BASIC KNOWLEDGE OF THE CONSTITUTION AND ELECTORAL ACT
PRESENTATION BY JOHANNES TOBI WOJUOLA Esq MADE AT THE LEADERSHIP AND POLITICAL TRAINING CLASS, ORGANISED BY THE OYO STATE SCHOOL OF POLITICS, ON THE 26TH OF JANUARY, 2018, ATIBA HALL, OYO.
All protocols duly observed. I want to begin this session by first and foremost thanking the organizers – especially my brother Olalekan who personally invited me – for the rare opportunity to speak to my brothers and sisters here in my hometown of Oyo State on the Nigerian Constitution and our Electoral Act, two primary tools in the life of any politician: And arguably, the immediate text books that guide the day to day life of politicians.
This is my first time in Oyo State in my adult life – though I am an indigene. I was not privileged to come home as often as I would have loved to. Perhaps this has been due to the unfortunate loss of my father about two decades ago. He hails from Illora Town, in Afijio Local Government.
Forgive my digression from the core of the matter I have come here to speak on. But indigenship is a critical item in any political conversation, especially with the way our social architecture has been wired. It has become important that one’s root be well spelt out – more importantly when one is in company of his kin. But no matter how clearly spelt out I may have attempted to trace my origin by mention of my home town, our Constitution has not adequately provided a definition of indigenship in our country. And that has posed a serious question for persons with political ambitions outside their places of origin.
This draws me to the pith of this conversation: The basic knowledge of the constitution and our electoral laws. I seek that you permit me to address the two broad legal documents separately. I will start with the most senior – not necessarily by age, but by fact.
So What is the Constitution?
Most times we have found ourselves asking the question “is this constitutional?” or, “what does the constitution say about so so and so?”
Basically, the constitution of any country is the supreme law of the land – and what we lawyers would call the GRUND NORM. It is that law from which all other laws derive their existence from. Though there is the common misconception that all the laws in Nigeria are contained in the Nigerian constitution, that is not true. The constitution is not an aggregation of all Nigerian laws. Rather, the operation of the various laws in Nigeria find their basis and lifeblood from the Constitution.
It is also the legal document from which every institution in the country finds its validity. Everything is somehow linked to the constitution. Let me give the example of how a company – a private company – for instance would be linked to the Constitution. How, you may ask? For a company to exist, it must have applied for incorporation from the Corporate Affairs Commission (CAC) right? The CAC as a body was created via the Companies and Allied Matters Act (CAMA). The CAMA was a law created by the National Assembly; the National Assembly derives its powers to create laws on Companies by Item 62 of the Exclusive Legislative List the 1999 Constitution.
Over the past 100 years, Nigeria has had 9 Constitutions; from the colonial to the post-independence era. Today, the operational constitution is the 1999 Constitution.
With 8 Chapters, it is the document that by fact and law creates Nigeria, and the States and institutions that comprise the Nigerian existence. From the creation of itself, that is the Constitution, to the definition of the powers of the government, to the objectives and the principles that governments must abide by – though these provisions cannot be enforced by the courts – to citizenship, to fundamental human rights, and the establishment and empowerment of each of the arms of the government, the constitution is an explicit document that defines, and more or less establishes the Nigerian State.
I will now attempt to give a summary of key provisions of the 1999 Constitution, (as Amended)
– The Constitution is supreme – this means that any law or any action which is inconsistent or incompatible with any of the provisions contained in the Constitution is null, void and of no effect – to the extent of its inconsistency. (This is provided for in S. 1)
– The Constitution sets out the powers of the 3 arms of Government – the Executive, the Legislature, and the Judiciary. These powers are provided for in Sections 4, 5, and 6. They are further expounded in Chapters 5, 6 and 7 of the Constitution. The institutions that form these arms are further established in these chapters.
– The Constitution provides for the procedure that must be followed for the creation of a new State or for the boundary adjustment of an existing State (and Local Governments as well) (These procedures are spelt out in Sections 7 and 8 of the Constitution.)
– The Constitution provides that before any International Treaty can be effective in Nigeria, it must be enacted into law by the National Assembly.
– It provides that the composition of the Government or any of its agencies must reflect the Federal Character of Nigeria and there should be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Ministry, Department or Agency.
– The Constitution provides the procedure through which an individual can become a Nigerian citizen. (This is provided for in Chapter 3)
– It also provides the procedure through which a Nigerian Citizen can renounce his/her citizenship. (Yes, you can decide that you do not want to be a Nigerian citizen anymore – but the Government has to confirm this). This is also contained in Chapter 3.
