May 2022 – Olympus LP

The Electoral Act 2022 was assented to by President Muhammadu Buhari on the 25^th February 2022. The Act repealed the Electoral Act of 2010 that governs all Federal, State, Area/Local government elections in Nigeria which in no doubt a great step towards the 2023 general election to ensure smooth transitioning.

Here are the major highlights of this Act;

This new act allows for financial autonomy unlike the 2010 Act where before INEC gets funding, approvals have to come from the Minister of Finance. In this new Act, the commission gets funding directly from the Federal Government.

This new act also establishes the Independent National Electoral Commission Fund to be paid directly by the Federal government to the commission to enable them discharge their functions and money shall be paid to the commission a year before the conduct of the general election.

This new Act allows the use of electronic devices and technological devices like card reads etc. during accreditation process during elections. This new Act provides for electronic transmission of election results in accordance with the way and manner prescribed by the Commission.
This new Act introduces the controversial Section 84 (12) that disallows political appointees from participating in any convention or congress held by any political party either as a voting delegate or as an aspirant for the purpose of nominating a party flag bearer at the general election. In plain terms, no political appointee is allowed to vote or be voted in party primaries, hence they are to abdicate such position before the conduct of the party primaries.
This new Act empowers the presiding officers at any polling unit to cancel the election result in a polling unit where the number of votes counted exceeds the number of accredited voters in that poling unit.
Unlike the 2010 Electoral Act that prescribed that parties should submit the names of party flag bearers who participated and emerged victorious in the party primary election not later than 60 days before the conduct of the general election, this new Act gives the window of 180 days for the party to submit the names of the emerging candidate to the commission.
This new Act ladens on the commission to not later than 360 days before the days scheduled for the election to publish a notice in each state constituencies of the Federation inclusive of the Federal Capital Territory detailing the date of the election and the place where nomination papers will be delivered to. This provision takes a distal from the provisions of the 2010 Electoral Act which provides for a 90 days period before the conduct of the election.
This new Act extends the days for public campaigning for a candidate and his/her political party from the 60 days from the day of the election and should end 24 hours before the election day as obtained under the 2010 Electoral Act to 150 days from the day of day of the election and should end 24 hours before the election day.
With respect to matters pertaining to the death of a candidate, this new Act provides that where before the commencement of polls a candidate dies, the election shall be postponed and shall commence within 14 days of the candidate’s death.Where a candidate dies after polls, but before announcement of the final result, the election will be suspended for not more than 21 days.Where the election is for a legislative position, the election shall be conducted afresh and the political party whose candidate died may, if it intends to continue to participate in the election, conduct a fresh primary within 14 days of the death of its candidate and submit the name of a new candidate to the Commission to replace the dead candidate.For gubernatorial, presidential and FCT area council elections, the running mate shall continue with the election (as the new candidate) and nominate a new running mate.
Unlike the provisions of the 2010 Electoral Act where the decisions of the Returning Officers with respect to declaration of scores of candidates, return of candidates, void votes, unmarked and rejected ballot papers etc. can only be subject to the review by the court or an election tribunal however, this new Act empower the commission to also review the decisions made by the returning officers.
This new Act raised the standard for data keeping and management as it provides for ways of keeping the Register of Voters at the National headquarters and other locations in formats like the mundane manual and hard copy format and also the introduction of the electronic format in its central database location. The provision takes a distal from the 2010 Electoral Act that only allows for the manual format.

CONCLUSION

Considering the provisions of this new Act, it is safe to say it is a laudable introduction to the right direction of electioneering process. This new Act can be described as and home-made and home-grown Act because the provisions of the Act are actuated to solve the mischief and anomalies of the 2010 Electoral Act that led to prolonged litigation. This Act will be put to the litmus test objectiveness in the buildup of the 2023 election like the party primaries and the 2023 general election.

Sadly, holding charge is a daily reality in Nigeria’s criminal justice system despite several courts’ decisions to the effect that the practice is unconstitutional and unknown to our criminal justice system. Prevalence of this practice suggests attempts by the police, other law enforcement agencies even the Attorneys-General at forcing it down our throats.

Holding charge is simply a practice where a person accused of an offence which a magistrate court does not have jurisdiction to try is brought by the police or other law enforcement agents before the magistrate court for the purpose of being remanded in the prison pending conclusion of investigations or the issuance of the Director of Public Prosecutions’ (“DPP”) advice for him/her to be subsequently charged/arraigned before the appropriate court[1].

I usually wonder why magistrate court that will readily decline to entertain a civil action where it lacks jurisdiction will entertain a criminal action when it lacks jurisdiction despite fundamental rights being at stake?

In an attempt to arm-twist the courts’ decisions to the effect that holding charge is unconstitutional and a violation of the accused’s right to personal liberty, the legislators both at the federal and the state levels have through their respective administration of criminal justice laws made provisions to “legalise” holding charge. For example, Sections 293 to 299 of the Administration of Criminal Justice Act 2015 (“ACJA”) gave the magistrate courts power to remand an accused in custody pending when appropriate charge will be brought before the appropriate court with jurisdiction or pending DPP’s advice. Sections 264 to 266 of the Lagos State Administration of Criminal Justice Law 2011 (as amended) also provide for this procedure, and Section 306 to 312 of the Administration of Criminal Justice and Other Related Matters Law of Ogun State 2017.

