It is now clear that the federal government leadership, starting from President Obasanjo, followed by Senate President Anyim, House Speaker Na’Abba and a coterie of others are steadily eating their words over the recently enacted Electoral Law 2001. In essence, it is a foregone conclusion that the smuggled-in paragraph of Clause 80(1) severely restricting the participation of new parties in Federal and state elections will be removed by amendment concurred to by both Houses, or the whole Electoral Act may in fact be repealed.

That development is an admission that on this issue, our entire government leadership has been caught with its hands in the cookie jar. It has not been transparent, has lacked integrity, and in the words of the President himself, might have engaged in a "criminal act." The current childish charade of having these adults accuse each other over the radio and on the pages of the newspapers and even Internet is most embarrassing. They should just take their lumps, amend or repeal the Act, get the President to sign a new or amended non-criminal bill, and get on with it, and spare us all the embarrassment of radio jingles.

Be that as it may, we must be carried away with the euphoria of the reversal, because the removal of that clause is not the end of controversy concerning the Law. There are at least four problems:

extension of tenure of local government councilors

The action of the National Assembly to harmonize the term of local government councils from three years to four years still remains, even if the offending phrase in Clause 80 is expunged. That extension is not only without INTRINSIC MERIT, but the power to do so also EXCEEDS constitutional mandate, that mandate being in the province of the States and the State Independent Electoral Commissions (SIEC). To compound matters, BACKDATING the law in a manner to affect the CURRENT officers is odious, and should not stand. Thus there is a double illegality here: the National Assembly has not only acted illegally in making the extension, but in doing so it over-reached itself by applying it to current office holders.

Setting of the election date of the local government council elections

We must be reminded that the furore over Clause 80 heightened not simply because of the 10% local-government elections "must win" provision, but because of the fact that those elections were to be held LAST, following federal and state elections, in reversal of the 1998/1999 order of elections. Technically, therefore, new parties were not going to be able to participate in Federal and state elections until the year 2007. Now that that "must win" provision is to be removed, and notwithstanding the right of the National Assembly to set the order of elections under its aegis, it remains to be discussed whether local government elections are part of that aegis. The 1999 Constitution says "No." It states CLEARLY that the "organization, supervision and undertaking" of Federal and State elections are under the aegis of the Independent National Electoral Commission (INEC), while the organization, supervision and undertaking of local government elections are under the aegis of the State Independent Electoral Commissions. Each is mandated only to assist/advise each other in terms of voter registration, period. It follows, pari pasu, that only the State Assemblies, working in concert with their SIECs, can fix the dates of local government elections, and the INEC/National Assembly should butt out of that function. [See article: " Electoral Act Maneuvers Most Unconstitutional" where I suggested that the State Assemblies should simply set their LG election dates BY LAW to precede Federal and State elections.] For election integrity, INEC and the SIECs should merely use their staff to monitor each other’s elections, period, for example making sure that those who registered are allowed to vote. In these monitoring functions, they should be joined by national and international election monitoring individuals and non-governmental organizations.

the imposition of a 15% barrier of sponsorship for party registration

There is something intrinsically undemocratic in requiring this percentage sponsorship, quite apart of setting a winning percentage. It violates a simple right of association while it tries to enforce a national spread in party composition and sponsorship. It is this enforced association that has led to strange bedfellows congregating in various parties – in 1979 and in 1999!

voting rights of Nigerians abroad and dual citizens

Completely lost in the cacophony of the debate so far has been the unconstitutional denial of the rights of Nigerian citizens abroad to vote, as well as the denial of the right of dual citizens to CONTEST for positions, quite apart from WINNING the contests. The reason for the continued denial of such rights – for example as enunciated by some Senators that it is a punishment for staying abroad and incentive to return home – is palpably untenable. Fears of logistical problems as well as potential contributions to electoral fraud, fair as those are, pale in significance to the principle that a citizen of Nigeria is a citizen wherever he resides, and should not be denied his or her rights.

While lobbying on these issues continues on the ground quietly, a law suit in the nearest future that will require the moral and financial support of Nigerians in the Diaspora cannot be ruled out, and is in fact more likely than not, from reading the political tea-leaves. One would hope that Nigerians in the Diaspora will truly step up to the plate and put their money where their mouth is, otherwise the battle would be lost before it begins.

