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Electoral Bill: CSOs Write National Assembly, Highlight Cross-referencing Errors

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A group of eight civil society organisations (CSOs) have written a letter to the senate president, Dr. Ahmad Lawan, Speaker of the House of Representatives, Hon. Femi Gbajabiamila, and heads of election-related committees in the National Assembly, highlighting errors in the Electoral Act Amendment Bill that can make it inefficient and ineffectual.

The groups made their case in a letter titled, “The drafting errors in the Electoral Bill 2021”, and signed by Yiaga Africa, International Press Centre (IPC), Centre for Citizens with Disability (CCD), The Albino Foundation, CLEEN Foundation, Institute for Media and Society (IMS), Nigerian Women Trust Fund (NWTF), and Premium Times Centre for Investigative Journalism (PTCIJ).

In the letter dated December 29, 2921, the CSOs, said, “The undersigned Civil Society Organisations, following an in-depth and comprehensive review of the Electoral Bill 2021 for which the president declined assent, wish to draw the attention of the National Assembly to identified drafting errors and cross-referencing gaps in the bill.

“We urge the National Assembly to address these errors and gaps before re-submitting the bill for presidential assent to eliminate any form of ambiguity or legal complications in the application of the bill when it is enacted.

“We recall that in August 2018, President Buhari premised his decision of declining assent to the 2018 Electoral (Amendment) Bill on certain drafting errors and cross-referencing gaps in the bill. It is imperative for the National Assembly to ensure due diligence before transference of the Electoral Bill 2021 back to the president for assent to prevent it from suffering the same fate.”

The CSOs reiterated their earlier call on the National Assembly to expeditiously conclude this process and re-transmit the Electoral Bill 2021 to the president for assent within 30 days from December 21, 2021.

They explained that any further delay in concluding the process of enacting the Electoral Bill 2021 would directly impact INEC’s preparations for the 2023 general election.

The CSOs identified the drafting and cross-referencing errors and gaps in the Electoral Bill 2021 are as follows:

Section 24 (4), which is about the conduct and postponement of election in emergency situations, they said (4) where the commission appoints a substituted date in accordance with subsections (2), (3) and (4), there shall be no return for the election until polling has taken place in the area or areas affected.

In Subsection 1 of the section, they claimed was omitted, resulting to improper cross-referencing. For proper cross-referencing, they contended that, (2), (3) and (4) should be deleted in the Subsection 4 and replaced with (1), (2) and (3).

In Section 50 (2), which is about the conduct of poll by open secret ballot, subject to Section 63 of this Act, voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the commission. Section 63, they claimed, was wrongly referenced in the subsection. There is no relationship between Section 50 and Section 63 of the bill, they added.

To reflect the correct cross reference, Section 63, they said, should be replaced with Section 60 on counting of votes and forms and in Section 64 (7) & (8), endorsement on rejected ballot paper without official mark.

The groups said if the disputed result under subsection (3) were otherwise found not to be correct, the Collation Officer or Returning Officer shall re-collate and announce a new result, using the information in subsection (3) (a-d).

Where the dispute under subsection (3) arose at the level of collation and the Returning Officer has satisfied the provision of subsection (3), the Returning Officer shall accordingly declare the winner of the election. The reference to subsection (3) in the section is incorrect, they contended, arguing that Subsection (3) does not relate to disputed result, because it relates to statement of rejected ballots.

“For proper cross-referencing, the reference to subsection (3) should be changed to subsection (6a-d), which relates to procedure for determining the correctness of a disputed election result,” they explained.

In section Section 91(2), which deals with conduct at political rallies, and processions, the group said, “Section 91(2), for the purpose of Subsection (2), a person shall be deemed to be acting in pursuance of a lawful duty if he is acting in his capacity as a police officer or as a member of a security agency authorised to carry arms and is specifically posted to be present at that political rally or procession.”

The letter claimed, “The reference to subsection (2) is a cross referencing error. The number (2) in the provision should be deleted and replaced with (1).

“In section 107 (3), which concerns death of Chairman before oath of office, Section 107(3), the letter said, ‘Where the persons duly elected as Chairman and Vice-Chairman of an Area Council dies before taking and subscribing the oath of allegiance and oath of office during which period the Area Council has not been inaugurated, the commission shall within 21 days conduct an election to fill vacancies.”

The groups noted the grammatical error in the section, saying, “the alphabet “s” should be deleted from the word “dies” to read “die”.

In Section 137 and 138, on the effect of non-participation in an election, the group said in Section 138, which is accelerated hearing of election petition, that, “It shall not be necessary for a party, who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.

“Although both sections have different marginal notations, Section 138 is a repetition of Section 137. Section 137 should be reviewed to align with the marginal note while Section 138 should be maintained, because it reflects the intended content of the section.”

According the civil society groups, paragraphs 4 (5), (6), (7) and (8), dealing with content of election petition, paragraph 4(5) states that the election petition shall be accompanied by “(a) a list of the witnesses that the petitioner intends to call in proof of the petition; (b) written statements on oath of the witnesses; and (c) copies or list of every document to be relied on at the hearing of the petition.”

In paragraph 4(6), a petition, which fails to comply with subparagraph (5), shall not be accepted for filing by the Secretary. They noted that while paragraphs 4 (5) and (7) were repetitive, paragraphs 4 (6) and (8) contained similar provisions. To that extent, paragraph 4(7) and 4(8) should be deleted

Paragraph 4(7) states that the election petition shall be accompanied by (a) a list of the witnesses that the petitioner intends to call in proof of the petition; (b) written statements on oath of the witnesses; and (c) copies or list of every document to be relied on at the hearing of the petition. Yet, paragraph 4(8), they said, is a petition, which fails to comply with subparagraph (5) shall not be accepted for filing by the Secretary.

In paragraph 10(2), on Non-filling of Memorandum of Appearance, the CSOs said the non-filling of a memorandum of appearance shall not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the registry within a reasonable time, but, in any case, not later than 21 days from the receipt of the election petition.

Accordingly, the letter stated that there was a grammatical error in the spelling of filing. The word “filling” appearing in the sub-heading and sub-paragraph should be replaced with the word “filing” to address the grammatical error.

In paragraph 14(2), which addresses the amendment of election oetition and reply, the letter said after the expiration of the time limited by (a) Section 134 (1) of this Act for presenting the election petition, no amendment shall be made.

But the CSOs observed, “The provision contains a cross referencing error. The timeline provided for the filing of election petition is not contained in Section 134(1) of the bill. Section 134 provides grounds of petition.

“The phrase ‘Section 134(1) of the Act’ should be deleted and replaced with the phrase ‘Section 285 (5) of the Constitution and Section 132(7) of this Act’, which provides the timeline for filing election petitions.”

In paragraph 16 (3), which focuses on petitioner’s reply, the CSOs said the petitioner in proving his case shall have 14 days to do so and the respondent shall have 14 days to reply.

But according to the groups, the paragraph 16(3) is in conflict with the provisions of paragraph 41(10), which outlines comprehensive timelines for petitioners to prove their case and respondents to file a response, adding that to address this conflict, paragraph 16 (3) should be deleted.

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