventing any political party from holding rallies or political processions or meetings constitutionally guaranteed in Nigeria by anyone.[189] But, this will not translate into abusive, slanderous or injurious campaigns by anyone directly or indirectly.[190] Neither would force or violence be used by any person during campaigns or rallies or processions.[191] These campaigns and rallies will start 150 days before the general election and ends 24 hours before the election.[192] And it will be done base on regulations and rules set-out by the Commission.[193]

PART (VI)

Procedure for election to the Area Councils of the Federal Capital Territory, (FCT), Abuja

The Act provided for procedure of election into various Area Councils of the FCT. This provision applies to election into the offices of the Chairman and Councilors of the respective Area Councils. Elections are conducted when the Commission made divisions in the FCT for this purpose taking into account the inhabitants of that area upon review after 10 years intervals.[194] However, the requirement for contesting into elective offices in the Area Councils is being Nigerian citizen, registered as a voter there, 25 years of age for Councillor and 30 years of age for Chairman and Vice Chairman respectively and educated at least to School Certificate and must be sponsored by a political party.[195] Qualifications comes along with disqualification. Virtually all the grounds for disqualification set out by the 1999 Constitution to all other elective offices applies mutatus mutandis to Area Council elections.[196]

PART (VII)

The nature of electoral offences

The Act designated certain acts or omissions as electoral offences. These offences include defacing or mutilating or destroying any document meant for registration of voters.[197] To make false information or forge nomination forms or result of primary elections.[198] To make incitement or aid in disturbing political meetings of political parties.[199] To offer bribe and even the inquisitiveness to do so or even the conspiracy to induce election officials or voters or in fact to canvass for votes during election hours is an offence.[200]

The Act made it an offence to interfere with voting process and casting of votes by any person.[201] This includes voting by unregistered persons[202] during general election.

It is worthy to mention here that the Act criminalises any act or omission during the election within 300 metres of a polling unit which is prejudicial to normal election legitimate duty. Such acts includes canvassing for votes, soliciting for votes, persuading voters or using any slogan or poster or wearing facing cap at the polling unit.[203] In fact to act in a disorderly manner on the day of election is an offence which is punishable in nature.[204]

The Act equally criminalises any form of threat of voters directly or indirectly on the day of election including the use of media to achieve such threat.[205] All these acts once done during election or during build-up to general election, are criminal in nature and they are punishable with fine and imprisonment and mostly with both depending on the act done.

PART (VIII)

Determination of election petitions as a result of declaration of results

In line with section 285 (1-8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Act provided for the establishment of election petition tribunals for all elections including election in Area Councils of the FCT. The Act gave room for persons who believed that the act or manner in which returned of a winner in an election is done is through undue influence or undue manner.[206] It provided for the procedure as to how petitions would be filed, service, presentation of petition, contents of the petition, address of service, action by Secretary of Election Petition Tribunal, entry of appearance, notice of appearance etc.[207] This provision does not preclude the representation of the Commission by a Legal Practitioner of its own choice.[208]

PART (IX)

Miscellaneous provisions in the Act

The Act like all other legislation have provisions meant to guide the users particularly the Commission which is the centre-piece of the legislation. This includes the defraying of election expenses, funds or meant to be in the Fund, the remuneration of election officials engaged by the Commission.[209] How prosecution of offences under this Act would be done by whom and where? Which court has jurisdiction to try the offences? Delegation of its powers and Regulations or Subsidiary Legislation among others.[210] It also contains interpretation of all legal languages or terms used in the Legislation for easier understanding by all and sundry.[211]

CONCLUSION

The Electoral Act, 2022 is a radical departure from the Electoral Act, 2010 (as amended). It brought in novel and salient provisions meant to sanitise the Nigerian democratic, political and electoral landscape. It introduced technology into the process and criminalises many act which were hitherto not recognised as crime during election and its build-up.

