After months of uncertainty, the Independent National Electoral Commission has hopefully released the last time table and schedule of activities that will be used for the conduct of the 2011 elections.

The release of the time table on the 23rd day of November 2010 supersedes the earlier time table released by the Independent National Electoral Commission which time table was based on the 1st amendment to the Constitution of the Federal Republic of Nigeria now steamed in constitutional and legal controversy.

From the sequence of events culminating in the Governorship and State Assembly elections, it is clear that the Electoral Management Body strategically based the time table on the Constitution of the Federal Republic of Nigeria, 1999.

This is important because it will be risky to base the conduct of the 2011 elections on a 1st or 2nd amendment to the Constitution which the Federal High Court declared inchoate pending Presidential assent.

If eventually the Court of Appeal and I presume the Supreme Court rules that the 1st Amendment to the 1999 Constitution and the 2nd amendment does not need Presidential Assent, the Electoral Management Body will still be within the constitutionally prescribed time frame for the conduct of the 2011 elections.

However, there are issues with the time table released by the Electoral Management Body that must be addressed by all the stakeholders in order to guarantee the smooth conduct of the 2011 elections. Although most of the activities in the time table are sequenced in accordance with the Electoral Act, 2010, if they are not properly managed and sequenced may throw the electoral process out of gear and create unintended consequences for the electoral process.

The Conduct of Party Primaries
Ordinarily, the conduct of party primaries is supposed to be the internal affair of individual political parties. This is because, political parties are to regulate their own affairs and only submit to procedural and legal regulation when they present candidates for election after their party primaries. This should have been ideal but the Nigerian political environment is different. In the Nigerian environment, the conduct of party primaries has a direct bearing on the conduct of the main elections. The moment party primaries end in controversy and confusion, it has a way of rubbing off badly on the Electoral Management Body and the conduct of the general elections.

Prior to the case of Onuoha v. Okafor (1983) 2 SCNLR 244 and that of Dalhatu v. Turaki (2003)15NWLR (843)310 the conduct of party primaries was regarded by the Courts as the internal affair of each political party outside the purview of the Courts.

In the case of Onuoha v. Okafor the Supreme Court stated emphatically that the matter in controversy in the appeal is whether the Court has jurisdiction to entertain a claim whereby it can compel a political party to sponsor one candidate of the self same political party.

If a court could do this, it would in effect be managing the political party for the members thereof. The issue of who should be a candidate of a given political party at any election is clearly a political one to be determined by the rules and constitution of the said party. It is thus a domestic issue and not such as would be justifiable in a court of law.

However, constant and sustained abuse of internal party democracy especially in the conduct of party primaries and the nomination and substitution of candidates necessitated the intervention of the National Assembly and the Courts.

On the basis of this the Honourable Justice Oguntade in the case of Ugwu v. Ararume( 2007) 12 NWLR(Part 1048) 365 stated clearly that An Observer of the Nigerian political scene today easily discovers that the failure of the political parties to ensure intra-party democracy and live by the provisions of their Constitutions as to the emergence of candidates for elections is one of the major causes of the serious problems hindering the enthronement of a representative  government in the country.

If a political party was not to be bound by the provisions of its Constitution concerning party primaries, why would there be the need to send members of the parties aspiring to be candidates for an electoral office on a wild goose chase upon which they dissipate their resources and waste time. Would it not have been made better sense in that event for the political parties to just set out the criteria for the emergence of their candidates for electoral offices and then reserve for themselves (i.e. the parties) the ultimate power to decide who should contest and who should not.

Based on these observations, the Honourable Justice Oguntade then held that My humble view on the decision in Onuoha v. Okafor(supra) is that the same has ceased to useful guiding light in view of the present state of our political life.

I have no doubt that the reasoning in the case might have been useful at the time the decision was made. It seems to me however, that in view of the contemporary occurrences in the political scene, the decision needs to be reviewed or somewhat modified. If the political parties, in their own wisdom had written it into their Constitutions that their candidates for election would emerge from their party primaries it becomes unacceptable that the court should run away from the duty to enforce compliance with the provisions of the parties constitution.

