Civil Society Statement On Drafting Errors and Cross-Referencing Gaps In the Electoral Bill 2011

Following the President’s decision to decline assent to the Electoral Bill 2021, civil society groups undertook an in-depth and comprehensive review of the bill to ensure all editorial, drafting and cross-referencing gaps are addressed. The review identified drafting errors, repetition and cross-referencing gaps in eleven sections of the bill. Cross-referencing errors were identified in five sections of the bill, grammatical errors in two sections, duplicate provisions in three sections and conflicting provisions in one section of the bill. Without doubt, these errors will occasion controversies and legal complications in the implementation of the bill when 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. Therefore, it is imperative for the National Assembly to ensure due diligence before transmitting the Electoral Bill 2021 back to the President for assent to prevent the current bill from suffering the same fate. As part civil society’s contributions to the ongoing reform process, a detailed memorandum was submitted to the leadership of the National Assembly on December 29, 2021. The memorandum highlights the affected sections and specific recommendations for addressing the errors.

As the nation prepares for the off-cycle elections in the FCT, Ekiti and Osun and the 2023 general elections, a new legal framework is required to safeguard the integrity of these elections. The Electoral Bill 2021 is replete with provisions that address electoral manipulation and the intractable and protracted problem of poor election logistics. Furthermore, the bill strengthens INEC’s financial independence and it also empowers the commission to reject falsified election results. The newly introduced timelines for key electoral activities in the bill will facilitate early electoral preparations and promote issue-based political engagement. Therefore, it is imperative for the National Assembly and the President to ensure the electoral reform process is concluded expeditiously. Any further delay in concluding the process of enacting the Electoral Bill 2021 will directly impact preparations for the 2023 General Election. As noted earlier in our previous statement, a climate of legal uncertainties will befall upcoming elections and Nigeria will lose the opportunity to test the efficacy of new innovations introduced in the electoral Bill, especially during the off-cycle elections in Ekiti and Osun, before deployment for the 2023 General Elections.

Recommendations

  1. The National Assembly should address the identified drafting errors in the eleven sections of bill before re-transmitting the Electoral Bill 2021 for Presidential Assent.
  2. The National Assembly should expeditiously conclude this process and re-transmit the Electoral Bill 2021 to the President for assent within 30 days from 21st December 2021.
  3. The President assents to the Bill within a week upon receipt from the National Assembly.
  4. Civil society groups, media, and development partners sustain the effort to safeguard the Electoral Bill from policy capture, manipulation, and subversion of the people’s will.

Signed.

  1. Yiaga Africa
  2. International Press Centre (IPC)
  3. Centre for Citizens with Disability (CCD)
  4. The Albino Foundation
  5. CLEEN Foundation
  6. Institute for Media and Society (IMS)
  7. Nigerian Women Trust Fund (NWTF)
  8. Premium Times Centre for Investigative Journalism (PTCIJ)
  9. Partners for Electoral Reform (PER)
  10. Civil Society Legislative Advocacy Centre (CISLAC)
  11. Women Advocates Research and Documentation Centre (WARDC)
  12. Nigerian Network of Non-Governmental Organizations (NNNGO)

DRAFTING AND CROSS-REFERENCING ERRORS IN THE ELECTORAL BILL 2021

S/NSECTIONMARGINAL ANNOTATIONPROVISION IN THE BILLISSUERECOMMENDATION
1.Section 24 (4)Conduct and postponement of election in emergency(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.Subsection 1 of the section was omitted resulting to improper cross-referencingFor proper cross-referencing, (2), (3) and (4) should be deleted in the Subsection 4 and replaced with (1), (2) and (3)
2.Section 50 (2)Conduct of poll by open secret ballotSubject 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 was wrongly referenced in the subsection. There is no relationship between Section 50 and Section 63 of the billTo reflect the correct cross reference, Section 63 should be replaced with Section 60 on counting of votes and forms
3.Section 64 (7) & (8)Endorsement on rejected ballot paper without official mark (7) 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).(8) 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. Subsection (3) does not relate to disputed result. It relates to statement of rejected ballotsFor 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.
4.Section 91(2) Conduct at Political rallies, and processions 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 as a member of a security agency authorized to carry arms and is specifically posted to be present at that political rally or procession.”The reference to subsection (2) is a cross referencing error.The number (2) in the provision should be deleted and replaced with (1)
5.Section 107 (3) Death of Chairman before oath of officeSection 107(3)- 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”.Grammatical errorThe alphabet “s” should be deleted from the word “dies” to read “die” 
6Section 137 and 138S. 137 – Effect of non-participation in an election S. 138 – Accelerated hearing of election petitionIt 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.
 SUB HEAD 
7.Paragraphs 4 (5), (6), (7) and (8)Content of election petitionParagraph 4(5)- 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. Paragraph 4(6)- A Petition which fails to comply with subparagraph (5) shall not be accepted for filing by the Secretary.Paragraphs 4 (5) and (7) are repetitive while Paragraphs 4 (6) and (8) contain similar provisionsParagraph 4(7) and 4(8) should be deleted
Paragraph 4(7)- 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.Paragraph 4(8)- A Petition which fails to comply with subparagraph (5) shall not be accepted for filing by the Secretary.
8.Paragraph 10(2)-Non-filling of Memorandum of AppearanceThe 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.There is a grammatical error in the spelling of filingThe word “filling” appearing in the sub-heading and sub-paragraph should be replaced with the word “filing” to address the grammatical error.
9.Paragraph 14(2)Amendment of Election Petition and reply2. 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- …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 petitionThe 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.
10.Paragraph 16 (3)Petitioner’s ReplyThe petitioner in proving his case shall have 14 days to do so and the respondent shall have 14 days to reply.Paragraph 16(3) is in conflict with the provision of paragraph 41(10) which outlines comprehensive timelines for petitioners to prove their case and respondents to file a response.To address this conflict, Paragraph 16 (3) should be deleted.
       

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