With respect to the 15% barrier of sponsorship, I have a few counter-suggestions that I believe are more consistent with freedom of association, liberal democracy and true federalism:

On the Federal level, we should allow ANY PARTY to exist, but INEC should list on the Federal

ballots ONLY THOSE parties that have satisfied a certain percentage (say 15%) of sponsorship in the Federal elections (for President, and the National Assembly) by close of nominations, which should be at least 3 months to the elections themselves. We should then also allow write-in candidates. That allowance automatically enables Independent candidacy, as well as the participation of the candidates of those parties that did not satisfy the 15% sponsorship listing cut.

(ii) On the state level, the Electoral law should allow ANY PARTY to exist, but just as for the Federal elections, the SIECs should list on the State election ballots ONLY those who have satisfied a certain percentage of sponsorships (say 25%) in the state elections (for Governor, state assemblies and local government elections) by close of nominations. Again, we should allow write-in candidates. I might even add here that it might be advantageous to stipulate that local government elections should not be run on a PARTY BASIS. Some counties in the US do that, and there is probably good reason to consider it in our country.]

(iii) The advantage of wide sponsorship is not only the greater probability of winning more seats, but the federal government should refund after close of nominations but before the elections (say) 50% of party expenditures to those who sponsor a certain percentage. After the elections, government should then refund the rest of the expenditure (say) 50% to those parties that WIN a certain percentage (5%) of all seats OR (say) 10% of popular votes.

Finally, a thought about the spread of election days. Making a CENTRAL ELECTORAL BODY like INEC, even with the assistance of SIECs, to run 1 Presidential election, 36 gubernatorial elections, 469 National Assembly elections, 774 local council chairmen, 8811 councillors, and about 1500 state assembly elections in one day would be a tall order in any country, not to talk about Nigeria. Consequently, the current plan to spread the various elections out over three days separated by a six-week period is understandable.

Nevertheless, I believe that the elections can be held on one day – and thereby save quite some money - if and only if they are STAGGERED somehow in terms of time and space. [See article: " Staggering Our Electoral Process" .] In this scenario, LG elections dates as determined strictly by States and their SIECs can be held "off season" compared with state and federal elections that are organized by INEC. With respect to INEC, it should concern itself only with half of each of the gubernatorial, national assembly and state assemblies elections be held together in any given year, while the other half should be held in two years. The presidential election can be held along with one of the set of national assembly elections. With that staggered plan, any of these sets of elections could be held in one day, even though again, for monitoring purposes, it may actually be better to still continue to hold them in two, possibly three days.

I have made this election staggering proposal before, complete with how to apportion the various seats to be held in the different years in a fair manner. However, it is a controversial plan precisely because it will require the extension of some current terms as well as some "serious" constitutional amendments. Nevertheless, without such a proposal being considered, I am concerned:

(a) about the upheaval which so many election campaigns and contests held throughout the country in the same period does present, leading not only to possible government paralysis, but potentially to wholesale changes in representation and consequent loss of institutional memory;

(b) about the fact that INEC and SIECs get to do NOTHING but preparations in the four inter-election years, and then suddenly have to do A LOT during the elections. I think that by getting them to prepare for elections every two years, they get to fine-tune their craft, starting from voter registration. Imagine every four years - long enough for the last INEC/SIEC chairman to resign or die, and for a new one to have to learn the ropes all over again, and long enough for a huge increase in new voters’ registration requirements!

So those are my thoughts on this issue, to be delivered to the National Assembly as they get the opportunity to review this Electoral Law anew. We should not let the National Assembly get off easily with respect to this Electoral Act, and we should vigorously pursue suggestions that are TRULY consistent with freedom of association, liberal democracy and true federalism.

MONDAY QUARTERBACKING: Staggering Our Electoral Process [June 18, 2001]

Sunday Musings: The National Assembly, the President and the Electoral Law [December 9, 2001]

FRIDAY ESSAY: Electoral Act Maneuvers Most Unconstitutional [December 14, 2001]