  1. Electoral Act, 2022 s. 151.
  2. E A, 2022 s. 1 (1) (a).
  3. EA, 2022, s. 1 (1) (b).
  4. EA, 2022, s.  1 (2).
  5. EA, 2022 s. 2.
  6. EA, 2022 s. 2 (a).
  7. EA, 2022 s. 2 (b).
  8. EA, 2022 s. 2 (c).
  9. EA, 2022 s. 9.
  10. EA, 2022 s. 17.
  11. EA, 2022 s. 83.
  12. EA, 2022 s. 10 (3).
  13. EA, 2022 s. 15.
  14. Emmanuel N., ‘What Are The Full Functions of INEC?’ Education News, OnlineDailys.com, <https://wwwonlinedailys.com> Accessed on 22nd March, 2022.
  15. EA, 2022 s. 6 (5).
  16. EA, 2022 s. 49.
  17. EA, 2022 s. 3 (1).
  18. EA, 2022 s. 3 (2).
  19. EA, 2022 s. 3 (2) (a).
  20. EA, 2022 s. 3 (2) (b).
  21. EA, 2022 s. 3 (2) (c).
  22. EA, 2022 s. 3 (3).
  23. Emameh Gabriel, ‘We’ve Received Substantial Funds to Prepare for 2023 Elections, Says INEC,’ This Day Newspaper, Abuja, 11th March, 2022,  https://www.thisdaylive.com accessed on 24th March, 2023.
  24. EA, 2022 s. 3 (4).
  25. EA, 2022 s. 4 (1).
  26. EA, 2022 s. 4 (1) (a).
  27. EA, 2022 s. 4 (1) (b).
  28. EA, 2022 s. 4 (1) (c).
  29. EA, 2022 s. 4 (1) (d-e).
  30. EA, 2022 s. 4 (2).
  31. EA, 2022 s. 5.
  32. EA, 2022 s. 6 (1).
  33. EA, 2022 s. 6 (2) (a-b).
  34. Bode Gbadebo, ‘Buhari Appoints 19 New INEC Commissioners, Seeks Senate Confirmation,’ Leadership Newspaper, 25th July, 2022, https://www.leadership.ng accessed on 24th March, 2023.
  35. EA, 2022 s. 6 (3).
  36. EA, 2022 s. 6 (4).
  37. EA, 2022 s. 8 (1) (a).
  38. EA, 2022 s. 8 (1) (b).
  39. EA, 2022 s. 8 (1) (c).
  40. EA, 2022 s. 8 (2) (a-c).
  41. EA, 2022 s. 8 (3).
  42. EA, 2022 s. 8 (4).
  43. EA, 2022 s. 8 (5).
  44. EA, 2022 s. 9 (1).
  45. EA, 2022 s. 9 (1) (a-b).
  46. EA, 2022 s. 9 (2) (a-b) (3).
  47. EA, 2022 s. 9 (4).
  48. EA, 2022 s. 17.
  49. EA, 2022 s. 9 (5).
  50. EA, 2022 s. 9 (6).
  51. EA, 2022 s. 9 (7).
  52. EA, 2022 s. 12 (1) (a-e).
  53. EA, 2022 s. 12 (2).
  54. EA, 2022 s. 12 (3).
  55. EA, 2022 s. 14 (a-b).
  56. EA, 2022 s. 10 (2).
  57. EA, 2022 s. 11 (1).
  58. EA, 2022 s. 11 (2).
  59. EA, 2022 s. 11 (3).
  60. EA, 2022 s. 27 (1-3).
  61. EA, 2022 s. 13 (1-3).
  62. EA, 2022 s. 13 (4) (a-b).
  63. EA, 2022 s. 15.
  64. EA, 2022 s. 16 (1).
  65. EA, 2022 s. 16 (2).
  66. EA, 2022 s. 16 (3).
  67. EA, 2022 s. 16 (4); s. 18 (1-4).
  68. EA, 2022 s. 19 (1-4).
  69. EA, 2022 s. 20 (1-2).
  70. EA, 2022 s. 21.
  71. EA, 2022 s. 22 (a).
  72. EA, 2022 s. 22 (b).
  73. EA, 2022 s. 22 (c).
  74. Ibid.
  75. EA, 2022 s. 23 (1) (a-e).
  76. EA, 2022 s. 23 (2) (a-b).
  77. EA, 2022 s. 24 (1).
  78. All elections into the elective offices were held in Nganzai Local Government Area being relatively peaceful compared to Guzamala that has porous borders.
  79. James Kwen, ‘INEC Postpones Election in Enugu East over LP Candidates Death,’ Business Day Nigeria, 24th February, 2023, https://www.businessday.ng accessed on 6th April, 2023c
