2010 Electoral Act Will Be Difficult To Use– Dr. Olisa Agbakoba (SAN)

Worse still, the lawmakers are on a long vacation that will hopefully end September 25. Former president of the Nigeria Bar Association (NBA) and a renowned civil right campaigner, Dr. Olisa Agbakoba (SAN) in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE says it raises a red flag about the possibility of having a smooth and transparent transition next year. He also spoke on other topical issues. Barely six months to the 2019 general elections, the Presidency and the National Assembly are in a face-off over the Electoral Act Amendment Bill 2018. The president has declined assent to the bill three times. What does this portend for the general elections? The legal framework for the election is obviously the electoral act. The other important framework is the budget. Five months to go, neither the budget for the Independent National Electoral Commission (INEC) nor the legal framework, is in place. Then one begins to wonder whether the elections will take place. I think it is political if you ask me. The president declines assent on the grounds of what his special assistant calls irregularities. I don’t think it is a good reason, and that the president doesn’t have the discretion to say, “Well, I accept this bill but subject to these errors, I will assent.” That would have been better than a dissent because a dissent without reason means that he has something substantial against the legislation. But having heard Senator Ita Enang on a Channels TV programme, I couldn’t understand what the bases were. Senator Enyinnaya Abaribe was clearer when he said the reason was electronic voting, which the president doesn’t like. That is a speculation. I am happy that the National Assembly has said that immediately the bill is returned and the irregularities pointed out, it will be cleaned up and sent back to the presidency. But it is not good enough. Five months to go, the National Assembly and the Presidency are in their traditional historical face-off: whether the president can assent and whether the National Assembly can review the appropriation bill. So, it is a deep-seated quarrel. I would have expected the executive and the legislature to swallow their pride in the interest of Nigeria. And that takes me back to the question of whether the president is really ready for the elections. Is he ready? I don’t understand whether he is ready, because five months to go, we are still tinkering with the basic groundwork. The red flags have to go up. Some people believe that rather than not being ready, the presidency perhaps prefers to use the 2010 Electoral Act? The 2010 Electoral Act will be difficult to use if it has been amended into a bill. It ceases to exist. But assuming that is the case, why can’t he just say so? Why all this rigmarole? If he says, “I prefer the 2010 Electoral Act,” then we will know. So, it doesn’t help whether it is 2010 or the current amendment. My point is, I don’t understand how two major arms of the government, the executive and legislature, will not, in the larger interest of Nigeria, understand that they should put aside their egos and assure us that 2019 is going to be feasible. But right now, I am a big doubting Thomas. The opposition believes that the 2018 Electoral Act eliminates things like underage voting and captures the issue of electronic voting, which was the basis upon which most of the election petitions were dismissed the last time at the courts. So, what do you think about this? Absolutely! What the National Assembly did was to say, all those constraints that made the Supreme Court dismiss the petitions arising from the 2015 elections, let us look at them and make the new amendment to conform to the decisions of the court. What is wrong with that? That is what they have done but the president has dissented. I wish his reasons for doing that were clear, but they are not. So, one is left to speculate, but I think the underlying point is that it is not good enough for Nigeria. It is not good for our democracy that, five months into elections, neither the legal framework nor INEC’s budget is ready. The National Assembly has said the N143 billion earmarked for INEC is also captured in the new electoral bill. Does that mean if that bill is not signed, the funds meant for procurement and logistics for INEC would not be available? Clearly the funds will not be available, because the electoral bill must capture the logistical framework; electronic voting and all that are in the budget. So, if we use the 2010 Act, the budget assigned to INEC by the National Assembly would be irrelevant. I am also shocked that the National Assembly went into recess without dealing with these crucial issues. Whether that was to forestall the impeachment of Bukola Saraki or not is another question. But what underlines all this is that the politicians on both sides of the divide are looking to their own personal opportunities rather than the national interest and I do hope that they will remember that what is at stake is Nigeria’s democracy. Section 25 (6) of the 2010 Electoral Act provides that elections to the Office of Presidency shall be held on a date earlier than 150 days, translating to about five months and not later than 30 days before the expiration of the tenure of the holder of that office. The election has been slated for February next year, which is about six months now. The National Assembly is to resume on September 25. Do you think that Nigerians have every reason to be apprehensive of not having a crisis-free transition? It is clear! If you look at the timetable set out by the constitution and the electoral act, time is of the essence. Why should we wait until five or six months to begin to rush things? I am not talking about Nigerians, but for me, it has raised a very serious red flag. And I put the blame on both the National Assembly and the Presidency because if they had Nigeria’s interest at heart, they would see beyond their own personal political aspirations. Right now, the way I see it, they are just thinking about who will be president, governor, president of Senate and all that. And that does no good. So what do you expect the National Assembly to do in this circumstance? They have presented the bill three times and on each occasion, assents were declined. I can understand that, but the National Assembly ought not to be in recess at this time so that people can say they are at work because we are faced with grievous issues. It is like a person who has a major medical crisis, and he gets to the hospital and they say it is closed. The fellow will not be happy. So as a Nigerian, how can I be happy if the National Assembly is on recess when things are burning and they should be at work? Had they been at work, as soon as the president declined assent and gave those reasons, they would fix it and send it back. In that way, we would see their sense of urgency. How can they be on holiday when the country is burning? It is not right! Assuming they are at work and still not ready to accept whatever it is the presidency wants; don’t you think this kind of political face-off would continue? It will continue. But I think that both the National Assembly and the Presidency do not understand that they are working for us. And if they are working for us, I don’t expect to hear the reasons why the president has declined assent from a television programme. It is not good enough. The National Assembly owes me, as their employer. We employ them, so they need to explain what is happening so that they carry us along. It is as if it is the executive versus the National Assembly and we are excluded. We just hear the news. But we are part of it. We have a role to play in putting pressure on either the National Assembly or the president to do the needful. Why don’t we have a role to play? Section 132 (2) of the 1999 Constitution makes reference to a time-frame within which election should be conducted. It also proposes a time-frame shorter than what is in the electoral act and we know that where there is a conflict, the constitution prevails. Does that not even raise more apprehension why this thing should be hastened up now? The National Assembly and the presidency are not showing enough interest. I don’t know whether they are getting proper advice, but if they read the constitution, they would know that the constitution is superior to the act. They can immediately set a pathway that will deliver free, stress-free and credible elections. But right now, everything is jumbled – no money allocated and timelines are not in conformity with the constitution. Egos are at play, the president was in China and the National Assembly has been on holidays and we are just looking. That was the point I was making earlier. Nigerians are so disempowered because a lot of the major elements of the Nigerian society have been either bought or they are silent. Legal profession is not active. The church denominations and the clerics are not active. The traditional rulers are not active. What do you expect them to do? To speak out! Do they have instruments of coercion or defence? No, but what is known about civil society is that when they speak, it creates an impression. They can shape the way society functions. Let me go back to a feasible example. When Sani Abacha decided that he would be a presidential candidate of five political parties, that was a world record, you may say! He organsed his two million-man march in Abuja. We organised our five million-man march in Lagos. We were not five million people. We were only about 70 but that was the first indication that Abacha’s phantom that he would be presidential candidate of five leprous political parties was not true. But that was in the military era? It is better now. If we could do it in the military era, now there is more space. That is an assumption? It is not an assumption. I have been in both. I have been 40 years in this. I have been 25 years in military. I have also been in this civilian process. The biggest challenge is that the key actors in our society are silent. Culled from Guardian]]>