Politics of PIB/Electoral Bill

Barring any emergency, lawmaking activities will be on suspension in the National Assembly until 14 September 2021 as lawmakers in both chambers suspended plenary late last week as they embarked on their annual recess.

While adjourning the upper chamber, Senate President Ahmad Lawan had congratulated the lawmakers on achieving two key issues on the legislative agenda of the 9th Senate – passage of the Petroleum Industry Bill and the amendment to the Electoral Act 2010. “You will all recall that at the beginning of the 9th Senate, we resolved to have a legislative agenda and in our legislative agenda, the Petroleum Industry Bill (PIB) and the amendment of the Electoral Act 2010 are very key, central and they are pillars of what we have set for ourselves to do. We have achieved those two issues that we set for ourselves. We have passed the Conference Committee report on the PIB,” Lawan said.

But the lawmakers left behind loads of controversies on the two Bills that will surely remain talking points across the country even well beyond their expected date of return.

Indeed, the lawmakers had ended the session on a cantankerous note as the two laws divided them along party and regional lines. In the Electoral Act, the point of division among the lawmakers was the inclusion or non-inclusion of electronic transmission of election results while for the PIB, the source of contention was section 240, which prescribed how much to be given to host communities under the Host Communities Trust Fund to be set up under the new law.

The two clauses in both laws had become contentious after changes to the initial provisions in the two Bills were allegedly made.

A newspaper report had indicated a surreptitious change to the provision that will empower the Independent National Electoral Commission, INEC to transmit election results from polling stations electronically in the Electoral Bill by the All Progressives Congress, APC leadership of the National Assembly.

The report had put some of the lawmakers, especially of the opposition Peoples Democratic Party, PDP, as well as members of the civil society organisations on the alert. Indeed, the publication had attracted protests from opposition lawmakers as well as members of the civil society who argued that ensuring that results are electronically transmitted from polling units will give the 2023 election greater credibility.

The contention was that the provision will stop the manipulation of election results between the polling units and the collation centres as witnessed when INEC experimented with it during the Edo and Ondo governorship elections in 2020.

The commission had uploaded the results directly from each polling station to dedicated websites to the acclaim of members of the civil society and the political parties, especially the opposition PDP during the two elections.

Therefore, the PDP had accused APC of perfecting the plot to rig the 2023 election with the news that the provision for electoral transmission of results has been removed from the amended Electoral Act.

Members of the Civil Society had also embarked on protests, warning against the removal of the provision.

For the PIB, stakeholders in the oil-producing Niger Delta had during the public hearing on the Bill demanded that the contribution by the oil companies to the Trust Fund should be pegged at 10 per cent in the least.

But both chambers of the National Assembly had initially put the contribution at five per cent, until about three weeks ago when it was reduced to three per cent when the Bill was being considered clause by clause preparatory to its passage on the floor of the Senate.

Though the House had retained the five per cent when the Bill during its consideration of the Bill clause by clause, there were fears the lawmakers may also go the way of their colleagues in the Red Chamber during the harmonization of the provisions.

Thus, lawmakers from the Niger Delta who had expressed outrage over the reduction in the Senate in both chambers were also on the alert to ensure that this did not happen.

The two scenarios set the stage for the fiasco with which both chambers of the National Assembly ended its session last week.

In the Senate, the fiasco was set off during the clause by clause consideration of the Electoral Amendment Bill. When the senators got to clause 52(3) of the bill, that provided for electronic transmission of election results, Senator Abdullahi Sabi (APC, Niger North) had asked for an amendment to the clause which read inter alia “The Commission may transmit results by electronic means where and when practicable.”

He asked that the section should be amended to read, “that the Commission may consider the electronic transmission of election results provided the network coverage in the area concerned is adjudged to be conducive for transmission of results, by the National Communication Commission (NCC).” The amendment will give the NCC the power to interfere in the conduct of elections.

But he was countered by Senator Albert Bassey (PDP Akwa Ibom North-east) who argued that rather, the amendment should indicate that INEC may allow for electronic transmission of results where and when practicable.

PDP senators led by Minority Leader, Eyinnaya Abaribe rejected moves by the Senate President to rule in favour of the amendment suggested by the APC lawmaker both on the floor and at the executive division. Instead, Abaribe called for division – a request that the lawmakers should vote on the contentious provision.

While he was supported by most members of his party in the chamber, he was opposed by Senate Chief Whip, Senator Orji Uzor Kalu (APC, Abia).

Toeing the path of his party members, Orji had cautioned that electronic transmission of results cannot work in the Southeast where he and Abaribe hailed from because of lack of stable electricity and poor telecommunications coverage.

Lawan was forced to put the issue to vote at the end of which 52 lawmakers, mostly members of APC, voted for the amendment proposed by Abdullahi, while 28 voted for the original provision of the clause.

As announced by the Clerk, 28 senators, including Kalu who was in the chambers before the commencement of voting did not participate in the voting. Those who didn’t vote were Senators Theodore Orji (PDP, Abia), Gabriel Suswam (PDP, Benue North East), Ifeanyi Ubah (YPP, Anambra South) and Stella Oduah (PDP, Anambra North).

There were insinuations that the absentee senators who are under prosecution of the Economic and Financial Crimes Commission (EFCC) for alleged corruption ran away so as not to incur the anger of the ruling party.

