A CRITICAL APPRAISAL OF ELECTION LAWS IN NIGERIA

ABSTRACT

The electoral process is a total process that includes registration of voters, identifying the political parties to be voted for, voting, counting of votes, and declaration of election results. This process is the foundation of civil societies. A strong civil society is vital and needed to serve as the bedrock of a stable democracy. It represents the reservoir of resources — political, economic, cultural, and moral — to complement and, when necessary, to check the power of the state. A dynamic and diverse civil society directly stimulates social and political participation, increasing the involvement and commitment of citizens and promoting an appreciation of the obligations, as well as the rights, of citizenship. By providing many potential avenues for political, economic and social expression, a society with a rich associational life gives people a stronger stake in the social order. This in turn, creates a climate within which mutual respect, tolerance, negotiation, and compromise actually make sense, and flourish.

Nigeria claims to be democratic and seeks to prove that under the banner of representation and multi-party political systems. Elections are used as a means by which representatives and policies are decided. The choice between political parties or individual candidates is made through elections. It should be noted that the public function implies elections. This electoral process is the peaceful transfer of power and legitimate exercise of authority. It demands active, broad-based citizen participation. It is the election that actually determines who shall wield power for a number of years as specified by the constitution. An electoral system may be defined as a process in which the mode of coming to power or the change of government is decided in a particular country at a given time.This paper is going to examine the development of several election laws that has been developed and the progression of the laws.

TABLE OF CONTENTS

COVER PAGE……………………………………………………………………………………I

CERTIFICATION PAGE……………………………………………………………………II

ABSTRACT………………………………………………………………………………………..III

TABLE OF CONTENTS……………………………………………………………………..IV

DEDICATION…………………………………………………………………………………….VII

ACKNOWLEDGEMENT……………………………………………………………………VIII

TABLE OF CASES……………………………………………………………………………..1X

TABLE OF STATUTES………………………………………………………………………XI

LIST OF ABBREVIATIONS……………………………………………………………….XIII

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0 INTRODUCTION……………………………………………………………………………………… 1

1.1.0 BACKGROUND TO THE STUDY…………………………………………………………… 4

1.2.0 OBJECTIVES OF THE STUDY………………………………………………………………. 6

1.3.0 FOCUS OF THE STUDY…………………………………………………………………………. 6

1.4.0 SCOPE OF THE STUDY………………………………………………………………………….. 7

1.5.0 METHODOLOGY……………………………………………………………………………………… 7

1.6.0 LITERATURE REVIEW……………………………………………………………………………. 7

1.7.0 DEFINITION OF TERMS………………………………………………………………………….. 9

1.8.0 CONCLUSION…………………………………………………………………………………………….. 13

CHAPTER TWO

HISTORICAL FRAMEWORK OF ELECTORAL LAW IN NIGERIA

2.O.O.INTRODUCTION……………………………………………………………………………………….. 14

2.1.0. HISTORICAL BACKGROUND OF ELECTION LAWS IN NIGERIA………….. 15

2.2.0. THE POST INDEPENDENCE POLITICAL SETTING………………………………. 19

2.2.1. THE FIRST REPUBLIC…………………………………………………………………………….. 19

2.2.2. THE SECOND- THE FOURTH REBUPLIC………………………………………………. 20

2.3.0. PROGRESSION OF POST COLONIAL LAWS………………………………………….. 22

2.4.0. NATIONAL ASSEMBLY ,GOVERNORSHIP,HOUSE OF ASSEMBLY

ELECTION PETITIONS UNDER THE 1999 CONSTITUTION……………………………. 31

2.4.1. PRESIDENTIAL ELECTION UNDER THE 1999 CONSTITUTION………….. 35

2.5.0. CONCLUSION……………………………………………………………………………………………. 36

CHAPTER THREE

MAJOR ISSUES IN ELECTORAL LAW-INTRA-PARTY DISPUTES AND

JUSTICIABILITY , QUALIFICATIONS AND DISQUALIFICATIONS.