In an attempt to address aspects of the lack of internal democracy in political parties, the National Assembly amended and added section 34(2) to the Electoral Act, 2006 stipulating that any political parties that intends to substitute its candidate must give cogent and verifiable reasons for so doing. The Supreme Court gave a stamp of approval to this in the case of Amaechi v. I.N.E.C (2008) 5 NWLR (Part 1080)227.

These interventions did not seem to address the concrete issues relating to the conduct of party primaries and the nomination of candidates for election. The National Assembly has addressed and seems to be addressing these issues as can be seen in section 87 of the Electoral Act, 2010.

Unfortunately, there are issues in section 87 of the Electoral Act, 2010 that has the tendency to put the electoral management body in a very awkward situation. By the provisions of section 222(c) of the 1999 Constitution, no association by whatever name called shall function as a political party, unless a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission.

This means that the party Constitution registered with the Independent National Electoral Commission is the Constitution to be used in the conduct of Party Primaries. The said Constitution must have before the conduct of the said primaries clearly outlined the rules and procedure for the democratic election of delegates to vote at the convention, congress or meeting.”

This means that where the Constitution of a party contains individuals that have been excluded from voting at Special Congress, such a party must call for a Congress to amend its constitution to conform to the intendment of section 87 of the Act.

Coterminous to this is whether section 87(7) of the Electoral Act, 2010 is superior to section 222(c) of the 1999 Constitution which has not been amended and which is an existing law. It seems to me that the Constitution of Political Parties has constitutional flavour and when deposited with the Electoral Management Body supersedes the provisions of the Electoral Act, 2010.

This means that unless a Political party amends its Constitution to conform to the provisions of section 87 of the Act, it will be acting ultra vires its own constitution with constitutional flavour. It also seems to me that section 87(8) of the Electoral Act, 2010 that excludes political appointees from voting and being delegates at the Convention of Political parties is also ultra vires. The only way they can be removed as delegates is through a properly convened meeting of the parties called to amend such constitutions.

Section 87(9) of the Electoral Act, 2010 is also problematic. It allows the Commission to reject the candidate of a political party that does not meet the provisions of section 87 of the Act. The section does not specify how this can be done and whether the Commission can advise the Party to conduct fresh primaries and whether such can be done within the prescribed time lines. This is said against the background of the fact that the moment the Electoral Management Body gets involved in the qualification and disqualification of candidates, it gets sucked into the politics of the parties and this diverts its attention from the main task of conducting elections.

Section 87(11) also provides that nothing in section 87 shall empower the Courts to stop the holding of primaries or general election under the Act pending the determination of any suit filed challenging anything relating to section 87 of the Act. The National Assembly  ought to have known that the provisions of section 87(11) which ousts the jurisdiction of Courts from stopping the holding of primaries or general election under the Act is in conflict with the provisions of section 4(8) of the Constitution which provides that the exercise of legislative powers by the National Assembly or by a House of Assembly  shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that oust or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

Voters Registration and the Submission of List of Candidates
Voters’ registration is a key component of the electoral process. It is the heart and soul of the process and any eligible person not captured during the exercise cannot exercise the democratic franchise of participating in the election. It is on the basis of this that the 1999 Constitution gives the Independent National Electoral Commission the power to arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for purposes of any election under the Constitution.

Section 9 of the Electoral Act, 2010 envisages that Nigeria has a voters register. It enjoins the Commission to compile, maintain and update, on a continuous basis a National Register of Voters which shall contain the names of all persons entitled to vote in any Federal, State or Local Government or Area Council election.

Section 9(5) also states that the registration of voters, updating and revision of the register of voters shall stop not later than 60 days before any election covered by the Act.