– It provides for the fundamental rights of all Nigerian citizens. These rights include: the right to life, right to dignity, right to personal liberty, right to fair hearing, right to privacy, right to freedom of thought, conscience and religion, right to freedom of expression, right to freedom of assembly, right to freedom of movement within Nigeria, right to freedom from discrimination, right to acquire and own immovable property anywhere in Nigeria. These rights are provided for in Chapter 4 of the Constitution. They are inalienable, but they are not absolute. That is a lecture for another day.
– The 1999 Constitution provides that a person has to be at least 35 years old to be a Senator, and at least 30 years old to be a member of the House of Representatives. (See Chapter 5)
– The Constitution provides that a person has to be at least 40 years old to run for the office of President, and lays down the process for electing a President. It states that for a President to be elected he must win a simple majority of the election and have not less than one-quarter of the votes cast at the election in each of at least two-thirds of all States in Nigeria. (See Chapter 6)
– The 1999 Constitution protects the National Youth Service legislation, the Land Use Act, the Public Complaints Commission Act, and the National Securities Agencies Act, that is to say that the only way these 4 laws can be amended is to follow the procedure to amend the Constitution itself, therefore it puts these laws on the same level as the Constitution.
– The Constitution sets out the process for the impeachment of a President and his Vice, a Governor and his Deputy; it also provides for the recall of a member of the National Assembly.
– It sets out the process for creating a political party. (S. 221)
– It sets out the roles of the different Judges for all the courts, and the criteria for their eligibility. (See Chapter 7 of the Constitution)
Of course, there are many other provisions contained in the Constitution, but for want of time, I have limited it to these.
Now, let me move to the Electoral Act. I will attempt to be as brief as possible.
BASIC CONTENTS OF THE ELECTORAL ACT:
The functions of INEC are spelt out under Section 2 of the Act as conducting voter and civic education, promotion of knowledge, sound democratic election process and conduct any referendum as required by law (what is a referendum?)
The commission has a statutory fund to carry out its functions and the commission is permitted to make investments and remit interests from such investments into the fund. The sources of funds for the commission include interests from investments, aids or grants and sums and funds made available to the commission for the carrying out of its functions. S. 6 of the Act makes the establishment of an INEC office in all states and the FCT.
REGISTER OF VOTERS AND VOTERS REGISTRATION
Part III of the Act borders on voters registration and maintenance of a register. At all times in each state, the commission must compile the names of all persons entitled to vote in federal, state and local government councils. The registration and revision or update of the register must stop at least 60 days before the date of the election. The commission is also required by law to make available to each political party, the name and address of each person registered during the year.
S.12 states the qualifications for registration as a voter.
- a) is a citizen of Nigeria;
(b) has attained the age of 18 years;
(c) is ordinarily resident, works in, originates from the Local Government
Area Council Ward covered by the registration centre;
(d) presents himself to the registration officers of the Commission for
registration as a voter ; and
(e) is not subject to any legal incapacity to vote under any law, rule or regulation in force in Nigeria.
No one is permitted to register more than once.
A person who before the election, is living in a constituency different from where he registered may apply to the Resident Electoral Commissioner of the State where he is currently living for his name to be entered on the transferred voters’ list for the constituency.
A person who desires to do so must make an application in addition to his voters card not less than 30 days before the date of the election.(s.13)
Having received the application, the electoral officer will assign the person to a polling unit, issue a new voter’s card (collect the old) and inform the previous electoral officer.
S.18 provides that Whenever a Voter’s card is lost, destroyed, defaced, torn or otherwise damaged, the owner of such card shall, not less than thirty (30) days before polling day, apply in person to the Electoral Officer or any other officer duly authorized for that purpose by the Resident Electoral Commissioner, stating the circumstances of the loss, destruction, defacement or damage.
The voters register must be publicly displayed in the various states. The rights of ownership in a voters card is vested in INEC.
Essentially, all that concerns the voters card and register are within the main preserve of the INEC.
- 24 deals with offenses relating to registration of voters which include provision of false details, fake details, among others will be fined. It is also an offense by law to prevent, threaten or force anyone not to register.
DAYS OF ELECTION (s.25)
Elections into the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the Membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation shall be held in the following order-
(a) Senate and House of Representatives ;
(b) Presidential election ; and
(c) State House of Assembly and Governorship elections.
(2) Elections into the offices of the Chairman and Vice-Chairman and membership of an Area Council shall be held on the dates to be appointed by the Independent National Electoral Commission.
