US embassy cable - 01ABUJA3228

C O N F I D E N T I A L SECTION 01 OF 05 ABUJA 003228 
 
SIPDIS 
 
 
E.O. 12958: DECL: 12/19/2011 
TAGS: PREL, PGOV, PHUM, KDEM, NI 
SUBJECT: NIGERIA: NEW ELECTORAL LAW SPARKS CONTROVERSY 
 
 
Classified by Ambassador Howard F. Jeter.  Reasons 1.5 (b) 
and (d). 
 
 
1. (C) Summary: President Obasanjo signed the controversial 
electoral law on December 6.   By shifting local government 
elections from 2002 to 2003, the measure has pitted the 
National Assembly against the state governors in a struggle 
to gain influence over local governments and electoral 
politics in general.  By signing the legislation, President 
Obasanjo allied with the Assembly against the governors who 
publicly have dared to challenge the President on resource 
allocation and revenue-sharing issues.  At Obasanjo's 
insistence, the law was amended to restrict the participation 
of new political parties in the 2003 electoral season solely 
to local government contests.  The bill also expanded INEC's 
powers regarding the qualification of new parties and 
candidates.  While given the breath of life in the 
President's office, the new law seems destined to spend much 
of its infancy in court.  State Governors will likely 
challenge the Assembly's authority to stretch the tenure of 
local governments.  Meanwhile, human 
 rights activists and out-of-favor politicians also have 
questioned the constitutionality of its restrictive aspects. 
End summary. 
 
 
2. (C)  President Obasanjo signed the hotly debated electoral 
law only a few days after receiving the measure.  The law had 
been in joint committee for several weeks as Senate and House 
conferees reconciled differences in their respective 
versions.  While both versions delayed local government 
elections from 2002 to 2003, their most salient difference 
was that the Senate wanted a staggered 2003 election schedule 
while the House preferred that all elections take place the 
same day.  The final product incorporated the Senate 
preference.  Other key provisions of the new electoral 
measure are: 
 
 
-- The sequencing of elections in three stages: National, 
State and Local; 
 
 
-- The restriction of new political parties to participation 
only in local elections for the 2003 electoral cycle; and 
 
 
-- Designation of the INEC as the final authority to 
determine the qualification of parties and candidates. 
 
 
3. (C)  Most electoral experts agree that changing the local 
elections to 2003 made sense on two counts. First, 
preparations to hold local elections in early 2002 were 
negligible. Time was swiftly running out to adequately 
prepare for the elections.  Second, contemporaneous or 
simultaneous elections were more efficient technically and 
much more economical than the original schedule which 
bifurcated the local races from the other elections. 
However, passage of the new law was not driven by the advice 
of these experts.  Their advice simply provided a rationale 
for what the National Assembly might have done anyway. 
 
 
4. (C)  Delaying local elections a year basically was a child 
of power politics disguised as a  technical fix.  Elected 
officials in Abuja, from the National Assembly to the 
Presidency (hereinafter referred to as "the Abuja Group"), 
have grown wary of the power and independence exhibited by 
state governors.  Given the governor's control over state and 
local purse strings, the Abuja Group feared that local 
elections in 2002 would give the governors undue political 
advantage.  They worried a governor would use his position as 
the state Chief Executive to funnel patronage at the local 
level and thus control the outcome of local contests.  By 
controlling the local electoral apparatus, the governors 
would not only safeguard their incumbency, but would enhance 
their influence over subsequent party Presidential and 
National Assembly nominations as well as the 2003 general 
elections for these offices.  In short, the Abuja group 
feared the governors would become independent king-makers, 
not beholden to the center or 
the President. Any national office contestant seeking votes 
in a particular state would be compelled to pay homage and 
perhaps something more pecuniary to enlist the governor's 
support. 
 
 
5. (C) During a December 5 conversation with PolCouns, 
Representative Suleiman Isiyaku (PDP-Yobe) acknowledged that 
the primary motivation behind the law was to undercut the 
governors' growing power.  On issues such as resource 
allocation and revenue sharing between the Federal Government 
and the states, governors had become too demanding and 
vociferous, he maintained.  While the governors caviled that 
the Federal Government was not passing sufficient revenues to 
them, too many governors were behaving dictatorially toward 
local governments.  The very heavy-handedness they decried in 
the Federal Government, many governors were applying to local 
governments with even greater conviction and force. Not only 
were many governors tightly controlling local government 
expenditures to ensure their cronies handsome dollops from 
the bursary, numerous governors also were unilaterally firing 
elected local officials, contravening both state and federal 
constitutions, Isiyaku stated. 
 
 
6. (C) According to the Representative, the governors' most 
unforgivable infraction was to pressure members of the 
National Assembly.  Many Assembly members, he declared, had 
been threatened by governor's to hew the voting line 
prescribed by governors on certain issues or risk the loss of 
support at the local government level come legislative 
elections.  The electoral law was passed in large measure to 
stem the state executive's ability to control the political 
and electoral apparatus at the local level, and thus wield 
this sword in the face of Assembly members. 
 
