Suggestions to Modify Nigeria’s Constitution: INEC (Part 1)

Section F: The Independent National Electoral Commission (INEC)

Schedule III, Part 1, Section F of the amended 1999 constitution of Nigeria confers the powers to organize and supervise all elections on a body called the Independent National Electoral Commission (INEC). Despite many improvements in conducting elections, this body has many structural inefficiencies that has frustrated many Nigerians. The debacle of the recent 2023 elections was for many “the straw that broke the camel’s back”.

Many Nigerians are calling for reforms. Here, I wish to contribute only a suggestion for the structural transformation of INEC on the federal and state level. These suggestions are only a few of many, and I have intentionally avoided detailed explanations, otherwise it would be too pedantic for public consumption. I share these ideas to encourage legal creatives. The ideas are not meant to be exhaustive, but just to give a general sense, for the full body of expatiated ideas for the modification of the Nigerian constitution will be shared incrementally in the time to come.

Under Section F (14) The President appoints the Chief Electoral Commissioner, the twelve (12) other Electoral Commissioners, and the Resident Electoral Commission of each State of the Federation and the Federal Capital Territory of Abuja.

-The constitution should be amended to strip the president of the powers to appoint the head of INEC. It is a violation of checks and balances for a sitting President of a party to determine the head of the electoral commission, and also the other electoral commissioners of the federation. Previous experience has shown this leads to party politics and the premature calling of elections.

Instead, I propose an entirely new structure. INEC should be divided into three independent branches for efficiency and effectiveness: Policy, Implementation, Investigative. Think of each branch like interdependent federal agencies.

1. Policy branch: Responsible for setting election policy and rules for the next cycle.
2. Implementation branch: Responsible for the implementation of election, staffing, coordinating, supplies, collating results.
3. Investigative branch: Responsible for investigating any election irregularities immediately post-election.

Each branch will have specialized roles (pre, during, and post elections), procedures, timelines, and methods of appointing Head Officers, and staff.

For example, I propose the following on the National Level for the nomination of Branch Heads:

-The Head Officer of INEC’s Policy branch, and four members of the National Electoral Commissioners, should be nominated by a counsel of three members from the majority party (one of which can be the President) from the Nigerian National Assembly.

-The Head Officer of INEC’s Implementation branch, and four members of the National Electoral Commissioners, can be nominated by a counsel of three member from the third largest party (one of which can be the head of the party) of the Nigerian National Assembly.

-The Head Officer of INEC’s Investigative branch, and four members of the National Electoral Commissioners, can be nominated by a counsel of three members from the second largest party (one of which can be the head of the party) of the Nigerian National Assembly.

If the Counsel appointing the Head of the Policy branch cannot reach an agreement within thirty (30) days of convening, then the President’s (or the authorized representative of the majority party) nomination will be binding. If the Counsel appointing the Head of the Implementation branch cannot reach an agreement within thirty (30) days of convening, then the Head of the minority party’s (third largest in Assembly) nomination will be binding. If the Counsel appointing the Head of the Investigative branch cannot reach an agreement within thirty (30) days of convening, then the Head of the minority party’s (second largest in Assembly) nomination will be binding.

The nominated Officer will need just a simple majority to be confirmed.

Under Section F (14.3) The President can also appoint the Resident Electoral Commissioner of each State of the Federation and the Federal Capital Territory of Abuja.

The constitution should be amended to strip the President of these powers, which are too far-reaching. In practice, this provision has given the President undue influence in State politics. Instead, I propose the same structure for the appointment of Federal INEC Commissioners, but on the state level.

In each State of the Federation, you would have the state-level branches of the Policy, Implementation, and Investigative branches.

-The Resident Electoral Commissioner of the Policy branch should be appointed by a counsel of three members from the majority party (one of which can be the Governor) of the State National Assembly.

-The Resident Electoral Commissioner of the Implementation branch should be appointed by a counsel of three members from the third largest party (one of which should be the head of the minority party) of the State National Assembly.

-The Resident Electoral Commissioner of the Investigative branch should be appointed by a counsel of three members from the second largest party (one of which should be the head of the minority party) of the State National Assembly.

As it is on the Federal level, with the Counsel’s lack of consensus and the timeline for agreement, so will it be on the State level. Here, the Heads of the largest three parties in the State Assembly on the various counsels (or an authorized representative) will cast the binding nomination if the allotted timeline is exceeded.

Again, as in the Federal level, the nominated Officer will need just a simple majority to be confirmed.

Federally, the President will have no power to compel elections to be called, and no election can be called without the signatures of all the Heads of each branch on the Federal level. All three must gather and also give a verbal confirmation of their authorizing and finalizing the results on a live televised session. The inference is that the Head Officer of the investigative group must confirm his branch has investigated and reconciled alleged irregularities and must provide evidence of this reconciliation. The evidence must be publicly available and documented in a Green paper (not white paper). There would be a verification process and strict timeline for this procedure that cannot be elaborated here, also contingencies to prevent gamesmanship and each branch from stalling important decisions. There are many points and specifics to mention for each group, and many other sections of the constitution in general. More details will be forthcoming in future essays.

But changing the constitution, the powers of government, the structure, procedure, timelines etc. is necessary as a precondition for Nigeria to move forward. The 1999 modified constitution as currently exists should be recalled. A new governance structure that reflects the present realities of Nigeria, and makes it possible for government and citizens to cooperate more dynamically, should take its place.

Thus, I call for a constitutional convention.

~Dr. Ikenna Ezealah