3.0.0.INTRODUCTION…………………………………………………………………………………………. 37

3.1.0.LEGAL STATUS OF A POLITICAL PARTY………………………………………………. 37

3.1.1.CONSTITUTIONAL FRAMEWORK FOR POLITICAL PARTY RULES

AND REGULATIONS…………………………………………………………………………………………… 38

CHAPTER FOUR

ELECTORAL LAW REFORM

4.0.0.INTRODUCTION…………………………………………………………………………………………. 52

4.1.0.EVENTS THAT LED TO THE REFORM…………………………………………………… 54

4.1.1.THE ELECTORAL REFORM COMMITTEE………………………………………………. 58

4.2.0.A REVIEW OF THE ELECTORAL ACT 2010 AS GAZETTED………………….. 66

4.3.0.PROPOSED AMENDMENT OF THE ELECTORAL ACT 2010…………………. 69

4.4.0.CONCLUSION…………………………………………………………………………………………….. 72

CHAPTER FIVE

GENERAL CONCLUSION

5.0.0.CONCLUSION…………………………………………………………………………………………….. 74

5.1.0.RECOMMENDATION…………………………………………………………………………………… 76

BIBLIOGRAPHY

ARTICLES ON THE INTERNET………………………………………………………………………….. 80

BOOKS…………………………………………………………………………………………………………………. 81

TABLE OF CASES

NIGERIA

• Abdul Kadir v Mamman (2003)FWLR (Part 170) 1353; (2003)14NWLR(Part 839)1
• Adeleke&ors v Oyo State House of Assembly & Others (2007)All FWLR(Part 345)211;(2007)All FWLR (Part 353)3
• Adisa v Olayiwola (2006)6 SC(Part II)47
• AnselemOnejeme v Hon (Mrs)EuchariAzodo& Others(2005)All FWLR(Part 261)365
• Aregbesola& Others v Oyinlola& Others Reported in the Daily Champion ,2^nd November,2010,pg10
• Attorney General of Abia State and 35 Others v Attorney General of Federation(2002)6NWLR(Part 763)264
• Attorney General of the Federation v All Nigerian Peoples Party(2003)15NWLR(Part844)600
• Barrister Vincent Osakwe v INEC & Others(2005)All FWLR(Part 261)325
• Chukwu v Icheonwo (1999)NWLR(Part 600)587,596
• Dalhatu v Turaki (2003)FWLR(Part 174)247;(2003)15NWLR(pt.843)310
• Hon P.C Onuoha v Chief R.B.K. Okafor& Others(1983)SCNLR244
• INEC v Musa [2003] 10 WRN 1 at 40-41 ;(2003) NELR PT. 806, 72
• Mimiko v Agagu Reported by the Court of Appeal in CA/EPT/342A/08
• Nwachukwu v Eneogwe(1999)4NWLR(PART600)629
• Ojukwu v Onwudiwe(1984)1SCNLR247
• Ogboru v Uduaghan
• Shodeinde v The Registered Trustee of the Ahmadiya Movement in Islam(1980)1-2 SC 225

UNITED STATE OF AMERICA

• Baker v Carr 369US 186,82
• Flast v Cohen 392 US 83,88 Sct.. 1942 20 LED 2^nd 947
• Powell v McComark , 395 US 486 ,89 Sct (1944)L. ed. 2^nd 491
• Westberry v Sanders 376 US 17

TABLE OF STATUTE

NIGERIA

• African Charter On Human and Peoples’ Rights(Ratification and Enforcement)Act. Cap 10 Laws of the Federation,2004
• Constitution of the Federal Republic of Nigeria (Promulgation) Decree No 24,1999
• Electoral Act 1982. Cap 15,Laws of the Federation 1990
• Electoral Act 2010 ( As gazetted)
• Electoral Reform Committee Report,Volume One,2010
• Local Government Elections Decree No.7 of 1997
• Local Government (Basic Constitutional and Transitional Provisions)Decree No.36 of 1998
• National Assembly(Basic Constitutional and Transitional Provisions)Decree No.5 of 1999
• Presidential Election(Basic and Constitutional and Transitional Provisions)Decree No.6 of 1999.
• State Government(Basic Constitutional and Transitional Provisions)Decree No. 4 of 1999
• State Government(Basic Constitutional and Transitional Provision) Decree No 50 of 1991
• Transition to Civil Rule(Political Programme) Decree No.34 of 1998,Political Parties(Registration and Activities) Decree No.35 of 1999
• Transition to Civil Rule (Political Parties Registration and Activities) Decree of 1991
• Transition to Civil Rule (Political Parties Registration and Activities) Decree of 1991