  80. EA, 2022 s. 24 (2-5).
  81. EA, 2022 s. 25 (1) (a-b); (2) (a-h).
  82. EA, 2022 s. 25 (3).
  83. H. Mohammed, E. Melimopoulos & V. Pietromarchi, ‘Nigeria 2023 Election: Bola Tinubu Declared Winner,’ ALJAZEERA, 1st March, 2023, https://www.aljazeera.com> accessed on 6th April, 2023.
  84. EA, 2022 s. 26 (1).
  85. EA, 2022 s. 26 (2).
  86. EA, 2022 s. 28 (1) (a-b); (4).
  87. EA, 2022 s. 29 (1-3).
  88. EA, 2022 s. 29 (5).
  89. EA, 2022 s. 29 (8).
  90. EA, 2022 s. 30 (1-2).
  91. Konduga Local Government Area is one office and as such one voter cannot nominate two aspirants at a time into this office.
  92. EA, 2022 s. 30 (3).
  93. EA, 2022 s. 35.
  94. EA, 2022 s. 31.
  95. Abdulkarim Haruna, ‘Borno Central: Kumalia No Longer a PDP Candidate, Says APC Legal Team’, The Humanitarian Times, 11 January, 2023, https://www.humanitarian-times-com accessed on 11th April, 2023.
  96. Israel Arogbonlo, ‘2023 Elections: Appeal Court Reinstates Kumalia as Borno Central PDP Senatorial Candidate,’ Nigerian Tribune, February 21st, 2023, https://www.tribuneonlineng.com accessed on 11th April, 2023.
  97. EA, 2022 ss. 33; 34 (1).
  98. EA, 2022 s. 36.
  99. EA, 2022 ss. 36; 37 & 38.
  100. EA, 2022 s.39 (1).
  101. EA, 2022 s. 40 (1-2).
  102. EA, 2022 s.41 (1-2).
  103. EA, 2022 s. 42 (1-2).
  104. EA, 2022 s. 43 (1).
  105. Ibid.
  106. EA, 2022 s. 43 (3).
  107. Hannah Johnson, ‘Why PDP, others Walked Out of Collation Centre-Melaye,’ Punch, 27th February, 2023, https://www.punchng.com accessed on 11th April, 2023.
  108. EA, 2022 ss. 44; 45.
  109. EA, 2022 s.46 (1-2).
  110. EA, 2022 s. 47 (1-2).
  111. Agency Report, ‘INEC Takes Delivery of Last Consignment of BVAS Machines,’ Premium Times, 4th January, 2023, https://www.premiumtimesng.com accessed on 11th April, 2023.
  112. EA, 2022 s. 48.
  113. This section applies to election period wherein a person can be challenged for not complying with the provisions of the Act or for being disqualified as a result of operation of the Act.
  114. EA, 2022 s. 50 (1).
  115. EA, 2022 s. 50 (2).
  116. EA, 2022 s. 63 (1-2).
  117. EA, 2022 s. 50 (3).
  118. EA, 2022 s. 52 (1).
  119. EA, 2022 s. 64 (1-3).
  120. EA, 2022 s. 53.
  121. EA, 2022 s. 54 (1).
  122. EA, 2022 s. 54 (2).
  123. EA, 2022 s. 55.
  124. EA, 2022 s. 56.
  125. EA, 2022 s. 57 (1).
  126. EA, 2022 s. 57 (2).
  127. EA, 2022 s. 57 (3-4).
  128. EA, 2022 s. 122 (1).
  129. EA, 2022 s. 58 (1).
  130. EA, 2022 s. 58 (2).
  131. EA, 2022 s. 58 (3).
  132. EA, 2022 s. 58 (4).
  133. EA, 2022 s. 58 (5).
  134. EA, 2022 s. 59.
  135. EA, 2022 s. 60 (1).
  136. EA, 2022 s. 60 (2).
  137. EA, 2022 s. 60 (3).
  138. EA, 2022 s. 60 (4-6).