Though these provisions set out time limits for the remand order to subsist, reality has shown the time limits only exist on paper, and that these provisions have been used as weapons for violations of accused persons’ rights to personal liberty, fair hearing and the right to presumption of innocence. Needful to mention the fact that purported derogation of the right to personal liberty which these provisions attempt to achieve will even fail the test set in Section 45(2) of the 1999 Constitution (as amended). In a matter, a suspect is detained in a police station for several weeks for the purpose of investigation. The police officers afraid of running out of time, approach the magistrate court despite knowing full well that the magistrate court does not have jurisdiction to try the offence, to “validate” further detention of the suspect. In some cases, investigations have been concluded but these police officers will still file a charge at the magistrate court for a remand order to further keep the suspect in prison custody, then duplicate the case file and send to the office of the Attorney General for the DPP’s advice. From the beginning, the police officers and the magistrate know that for such an offence, the appropriate authority to consider and commence criminal proceedings is the office of the Attorney General. The “drama” seems like the police buying time for the prosecution, specifically the Attorney-General at the expense of a suspect’s right to personal liberty and other rights.

After obtaining the remand order from the magistrate court, an accused can be in prison custody for another seven (7) months even more without being arraigned in the appropriate court. Unfortunately, the fact that a person’s liberty is at stake is not enough to expedite the process for issuance of the DPP’s advice. After all, any suspect must have met other suspects on the queue for the DPP’s legal advice. It is even worse where the DPP’s advice is eventually issued after several months that it states there is no prima facie case against the accused. In most cases, accused persons in these shoes do not look back to enforce their fundamental rights which have been breached. As we are aware, media reports have shown cases where suspects are being accused of offences they never committed, where police arrested persons unjustly and eventually hooked them with holding charge to the extent that some accused who have no business in being in prison have been forgotten there.

In fact, a look at some proofs of evidence will show a reasonable man that the charges preferred are dead on arrival, but state’s resources and time will still be expended pursuing shadows. The accused will be made to suffer in detention for months even years. Some will even have holding charge hanging around their necks for years. It is even more painful that despite the provisions of the Constitution and decisions of superior courts declaring holding charge unconstitutional, the Magistrates faced with making a remand order despite lack of jurisdiction to entertain the charge will still go ahead to do so. This is despite the fact that the magistrate courts are also courts of law established by statute to apply the law to cases.

On what is expected of magistrate courts in this circumstance, the Court of Appeal in Charles v COP Abia State[1] stated thus:

“…Any accused who has been arraigned before a Court of law is the property of the Court and not that of the prosecuting authority. As such the Court must be watchful in ensuring that the rights of the accused are not trampled upon by prolonging his detention in the course of prosecuting his case. Doing this will negate the constitutional safeguards of the rights of the accused to trial within reasonable time…Thus as rightly observed by his lordship in the judgment which view I also subscribe to, no Court should shy away from calling out any authority which attempts or engages in acts that are in clear violation of the rights of the citizens…” Per Ibrahim Wakili Jauro, JCA.

Thus, to address these worrisome circumstances especially eliminating the practice of holding charge which is still prevalent, the following are recommended:

1. That law officers from the offices of the Attorneys-General be stationed in police stations. They are to work with the police on every criminal complaint, screen out frivolous complaints and give legal advice. Where a suspect is arrested, legal advice should be issued timely pursuant to which the law officer in the police station will file an information at the appropriate court where necessary. This is like getting the Attorneys-General closer to the beginning of the road of criminal justice. The states should employ more competent lawyers if short of man power to carry out this task. With a law officer at the police stations, DPP’s advice should be issued on time and appropriate charge preferred at the appropriate court. This will even give the law officer opportunity to meet and interrogate the witnesses at the earliest time.

2. Based on the fact that DPP’s advice is to state that there is a prima facie against a suspect, a period of about 24 hours should be set for the issuance of same, and an information preferred at the appropriate court within 24 hours after issuance of the DPP’s advice. Where there is no prima facie case, the suspect is let go at the police station rather than being let go after spending months in prison based on a holding charge.

2. The legal department of the Nigeria Police Force should work together with officers from the offices of the Attorneys-General stationed in the police stations in the screening processes, timely drafting and issuance of legal advice. After all, the legal advice is to state whether or not there is a prima facie case against the suspect on the basis of which he will be charged before the appropriate court if necessary which should not be difficult to do.

3. Officers of the National Human Rights Commission should be following up at the police stations and magistrate courts to monitor cases where holding charge is being practiced and those involved in the illegal procedure should be called out and sanctioned.

4. Civil Society Organisations should be involved in this process particularly monitoring criminal cases brought to the magistrate courts.

5. States’ judiciary should ensure Magistrates carry out their tasks and apply the law without fear or favour. Magistrates should be allowed to uphold the Constitution, decisions of higher courts on holding charge and fundamental human rights above the administrative requirements expecting them to entertain holding charge in their courts.

6. There should be increase in manpower and training of persons involved in the criminal justice system from the point of search, arrest till the end of the process in all cases.

These I believe will help decongest the prisons and prevent wastage of public resources to remand suspects in prisons who at the end DPP’s advice will find no prima facie case against. Practicality of these suggestions should be considered and adjustments made where necessary to move our criminal justice forward.

#opinion

[1] In Charles v COP Abia State (2021) LPELR-56547(CA). Oguji v Divisional Police Officer C/O Ojo Police Station, Ojo, Lagos State & Ors (2021) LPELR-56044, Anaekwe v COP (1996) 3 NWLR (Pt. 436) 320, Enwere v COP (1993) 6 NWLR Pt. 299) 333.

[1] (2021) LPELR-56044 (CA).