TABLE OF TREATIES

• African Charter on Human and People’s Right

LIST OF ABBREVIATIONS

CHAPTER ONE

GENERAL INTRODUCTION

1..0.0:INTRODUCTION

Elections have become the most acceptable process of changing leadership in any given political system in the present day. The Black’s law dictionary defines election as the process of selecting a person to occupy a position or office, usually a public office. Another definition is the one which defines election as the act of selecting someone or something; the exercise of deliberate choice.²Election is the cornerstone of democracy and it is essentially a contest for the votes of adult members of the society by aspirants to political office. It is worthy of note however that the concept of elections is quite recent in the history of man as it can be traced to the emergence of democratic government. Professor W. Phillips in his book, power and choice; an introduction to political science said: In the long swing of the history , elections with broad mass participation are rather new. Such elections originated with democratic government, which means that they came along at the end of the eighteenth century and the beginning of the nineteenth. Today, elections are widespread around the world, even though a number of world’s states are not democracies’³

1  Blacks’ Law Dictionary, Seventh ed. p.536

2  WordWeb Dictionary (Electronic Dictionary)

3  Prof. W. Phillips Shivelly,Power and Choice;An Introduction to Political Science(Us Mc Graw,2003)p.253

From the foregoing , it is clear that elections and democracy are intertwined ,it is therefore appropriate to touch on democracy which can be defined as a form of representative government based on the consent of the people. Jimmy carter, former president of United States said Democracy is like the experience of life itself-always changing, infinite in its variety, sometimes turbulent and all the more valuable for being tested⁴

The principal medium for translating the people’s consent into government authority is the holding of free and fair elections. However, history has shown that it is usually difficult to hold free and fair elections, even the united states, which is the model for other democracies was faulted in the year 2000, when the elections that led to the victory of president bush was alleged to be marred by irregularities in the state of Florida. In Nwachukwu vs. Eneogwe;it was held that :

Once an election is found, substantially, not to be free and electorate, either by violence or intimidation, has not been allowed freely to cast their votes, the election where such has occurred, ought to, and must be nullified and a fresh one conducted Nigeria has had its fair share of electoral disputes, the presidential and governorship elections of 1999, 2003 and 2007 were reported to be marred by irregularities in vote tabulation and reporting of results by both foreign and local observers.

Electoral law is that branch of law that seeks to regulate the electoral system which ranges from voters’ registration, political parties registration to collation of results. According to

4  Jimmy Carter ,Former President of the United State

5  Nwachukwu v Eneogwe(1999)4NWLR(Pt600)629; Ojukwu v Onwudiwe (1984)1SCNLR247

Wikipedia, electoral law is a branch of constitutional law which regulates the electoral process.

In this study, the focus will be on Nigeria’s electoral law which has grown a lot from its pre independence period. Nigeria is on the eve of another election which if successful will mark its third uninterrupted transition of power since the last military intervention in 1999. Premised on this, the importance of electoral law in Nigeria cannot be over emphasised. The Nigerian electoral law can be traced back to 1922, with the introduction of the ‘elective principle’ by the then governor-general , Sir Hugh Clifford who in the constitution of 1922 which was named after him made provisions for the election of four representatives to represent the Lagos and Calabar region, however, only male adults were allowed to vote. This ‘elective principle’ is very crucial in the discussion of Nigerian electoral law because it gave room for the formation of political parties which although not like the contemporary political parties, served its purpose back then.⁶ The 1946 constitution by Sir Arthur Richard did not alter the ‘elective principle’ of 1922, this position changed in 1951 when Sir Macpherson became the governor-general, there were more electoral seats and the people were better represented in the colonial government. The Nigerian electoral law and system has since evolved as both legal and institutional framework are put in place to regulate the system and targeted towards ensuring free and fair elections.

Bon Nwakanma SAN and NgoziOlehi ,Laws Governing Elections and Election Petitions,.p. I,2

1.1.0:BACKGROUND TO THE STUDY

Nigeria’s electoral development is closely tied to its political experience. Pre-colonial and colonial era did not offer any notable contribution in this regard. Nigeria is a nation of more than 300 ethnic groups and each had a distinct system of operation before the arrival of the British colonial masters through which security and welfare of tribesmen were organized. It was clearly different from the colonial package of political governance of the southern and northern protectorates which were amalgamated in 1914 to become what stands today as Nigeria.