  139. EA, 2022 s. 61.
  140. EA, 2022 s. 62 (1).
  141. EA, 2022 s. 62 (2).
  142. EA, 2022 s. 62 (3).
  143. EA, 2022 s. 141.
  144. EA, 2022 s. 64 (4) (a-b).
  145. EA, 2022 s. 64 (6) (a-c).
  146. EA, 2022 s. 64 (7).
  147. EA, 2022 s. 64 (8-9).
  148. EA, 2022 s. 65 (1).
  149. EA, 2022 s. 65 (2).
  150. AE, 2022 s. 66.
  151. Oluyemi Ogunseyin, ‘INEC Voids Declaration of Binani as Winner, Summons REC,’ The Guardian Newspaper, 16th April, 2023, https://guardian.ng accessed on 20th April, 2023.
  152. S. Daniel and Others, ‘Adamawa Guber Crisis: At Last, INEC Declares Fintiri Winner,’ Vanguard Newspapers, 19th April, 2023, https://www.vanguardngr.com accessed on 20th April, 2023.
  153. EA, 2022 s. 72 (1).
  154. EA, 2022 s. 72 (2).
  155. EA, 2022 s. 68.
  156. EA, 2022 s. 71.
  157. EA, 2022 s. 70.
  158. EA, 2022 s. 73 (1).
  159. EA, 2022 s. 69.
  160. EA, 2022 s. 74 (1-2).
  161. EA, 2022 s. 75 (1).
  162. EA, 2022 s. 75 (2)
  163. EA, 2022 s. 75 (4).
  164. EA, 2022 s. 75 (3).
  165. EA, 2022 s. 76.
  166. EA, 2022 s. 77 (1).
  167. EA, 2022 s. 77 (2-3).
  168. EA, 2022 s. 82 (1-5).
  169. EA, 2022 s. 83 (1-4).
  170. EA, 2022 s. 84 (1-2).
  171. EA, 2022 s. 79 (1).
  172. EA, 2022 s. 79 (2) (a-c).
  173. EA, 2022 s. 79 (3).
  174. EA, 2022 s. 79 (4) (a-c).
  175. EA, 2022 s. 81 (1-5).
  176. EA, 2022 s. 84 (3).
  177. EA, 2022 s. 84 (4) (a-c).
  178. EA, 2022 s. 84 (5-8).
  179. EA, 2022 s. 84 (9-11).
  180. EA, 2022 s. 84 (12).
  181. EA, 2022 s. 85.
  182. EA, 2022 s. 87 (1).
  183. EA, 2022 s. 86 (1).
  184. EA, 2022 s. 88 (1-11).
  185. EA, 2022 s. 89 (1-8).
  186. EA, 2022 s. 90 (1-4).
  187. EA, 2022 s. 91 (1).
  188. EA, 2022 s. 91 (2-3).
  189. EA, 2022 s. 91 (4).
  190. EA, 2022 s. 92 (1-2).
  191. EA, 2022 s. 93 (1).
  192. EA, 2022 s. 94 (1).
  193. EA, 2022 s. 95 (1).
  194. EA, 2022 ss. 98; 99; 100.
  195. EA, 2022 s. 101.
  196. EA, 2022 s. 102 (1) (a-j) (2) (a-d).
  197. EA, 2022 s. 114.
  198. EA, 2022 s. 115.
  199. EA, 2022 s. 116.
  200. EA, 2022 s. 121.
  201. EA, 2022 s. 122.
  202. EA, 2022 s. 124.
  203. EA, 2022 s. 126.
  204. EA, 2022 s. 125.
  205. EA, 2022 s, 128.
  206. EA, 2022 s. 130.
  207. First Schedule to the EA, 2022.
  208. EA, 2022 s. 139.
  209. EA, 2022 s. 142 (1-4).
  210. EA, 2022 ss. 142; 144; 145; 147; 148.
  211. EA, 2022 s. 152.

Article Statistics

Track views and downloads to measure the impact and reach of your article.

2

PDF Downloads

[views]

Metrics

PlumX

Altmetrics

Paper Submission Deadline

Subscribe to Our Newsletter

Sign up for our newsletter, to get updates regarding the Call for Paper, Papers & Research.

    Subscribe to Our Newsletter

    Sign up for our newsletter, to get updates regarding the Call for Paper, Papers & Research.