 
7. (C) Although governors would not dare lean on the 
President as they had Assembly members, the Presidency was 
aware of these machinations, Isiyaku asserted.  Aso Rock 
realized the governors would eventually seek leverage over 
the President.  The Villa wanted to avoid the situation where 
carrying the Presidential sweepstakes in a particular state 
would depend on the candidate being in the governor's good 
graces.  The Presidency wanted the opposite dynamic, where 
gubernatorial candidates needed the President's blessing. 
The first step toward this objective was pushing the local 
elections to 2003. 
 
 
8. (C)  The corollary was sequencing the 2003 elections so 
that the national elections (Presidential and National 
Assembly) preceded the state and local contests.  This 
scenario complicates the governor's quest to wrest control of 
the local areas before the Presidential elections.  Under the 
new law, local incumbents will remain insulated until their 
elections, which fall after to the national contests. 
Additionally, the new sequencing compels a degree of 
bottom-up party loyalty.  Given the bandwagon effect in 
Nigeria, the party winning the Presidency will likely win 
most state and local races.  To buoy their chances of 
victory, state and local aspirants now will find it in their 
interests to ensure the success of their party's Presidential 
nominee.  (Comment: The amended electoral schedule represents 
the convergent interests of nationally elected officials in 
minimizing the political power of state executives, and 
secondarily, of state legislatures.  The local government 
incumbents, whose tenure has been ex 
tended by a year, also aligned themselves with the national 
elected officials.  One national representative admitted that 
officials of the Association of Local Governments of Nigeria 
(ALGON) had visited the Capitol in Abuja, doling out 
contributions to ensure Assembly Members passed the electoral 
measures. End Comment) 
 
 
9. (C) The law's passage will not mute the governors and 
state assemblies.  While the measure was still working its 
way through the National Assembly, Governors and State 
Assemblies launched an aggressive, often confrontational 
public relations blitz to discourage the law's passage.  The 
Governors trashed the measure as an usurpation of power, 
arguing the constitution conferred the authority to extend 
local government tenures to state governments not to the 
National Assembly.  State assemblies threatened 
constitutional standoffs by vowing to dissolve Local 
Government Councils and hold elections in 2002, 
notwithstanding the bill.  (Comment:  The Governor's exegesis 
is not unreasonable. The constitution gives State Assemblies 
authority over the establishment of local governments, while 
it provides the National Assembly general authority to 
establish electoral laws.  The document does not explicitly 
grant to any arm of government the power to extend local 
government tenures. Both sides argue the constitution sho 
uld be read in way that gives them the power. Many prominent 
legal minds believe the constitutional interpretation 
emanating from the State Assemblies -- that the 
"establishment clause" gives the power to the states -- is 
more compelling than the arguments being mustered in Abuja. 
End comment.) 
 
 
10. (C) After the bill was passed, Obasanjo huddled selected 
Governors and National Assembly leaders together in an 
apparent effort to forge a compromise.  However, there was no 
visible exit from the legal and political tangle the 
collective public hectoring and posturing had wrought.  The 
Governors had offered not to object to the bill and the 2003 
local elections if the federal government would allow the 
dissolution of the Local Government Councils in 2002.  The 
governors would then hand pick the interim local officials. 
At that point, the Governors' arguments for constitutional 
propriety rang hollow, Isikayu declared.  By requesting the 
power to unilaterally fill elected positions, the Governors' 
solution would cause more wreckage than the flaw it sought to 
repair, he claimed. Rejecting the proposal as an unwise 
augmentation in gubernatorial power, the Assembly passed the 
bill, sending it to the President for signing on December 3. 
By December 6, Obasanjo signed the measure, stating that 
whomever felt ag 
grieved should take the matter to court. Governors are 
scheduled to meet December 19 to discuss a collective course 
of action. 
 
 
--------------------------------------- 
New Parties Put on a Short, Local Leash 
--------------------------------------- 
 
 
11. (C) In addition to shifting the local elections, the law 
restricts newly registered parties to participation solely in 
local elections.  Only those new parties that win at least 15 
percent of local government chairmanships in two thirds of 
the states in 2003 will be allowed to contest in national and 
state elections come 2007.  The ostensible reason for this 
provision is to ensure stability by limiting the propagation 
of small, parochial groups that would only exacerbate ethnic 
and regional tensions. 
 
 
12. (C) Critics upbraid the provision as undermining the 
freedom of association.  Limiting the new parties to local 
government elections, which are now the caboose of the 
electoral train, discourages formation of new parties. 
People eyeing national or state office would be penalized by 
joining a new organization; now, these office-seekers must 
affiliate with an existing group. 
 