Upon the amalgamation of the southern and northern protectorates in 1914, Lord Lugard became the first governor-general of Nigeria. The white colonial masters were in charge of all the arms of government but from 1922 when Sir Hugh Clifford became the governor-general, an elective principle was introduced whereby four out of forty-six member legislative council made up of twenty-seven unofficial and nineteen official members, this was significant because it was the first of its kind. The elective principle expanded and developed all through the pre-independence times with the various constitutional provisions that came after the Richard’s Constitution .

After independence, Nigeria’s electoral system became more expansive and sophisticated. Various institutions were established to guide and regulate the electioneering process, alongside these institutions, various laws were being promulgated to oversee the electoral process.

With a population of over 120million and many expatriate communities across the globe, the largest economy in west Africa, and great political importance in the region ,the African continent , and the global stage, events which affect the future and stability of Nigeria affects the entire world .Nigeria being a democratic state especially since recent times, has to have elections from time to time so as to decide who rules the affairs of the nation and who represents the various ethnics in decision making from the local to the national level. The success of the election to the outlined posts is important not just to the citizens but also to the world in general.

Nigeria faces a major challenge when it comes to holding of elections that are free and fair. The most free and fair and peacefully conducted elections were those in 1959, 1979, and 1993 and the most chaotic, violent and disputed were those in 1964 and 1983. It is also noteworthy that Nigeria has had its fair share of political instability as a result of military intervention at different times in her political history at different times since her independence in 1960.the 2007 election was not without its shortcomings too, in fact, premised on the outcome of the 2007 elections and the reactions of the candidates and citizens which sprung the agitation for a change in the electoral law, the late president UmaruYar’adua set up an electoral reform committee. However, this is not the first time of such committee or panel at different points in the Nigerian electoral history, various committees have been formed to revise the regulating the electoral system.

From the days of the Clifford’s constitution’s elective principle to the present day, legal and institutional framework has been put in place to regulate the electoral process. Such institutions established include NEC ,FEDECO and now we have INEC. The constitution also provides for election tribunals that hear cases bordering on electoral disputes. On this groundwork, one can say the Nigerian electoral system and electoral law has come a long way notwithstanding the shortcomings.

1.2.0:OBJECTIVES OF THIS STUDY

The broad objective of this study is to appreciate Nigeria’s political dynamism in relation to her electoral development with special focus on the challenges of the electoral system and different provisions made so as to solve existing problems and forestall future ones, the lapses of such provisions made and suggestions on what can be done to rectify such lapses.

1.3.0:FOCUS OF THE STUDY

In order to meet the broad objectives of this study , I will focus on the following specific objectives:

• To critically study the historical background of elections in Nigeria with a view to understanding and appreciating the legal and constitutional framework put in place to regulate the electoral process from past times to the present times.
• Highlight the challenges facing the electoral system and the laws and suggest ways to which the electoral laws and system can be more reliable than what we have today.

1.4.0:SCOPE OF THE STUDY

This study covers from the colonial period from post colonial period i.e. 1922 to the present day. The post colonial period is very important in this study because 1922 marked the beginning of electoral process with the introduction of elective principle by Sir Hugh Clifford. The study will also cover the various electoral process ranging from voter’s registration to party systems, this will be done with the view of making the research a diligent one. The study will also talk about electoral disputes making use of important cases which serve as major authorities in the present day electoral law.

1.5.0:METHODOLOGY

The system of method followed in this study is the use of secondary data such as resource materials from the internet, textbooks, law journals, newspapers and law reports .