Also, all the three senators from Ogun State and two from Oyo State left the chamber before the commencement of voting.

In the House of Representatives, the lawmakers had postponed the passage of the Electoral Bill last Thursday after consideration of the same clause resulted in rowdiness among members.

The House had called for presentations on the possibility of electronic transmission of results from the officials of the Nigerian Communication Commission (NCC) for the next day.

But even after the presentation by NCC on Friday, the majority members of APC still rejected electronic transmission of election results, leading members of PDP to stage a walkout.

Indeed, Rep Ahmed Wase, the Deputy Speaker who presided over the consideration of the report at the Committee of a Whole ruled that the section had been earlier been decided on at the rowdy session of the previous day, contrary to the expectations of the opposition party.

He added that the gavel had been banged on Thursday over the issue and there was no need to revisit it as those in support of the manual transmission of election results had the “Yes” as against those opposed to it.

PDP members of the House also walked out after the report of the Conference Committee on the PIB passed the Bill, allowing three per cent to host communities.

Seriake Dickson, the Senator representing Bayelsa West had also on Thursday led some of his colleagues to walk out of the chamber after the Conference Report on the harmonization of PIB indicated that the three per cent allocation to the host community will be retained.

Before he walked out, the former governor of Bayelsa State had raised a point of order on the decision to retain a three per cent equity share for host communities which he described as an ‘obnoxious decision against the people of the Niger Delta.

But the Senate president had insisted that the session was meant to approve the conference committee’s report on the PIB and not to suggest new amendments.

The Bayelsa West Senator later addressed journalists at the National Assembly.

“I walked out with some colleagues the very day this was passed and as I informed the Senate president, even during the president’s dinner when we were seated there to honour the president, and we got the report of this conference committee, I walked out, some senators also left.

“Today (yesterday), we left because I don’t want history to record us on the wrong side. Some of the senators who followed me, I thank all of them.

“We don’t want history to record that we were part of this obnoxious decision against the producing communities and our people. It is also a decision that is not helpful to the national cause. This is a story that has just started and I hope it ends well for Nigeria,” Dickson said.

Criticisms have trailed the National Assembly treatment of the bills with the lawmakers, especially of the ruling APC accused of wanton partisanship in matters that call for patriotism.

Critics say that the action of the lawmakers from the South who voted for the amendments against the transmission of electronic transmission of results and the five per cent host community fund was against the declaration of their governors that they will support the original provisions in the Bills at the meeting in Lagos.

There are also fears that the allocation to PIB may also lead to an angry reaction from the Niger Delta.

For the Electoral Act, the fears are that the Senate may have set the stage for the rigging of the 2023 election as the PDP and some members of the civil society said in their reactions to the amendments last week.

Analysts had recalled that the PDP had in its challenge of the election of President Buhari in 2019 sought to rely on an election transmitted through the INEC server to prove its case.

But INEC had insisted that it did not have any result in its server, a claim accepted by the court since the law did not mandate the commission to do so.

Indeed, President Buhari had refused to sign the Electoral Act passed by the 8th Senate which also mandated electronic transmission of results into law.

Defending their actions some APC lawmakers had claimed that with poor communication infrastructure in their areas, supporting a law that backs electronic transmission of results may amount to the disenfranchisement of the people.

This was the position of Borno senator, Ali Ndume. But critics pointed out that the law that was rejected made provision for transmission of results electronically where ‘practicable.’

Unconstitutional!

An APC lawmaker had also told The Nigerian Xpress that there is nothing wrong in asking INEC to consult with NCC in the conduct of elections since the commission also regularly works with security operatives in the course of the conduct of the election.

He recalled that INEC had postponed the election before on the advice of security operatives.

But some analysts are calling on INEC to mount a legal challenge to the move by the Senate to subject its powers to NCC, a development which former Speaker of House of Representatives, Aminu Tambuwal described as ‘patently unconstitutional.’

“For the avoidance of doubt, S.78 of the Constitution provides that ‘The Registration of voters and the conduct of elections shall be subject to the direction and supervision of Independent National Electoral Commission’.”

“In the Third Schedule, Part 1, F, S.15: INEC has the power to organise, undertake and supervise all elections.

“The Constitution further provides that INEC operations shall not be subject to the direction of anybody or authority, Tambuwal said.

The former lawmaker who is also the governor of Sokoto State further argued that the mode of election and transmission of results were critical parts of the conduct, supervision, undertaking and organisation of elections in Nigeria.

“Of course, the National Assembly has the power to flesh out the legal framework but that has to be consistent with the Constitution.

“These constitutional powers have been solely and exclusively prescribed by the constitution to INEC, and cannot be shared with the NCC, or any other authority, and certainly not a body unknown to the Constitution.”

He, therefore, said the Senate’s decision to subject INEC’s constitutional power to conduct elections to NCC was consequently patently void, unconstitutional and unlawful.

“We had earlier counselled that the mode of conducting elections and, in particular, the transmission of votes be left with INEC who would monitor developments and determine at every election the type of technology to be deployed to ensure free, fair and credible elections.

“INEC also has constitutional power backed by the Electoral Act to make rules and guidelines to ensure that every vote is counted and that every vote counts.

“If INEC determines that in any part of the country, electronic transmission is not possible, it would by regulations determine the appropriate thing to do,” he said.