However, section 10(4) of the Electoral Act, 2004 provides that when a general election is notified by the Commission (as was done on the 23rd day of November 2010) the current official register of voters certified by the Commission shall be the official voters register for those elections.

By the time table released by the Commission, the registration of voters will commence on the 15th day of January and end on the 29th day of January 2011. Thereafter, the Commission will display the register for claims and objections on the 3rd day of February through the 8th day of February 2011.

However, by the provisions of section 32(1) of the Act, a candidate for an election shall be nominated in writing by such number of persons whose names appear on the register of voters in the constituency as the Commission may prescribe.

This nomination must get to the Independent National Electoral Commission 60 days before the date appointed for the general elections. This is in accordance with section 31(1) of the Act.  It seems to me that the register cannot be any other register other than that register referred to in section 10(4) of the Act which is the register in existence as at the time the Commission notifies the general public of the pending election.

This is because if the Commission relies on the provisions of section 20 of the Act as the period for the publication and certification of the register, it must read the said section in conjunction with section 10(6) of the Act which provides that as soon as claims and objections have been dealt with or the period for making claims and objections has expired, the supplementary list shall be included in the revised register, which shall be certified by the Commission as the official register of voters for the purposes of any election conducted under the Act and supersedes all previous registers.

The point here is that the Electoral Management Body must certify a register as the official register of voters for use in the election before the 21st day of February 2011 being the last day of submission of nominations forms by political parties for all elections. It is submitted that the official Register of voters for the election to be published by the Independent National Electoral Commission on the 2nd day of March 2011 cannot be the register that has been certified for the election.

The implication of this is that the existing voters register compiled by the Independent National Electoral Commission in 2006 is the official register for the 2011 elections. What will be embarked upon on the 15th day of January 2011 is the updating and revision of the existing voters register. Unless, this position is clarified, it means that candidates nominated in accordance with section 32(1) of the Act by the 31st day of January 2011 have been nominated by persons that are not on the official voters register certified by the Commission since the Commission will only certify a voter’s register on the 2nd day of March 2011. The implication is obvious.

Submission of Names of Party Agents for All Elections.

Section 45 of the Act provides that each Political Party may by notice in writing addressed to the Electoral Officer of the Local Government or Area Council, appoint a polling agent for each polling unit and collation centre in the Local Government or Area Council for which it has a candidate and the notice shall set out the name and address of the polling agent and be given to the Electoral Officer at least 7 days before the date fixed for the election.

This is a very important and germane provision and locates a party agent to a particular polling unit. It also makes for proper identification of Party Agents for purposes of election petition and in cases of violence at polling units. The Electoral Officers in the various Local Governments must take this assignment as an article of faith as it has the tendency to limit challenges faced from party agents who run from one polling unit to the other causing crisis and mayhem.

Publication of Notice of Poll
With the publication of the Notice of Poll for all elections in accordance with the provisions of section 46 of the Act, the Commission shall specify the day and hours of the poll, the persons entitled to vote and the location of polling units. This means that it is the Commission that has the discretion to establish and determine the location of polling units as provided in section 42 of the Act. It is important for the Commission to use the period of the registration of voters to carry out limited adjustment of polling units.

Some polling units are located in inappropriate places like mechanics workshops, motor parks, churches, houses of traditional rulers, people’s houses and local eateries. This leads to the appropriation of some of the polling units by such individuals and in cases of violence, innocent persons lose their houses and valuable. Security agents also have difficulty in controlling the proceedings in those difficult places.  It is also important that the Presiding Officers must be trained and shown the location of their Polling Units before Election Day to avoid a situation where Presiding Officers spend the whole day trying to locate the Polling Unit assigned to them.

Concluding Remarks
It is important that all the stakeholders in the electoral process should show understanding and assist the Independent National Electoral Commission give the Nigerian people something to be proud of in terms of credible elections.

By Festus Okoye Esq.Constitutional Lawyer & Executive Director, Human Rights Monitor