1.7.0:DEFINITION OF TERMS

With a view to having a better understanding of this study, certain words have to be well defined, these words are words that will occur from time to time in this study and are also of great importance in electoral law. These words are as explained below;

Democracy: democracy is a political form of government in which governing power isderived from the people by consensus (consensus democracy), by direct referendum(direct democracy) or by means of elected representative of the people(representative democracy). Even though there is no specific, universally accepted definition of ‘democracy’, equality and development have been identified as important characteristics of democracy since ancient times.⁷ Abraham Lincoln defined democracy as ‘the government of the people by the people and for the people’⁸. Its origin can be traced to the Greek and then democracy meant rule by the people. The majority rule is often described as a characteristics feature of democracy, but without governmental or constitutional protections of individual liberties, it is possible for a minority of individuals to be oppressed by the tyranny of the majority. An essential process in representative democracies is competitive elections that are both substantially and

procedurally. Another major concept that needs to be defined is election, election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which representative democracy operates since the 17^th century . It has also been defined as an organised event at which somebody is chosen by vote for something, especially a public office¹⁰. Election can also be defined as a procedure that allows members of an organisation or community to chose representatives who will positions of authority within it. The most important elections select the leaders of local, state and national governments. The chance to decide who will govern t these levels serves as an opportunity for the public to make choices about the policies, programmes and future directions of government action. In Nigeria,election is done/held periodically, earlier in ‘Democracy Conference’. Innertemple.org.uk US President,Abraham Lincoln(1809-1865)

• Substantive fairness means equality among all citizens in all respects i.e equality in chances, strting point etc.
• Arrow ,Kenneth J. 1963. Social Choice and Individual values. 2^nd New Haven ,CT,Yale University Press,P.10

history, Nigeria has undergone some instabilities in her political settings, nevertheless, since 1999, election has been held at every four years interval . Sections 132, 133, 134 of the 1999 Constitution of The Federal Republic of Nigeria govern the election into the office of a president. In a truly democratic state, the usefulness and importance of election cannot be overemphasized.

The right to vote is viewed by some as a more civil right dependent on law, while othercommentators see it as a fundamental political right. Boyer in his classic work classified the right to vote as a fundamental political right as it produces the most direct verdict by the

citizens on performance of those who govern them.¹¹ In West Berry v Sanders,¹² the court testified to the fundamental character of the right to vote when it said:

No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights even the most basic are illusory if the right to vote is undetermined.

The right to vote is generally perceived as inextricably intertwined, with the concept of democracy . According to Venkatarangaiya: ‘if popular control of government through the mechanism of elections is the essence of democracy, it follows that the control should be by all people and not by any few of them . Unless it can be proved that those who are excluded are either unfit or incompetent to exercise their vote… the basis of democracy is the principle

• Patrick Boyer, Political Rights; The Legal Framework of Elections in Canada, 1981,n.p,121
• 376 US 17 of equality of all citizens and that to give the right to vote to same and to deny it to others is in conflict with this principle and is unjust’.¹³

The right to vote in Nigeria has a rather chequered history . Universal adult suffrage became a reality in Nigeria in the 1979 elections when women in the North were allowed to vote for the first time in elections.

Free and fair election is an election in which the political system and processes guarantee that each voter will be allowed to vote according to his conscience. A free and fair election will essentiality be devoid of any form of thuggery, violence of any kind,oppression, intimidation, impersonation and corrupt practices. Statistics show that the freest and the fairest election in Nigeria was the annulled election of 1993.

Electoral dispute rises whenever a candidate in an election complains about the fairness of such election. Election rigging is when an election is conducted in an untruthful manner.

Whenever electoral dispute arises, the parties involved are heard in election tribunals,this is as provided for in section 285 of the constitution of Federal Republic of Nigeria,1999.

Electoral law has been defined as a branch of constitutional law which regulates the electoral process. In order to have free and fair elections, certain laws have to be put in place . Electoral law seeks to regulate the electoral system, this system includes voter’s age,voter’s registration, screening of candidates,political parties registration, screening of candidates,political parties’ registration, overseeing electoral activities to collation of results.

13 Free and Fair Elections,wikipedia In Nigeria, we have the Electoral Act and also the constitution as the chief authority in electoral matters.

1.8.0:CONCLUSION

Electoral law as a branch of law is very important. Democracy, which is also representative government, is being practised by most developed nations of the world, thereby, making it possible for the people of a state to vote for a person that represents their interest. Election being the tool through which democracy can be achieved is guided by electoral law which is the focus of this study.

The development of electoral law in Nigeria will be discussed in full details in the subsequent chapters of this study.

In discussing the electoral law, a careful look will be taken at its lapses and growth interchangeably. This chapter introduces all that will be discoursed in the course of this study.

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