Port Harcourt Lawyer Reveals ‘Selfish, Mischievous’ Booby Traps In Electoral Act 2022 

A Port Harcourt-based lawyer, Achinike William-Wobodo, has called the attention of Nigerians to loopholes in the Electoral Act Amendment Bill that was recently signed into law by President Muhammadu Buhari. 

The Electoral Act 2022 is the new legal framework that will henceforth guide the conduct of elections by the Independent National Electoral Commission (INEC). 

It is aimed at improving the quality and credibility of elections conducted by the electoral umpire. 

But while the new legislation addressed certain deficiencies in the repealed Electoral Act, William-Wobodo, a Nigerian lawyer, has pointed out what he called “mischiefs” in the new document. 

The lawyer identified Sections 29(5) and 134 as not only “discriminatory” but allegedly “protective of wrongdoers” who may rely on loopholes in the new Act to commit electoral fraud and get away with it. 

The aforementioned sections have to do with the regulation of pre-election and post-election disputes in the country. 

According to William-Wobodo, members of the National Assembly selfishly replaced some clauses in the new Electoral Act to protect themselves or prevent Nigerians or aggrieved political aspirants from challenging malfactions in elections. 

For instance, Section 29 (5) has removed the jurisdiction of State and Federal High Courts to entertain and determine pre-election disputes filed by non-candidates to challenge submission of false documents to INEC by candidates in an election. 

This implies that members of the public cannot challenge a candidate that submits false information or document INEC, as the new Electoral Act now sees this as intra-party dispute or affair. 

Subsection five of that section provides thus: “(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false. 

Six reads, “(6) Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election.”

William-Wobodo said, “Section 31(5) of the Electoral Act 2011 (as amended) which is the provision that enable a citizen to bring an action against any candidate who presents forged certificate has been substituted with Section 29(5) [Electoral Act 2022). In the old Act, the subject of the clause is “Any person”. Which the Supreme Court had given its literary meaning of any person or every person. So, you and I, ordinary Nigerians could challenge a politician who presented forged certificates. That way, a citizen who know that a governor had submitted forged certificate, or that a candidate does not have a university certificate which he claims he has (Toronto University Saga), may go to court and seek that candidate’s disqualification.

“In the new Act, that has been circumscribed. It now reads: “Any Aspirant who participated in the primaries of his political party”, ie, the same primaries as the man who presented the forged certificate. Thus, if you did not participate with that governor in the same primaries, you cannot raise the issue of his presentation of forged certificate or the nonexistence of his certificate. That way, they are limiting Nigerians from challenging presentation of forged certificates. It is easier to settle a co-aspirant to withdraw the suit than it is to settle ordinary Nigerians. They are merely protecting themselves with their forged certificates. Some a Governor on my mind.”

The lawyer further explained that, “…section 134, which is the new section that provides for the grounds for the challenge of an election has deliberately and mischievously deleted the most potent and less difficult to prove ground. The ground which says that where a person is lawfully nominated by a political party but unlawfully excluded from the election, he could bring a petition. Why should such a ground be deleted? In the coming days, you will observe situations where a political party with the strongest candidate for an election will not be represented on the ballot paper on the Election Day and since it is not a ground for challenging an election, that candidate and political party will be helpless because they will have no ground to challenge that election. 

“Nigerian lawmakers seem not to appropriate the fact that “election” is an advanced form of conflict resolution mechanisms, which enables countries resolve conflicts over disputations as to who becomes the leader of the country. Where they continue, by their selfish motive, to make the rule book of that mechanism discriminatory, depriving, protective of wrongdoers, they make the people less confident in the mechanism and may resort to self help. Lack of satisfaction in election and its processes has led to civil disturbance in some countries. Nigeria must avoid that.”

William-Wobodo further recommended that future amendments to the Electoral Act should address the situation where a petitioner would be required prove a claim after he/she may have established a misconduct in an election. 

“I will continue to advocate the same, that the burden of proving regularity or compliance in any election should be shifted to INEC. Once a petitioner is able to establish, prima facie, that there was some kind of non-compliance with the Electoral Act, the onus should be on INEC to prove that it complied with the Act. Once that is done, INEC will take additional steps to ensure that they comply with the Act in the conduct of an election. 

“The law as it is presently, enables INEC to assist a party to rig an election, declare the rigged results for that party. Then, when an aggrieved party petitions to the court or tribunal, and because the onus is on the petitioner to prove the irregularities and non-compliance, the same INEC will begin to frustrate the petitioner by not releasing CTC of Results and denying access to electoral documents, etc. If the onus were on INEC to prove regularity and compliance with the Act, INEC will be the one struggling so hard to bring in the electoral documents to court to justify the regularity of its election. 

“Today, electoral malpractice is “the norm” of our electoral system. Every political party plans on winning elections based on malpractices, be it intimidation, vote-buying, ballot snatching, compromise of electoral officers, etc. Therefore INEC should have the burden of proving that the election which it conducted was free of these “norms”. This should be our law until such a time when these present “norms” become what they truly are: abnormal. Then and only then should INEC be relieved of that burdens,” he said.