ANNOUNCEMENT OF ELECTION RESULTS s.27
( 1 ) The Results of all the elections shall be announced by (a) the Presiding Officer at the Polling unit;
(b) the Ward Collation Officer at the Ward Collation Centre;
(c) the Local Government or Area Council Collation Officer at the Local Government/Area Council Collation Centre;
(d) the State Collation Officer at the State Collation Centre; and
(2) The Returning Officer shall announce the result and declare the winner of the election at-
(a) Ward Collation Centre in the case of Councillorship election in the Federal Capital Territory ;
(h) Area Council Collation Centre in the case of Chairmanship and Vice Chairmanship election in the Federal Capital Territory;
(c) State Constituency Collation Centre in the case of State House of Assembly election;
(d) Federal Constituency Collation Centre in the case of election to the House of Representatives;
(e) Senatorial District Collation Centre in the case of election to the Senate;
) State Collation Centre in the case of election of a Governor of a State ;
(g) National Collation Centre in the case of election of the President; and
(h) the Chief Electoral Commissioner who shall be the Returning Officer at the Presidential election.
INEC TO REGISTER POLITICAL PARTIES
78.-( I ) A political association that complies with the provisions of the Constitution and this Act for the purposes of registration shall be registered as a political party. Provided that such application for registration as a political party shall be duly submitted to the Commission not later than 6 months before a general election.
S.87 NOMINATION BY POLITICAL PARTIES
A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
QUALIFICATION FOR AREA COUNCIL ELECTION s.106
A person shall be qualified for election under this part of this Act if he-
(a) is a citizen of Nigeria ;
(b) is registered as a voter ;
(c) has attained the age of 25 years for Councilor and 30 years for Chairman and Vice-Chairman ;
(d) is educated up to at least the School Certificate level or its equivalent ; and (e) is a member of a political party and is sponsored by that p
ELECTORAL OFFENCES
These may be at the point of registration, nomination and election all of which are spelt out under part VII of the Act. These include falsity and forgery among others. S. 117-118 of the Act.
S.119 Disorderly conduct at political meets is also punishable by law.
S.120 no one shall give his voters card to anyone apart from an INEC official in the course if his duty.
S.121 no one shall provide or use any government or public corporation vehicle to be used to a registration unit or polling unit.
- 122 Anyone who votes in place of another person (impersonation) or votes when not qualified is liable to pay a fine of #500,000 or 12 months imprisonment or both.
BRIBERY AND CONSPIRACY s.124
Anyone who gives, agrees to give, lends, agrees to lend , offers or agrees to offer money to influence votes or an election is guilty of this offense thereby liable to a fine of #500,000 or 12 months imprisonment or both.
SECRECY IN VOTING
No one at a polling booth will be required to disclose his information as to the name or number on the register (except as required by law) or state who he voted for.
OFFENCES ON ELECTION DAY (s.129)
(a) canvass for votes ;
( solicit for the vote ofany voter ;
(c) persuade any voter not to vote for any particular candidate ;
(d). persuade any voter not to vote at the election ;
(e) shout slogans concerning the election ;
( be in possession of any offensive weapon or wear any dress or have any facial or other decoration .which in any event is calculated to intimidate voters ;
(g) exhibit, wear or tender any notice, symbol, photograph or party card referring to the election ;
(h) use any vehicle bearing the colour or symbol of a political party by any means whatsoever ;
(i) loiter without lawful excuse after voting or after being refused to vote ; (i) snatch or destroy any election materials ; and
(k) blare siren.
(L) hold public meetings within the vicinity of the polling center
(m) wear any emblem relating to a political party.
SECRECY OF BALLOT
- 148 of the Act provides that no voter will be required in any legal proceedings to state the party he voted for.
WHO CANNOT BE AN ELECTION OFFICER? S.146
No person holding an elective office to which this Act relates or a
registered member of a political party shall be eligible for or be appointed to carry out the duties of a Returning Officer, an Electoral Officer, Presiding Officer or a poll clerk and any officer appointed to carry out any of those duties shall be ineligible for nomination as a candidate for election while he continues to hold any such appointment.
JURISDICTION OVER ELECTORAL MATTERS
Electoral disputes are sui generis, to this extent, they are adjudicated upon by special tribunals set up called; Election Petition Tribunals (s.133)
(a) in the case of Presidential or Governorship election, the court of Appeal ; and
(b) in the case of any other elections under this Act, the election tribunal established under the Constitution or by this Act.
(3) The election tribunals shall-
(a) be constituted not later than 14 days before the election ; and
(b) when constituted, open their registries for business 7 days before the election .
The petition is to be presented by the petitioner (the aggrieved party. May be the person who lost the election or his political party) or through his lawyer.
Offenses committed in relation to this Act are triable in a Magistrate court or high court which the offense is committed.(s.150)
Pre election matters are triable at the Federal High Court for example, issues arising out of primary elections.
SUMMARY OF THE BILL TO AMEND THE ELECTORAL ACT
The bill is to, among other things, to provide adequate time for INEC to issue notices, receive nomination of candidates from political parties and ensure proper conduct of political parties.
What do you think?