Cablegate: Draft Electoral Act Revision--Net Negative,

This record is a partial extract of the original cable. The full text of the original cable is not available.





E.O. 12958; N/A

REF: 04 ABUJA 1939

1. (SBU) SUMMARY: Two years after Nigeria's greatly
flawed 2003 and 2004 elections, a draft bill revising
the Electoral Act is moving to committee in the
National Assembly on its second reading. The net of
what is in the draft is a slight step backwards in
terms of the many serious concerns raised in the 2003
and 2004 Human Rights Reports, although the bill does
provide some benefits on other areas, such as assisting
voters with disabilities. The draft bill does not,
however, create the conditions for Nigeria to attain
free and fair elections, and that opportunity cost may
be more important than what the bill does say. Getting
this revision right is important, as it is likely to be
the last revision before Nigeria goes to the
presidential, gubernatorial and legislative polls in

2. (U) The 2003 and 2004 Human Rights Reports list a
wide array of problems from nationwide elections in
those years, and judicial challenges to many of the
election results -- including President Obasanjo's
election -- are still in the courts. The Independent
National Electoral Commission (INEC) drafted a bill to
reform the 2002 Electoral Act's flaws, in an effort to
provide ground rules for free and fair elections in
2007. The bill was presented in the National Assembly
in December 2004, and is being sent to committees for
discussion/revision now after its second reading.

3. (SBU) Our analysis is that the present draft will
not improve the chances for free and fair elections in
2007. The bill does not address many of the issues
that it could have addressed without revising the
constitution, and there will not likely be another
revision to the Electoral Act before the 2007
elections. The net of positive and negative changes
that did make it into the draft are a slight step
backwards in terms of the problems noted in the Human
Rights Reports. There are some improvements on other
issues, notably assisting voters with disabilities, but
some other would-be positives such as more INEC powers
over party finances are negatives as long as bill does
not strengthen the independence of the "Independent"
National Electoral Commission from the ruling party.


4. (SBU) The bill adds a new Part II on INEC's staff
but omits any mention that the staff should not be
partisan, reinforcing INEC's public contention that the
staff is not covered by any legal requirement to be
independent in political terms. The chairman of INEC's
legal committee, Commissioner Abubakar, told an April
14 publicly-televised seminar on the bill that the
constitution separates staff from the Chairman and
Commissioners, and INEC sees no need for the Electoral
bill to extend to INEC staff the legal requirements it
makes of the INEC Chairman and Commissioners.

5. (SBU) The bill does little to make the Chairman or
Commissioners independent either. The constitution
says they are appointed by the President and confirmed
by the Senate, and the Electoral Act sets procedures
and standards for doing so. INEC says it decided not
to seek a constitutional amendment on the President
appointing and Senate confirming, arguing there is too
little time before the 2007 election. The bill keeps
the Election Act procedures vague. No Senate debate is
required before confirmation, for example, nor is the
President's putting nominees up for public comment
before appointing them, nor even consultation with
political parties on candidates. The bill also keeps
INEC's narrow legal standard for independence -- that
the Chairman and Commissioners only must not be GON
officials holding elective office or members of a
political party -- and does not change INEC's public
interpretation of it that any party that challenges the
independence of a commissioner must provide the other
party's membership roll for the specific day that the
commissioner was working for INEC (reftel).

6. (SBU) COMMENT: INEC may not have known at the time
that the Presidency would call a national conference to
debate changes in 2005-6, including constitutional
amendments. The national conference is now looking at
amending various parts of the constitution (septel),
but making INEC more independent is not among them.
7. (SBU) The draft bill keeps the overly large number
of levels where election returns are collated and
announced before the final figures are declared, a
major problem in 2003. There were widespread fraud
accusations when figures announced at one level did not
match the total of figures reported at levels below.
The draft bill also does not give access to those
different collation levels for political party
representatives, domestic observers and international

8. (SBU) The bill keeps INEC on the side of "winning"
candidates in election challenges, instead of giving it
a neutral or "friend of the court" role helping
election tribunals find the truth. INEC Commissioner
Abubakar told the same public seminar above that the
Electoral Act and not the constitution made INEC a
defendant instead of neutral, and that INEC recognized
this affected both its neutrality and independence.
"Perhaps the National Assembly can change that," he
commented. (COMMENT: As noted in the Human Rights
Reports, INEC's making itself a defendant in Nigeria's
common law-based adversarial court system has given
INEC an interest in not cooperating with the courts,
with extremely troublesome effect. END COMMENT.)

9. (SBU) The bill deletes the provision in the
Electoral Act of 2002 that no general election shall be
conducted before INEC has concluded compilation and
updating of the National Voters Register. INEC told
the tribunal hearing Buhari's challenge to the 2003
presidential election that it could not provide the
court a copy of the Register (which Buhari's suit was
challenging) because the Register had not been
completed. The new bill merely stops registration 120
days before the election and allows no changes from 60
days before the election. It is silent on what happens
if the National Voters Register has not been compiled
by the election.


10. (SBU) There is only one positive in the bill,
continuous voter registration, that affects any of the
many problems noted in the 2003 and 2004 Human Rights
Reports. Post is not sure whether that Register was
completed or not, given INEC's court testimony, but
Nigerians certainly had problems registering to vote.
The bill's provision for rolling registration should
help solve those problems.

11. (SBU) The bill tackles some areas that did not
figure in the Human Rights Reports, providing hortatory
language that INEC can "take reasonable steps to ensure
that voters with disabilities are assisted at the
polling place by the provision of suitable means of
communication, such as Braille." The bill also
requires that government-owned print or electronic
media should give equal access on a daily basis to all
registered political parties and candidates.


12. (SBU) Political party finances does not figure
among the many election problems the Human Rights
Reports outlined in Nigeria, but it has long been on
the list of President Obasanjo, INEC, and many in the
NGO community. The draft bill gives INEC extensive
powers to audit contributions and expenditures of
political parties, sets limits on both, and sets fines
and imprisonment (and thus barring from elections) for
those who violate its limits. While this may work if
the political parties accept it, they are unlikely to
do so while the INEC that administers the system is
still not independent. Indeed, the added rules for
INEC to supervise party finances may become a major
problem if they are used to intimidate or harass
opposition parties.


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