Electoral Act: Agbakoba Writes INEC

Olisa Agbakoba, a senior advocate of Nigeria (SAN), says the Independent National Electoral Commission (INEC) has the power to regulate electoral processes.

The national assembly had transmitted the electoral amendment bill to President Muhammadu Buhari on November 19, with recommendations on the electronic transmission of results and direct primaries for political parties.

But in a letter addressed to the upper and lower legislative chambers, Buhari kicked against the recommendation of direct primaries for political parties on the grounds that it “violates the spirit of democracy”.

The decision of the president generated mixed reactions from Nigerians, while some civil society organisations (CSOs) asked the national assembly to review the legislation or override the president.

In a letter addressed to Mahmood Yakubu, INEC chairman, on Tuesday, Agbakoba said: “The assumption of the national assembly that it has overriding authority with powers to regulate all aspects of elections in Nigeria is wrong. That is not the position of our law.

“The interesting but complex public conversation around the Electoral Act (Amendment) Bill, 2021, particularly as it relates to the electronic transmission of election results and the matter of direct primaries, fall in my respectful view, within the constitutional mandate of the Independent National Electoral Commission (INEC).

“The national assembly only provides a general framework for elections through the electoral act, but details such as the date and order of elections, the voting procedure including the transmission of election results, and regulation of party primaries are within the constitutional powers of INEC. Please refer to paragraph 15 of Part 1 of the Third Schedule made under section 153 (1) of the 1999 Constitution.

“The courts have long established in a plethora of cases such as PDP V. Sylva (2012) 13 NWLR (PT 1316) 85, NDP V INEC (2013) 20 WRN 1 AT 45, and Peoples Democratic Party V Timipre Sylva & ORS (2012) 13 NWLR (PT 1316) 85 AT 122 that the national assembly through the Electoral Act cannot usurp or fetter the constitutional powers of INEC.”

The senior advocate asked the electoral commission to use its constitutional power to issue guidelines on electronic voting and mode of party primaries.

“In light of the president’s decision to withhold assent to the Electoral Act (Amendment) Bill; and the uncertainty about the legal framework for the 2023 election, this is perhaps the best opportunity for INEC to stamp its authority as the constitutionally endowed regulator of the electoral process in Nigeria. This is supported by section 158 (1) and 160 (1) of the 1999 Constitution,” Agbakoba said.

“I suggest that INEC should issue guidelines on electronic voting and party primaries. Section 87 of the Electoral Act on party primaries usurps the constitutional power of INEC.

“I would also respectfully suggest the urgent need to approach the court with a view to a declaration of the role of INEC as the supreme constitutional regulator of the electoral process in Nigeria.”

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