 
13. (C) Most observers see the measure as Obasanjo's attempt 
to fence in PDP members and power-brokers who have become 
disenchanted with his Administration.  Rumors abound about 
Northern heavyweights, including former Head of State 
Babangida, being seized with displeasure over Obasanjo's 
failure to consult them regularly and his perceived tilt 
toward his Southwest homeland.  Some Governors and National 
Assembly members also dislike Obasanjo.  This restrictive 
provision will prevent this corps of disgruntled politicos 
from bucking the PDP to form parties that could influence 
national and state election outcomes.  By limiting the field 
to extant parties, the new legislation benefits the ruling 
PDP and, by extension, President Obasanjo should he seek a 
second term.  The argument that this change was made to 
prevent defections from the PDP is bolstered by the fact that 
it came at the Presidency's behest.  Apparently, the clause 
was inserted at the thirteenth hour, after the law had 
already been adopted by both ho 
uses. This inclusion would appear to be a procedural 
irregularity. However, since the bill suited their interests, 
few in the Assembly seem to mind this procedural blemish. The 
law may also keep centrifugal forces within the opposition 
APP and AD in check.  Riven by internal factionalism, they 
stand a better chance of survival if potential defectors face 
political irrelevance as a price for leaving.  However, 
opposition leaders also realize the new measure might drive 
defectors into the governing PDP instead of the new parties. 
 
 
---------------------- 
INEC's Influence Rises 
---------------------- 
 
 
14.  (C)  The electoral law significantly expands INEC 
authority to disqualify candidates and parties.  Previously, 
INEC was delegated the authority to render administrative 
determinations about a party's or candidate's eligibility. 
Disputes would go to the courts.  The new law ejects the 
courts from its normal jurisdiction to hear these disputes. 
INEC will be the final arbiter.  Although the courts are not 
immune to political pressure, opponents of this provision 
consider INEC as more susceptible than the judiciary to 
bending to the Executive's will.  These opponents fear Aso 
Rock will influence INEC's determination, which, as the law 
now stands, are not subject to review. 
 
 
----------------------------- 
The Disaffected and Dismayed 
----------------------------- 
 
 
15. (C) While signatories to the law are congratulating 
themselves for protecting their incumbencies, opponents are 
huddling together to blunt the effect of the legislation. 
The opponents make an incongruous army: Officials of the 
Yoruba-based AD, leaders of prospective political parties, 
state Governors, legislators and a coterie of the nation's 
best know human rights attorneys and activists have been the 
most vocal critics.  The list of activists who oppose the 
bill reads like a Who's Who of Human Rights in Nigeria: 
Constitutional Rights Project leader Clement Nwankwo, Civil 
Liberties Organization founder Olisa Agbakoba, Beko 
Ransome-Kuti, the irascible Femi Falana and the irrepressible 
Gani Fawehinmi. Fawehinmi's distaste for the bill was such 
that he resigned as an attorney for the House of 
Representatives.  Attacking on several fronts, the human 
rights activists believe the law is infirm because the 
National Assembly overstepped constitutional bounds by 
extending the tenure of local governments.  Secon 
d, they join in lambasting the restrictions on new parties as 
anti-democratic.  Third, the designation of the INEC as the 
final arbiter of electoral qualifications is considered both 
an improper usurpation of the judiciary's constitutional 
mandate and a thinly veiled device to enable the Presidency 
to exert significant influence over which parties and 
candidates get the green light from the INEC.  In short, they 
are convinced that the law's unconstitutional and restrictive 
(undemocratic) bent far outweigh the logistical and economic 
benefits of grouping the elections closer together. 
 
 
------- 
Comment 
------- 
 
 
16. (C) During the past six weeks, the electoral law has been 
a genuine political tug of war. As with most issues that 
reach this level of controversy, a politician's viewpoint is 
shaped more by self-interest than principle.  Those who stand 
to gain, ignore the law's possible shortcomings; those who 
are undercut by the law's passage, see only warts. Yet, the 
controversy reveals a dynamic made possible by the new 
democratic dispensation in Nigeria.  Usually, the political 
fault lines are drawn by ethnicity, region or religion -- by 
those immutable characteristics that define "who you are." 
This time, battlements are delineated more by "what office 
you fill." Governors, regardless of region, state size, and 
ethnicity hold a unified view.  Likewise, National Assembly 
members see things similarly despite their many differences 
and despite acrimony over previous issues. 
 
 
 17. (C) In some ways, it is a positive development to see 
the debate fashioned by the actor's position in the political 
constellation and not by intrinsic factors that are more or 
less unchangeable. In a certain sense, the emergence of new 
political alliances that cut across traditional ethnic and 
regional lines is a sign of democratization. The downside is 
that this competition over the electoral law primarily 
represents the continuation of power politics by other means. 
The alliances are based almost solely on self-interested 
electoral considerations. Now, they have allied to protect 
their positions.  The competition also leaves the 
psychological impression that the law generally pits the 
"ins" against the "outs," often a source of disequilibrium 
when a nation embraces a new political system. 
 
 
18. (C) Using this legal device to gain higher ground in an 
essentially political battle may produce some unintended 
casualties.  The overt infighting within the political class 
affirms the public's perception that Nigerian politicians 
cannot effectively govern their own appetites, let alone 
govern the nation.  Some of the law's provisions also seem to 
challenge the sanctity of the constitution.  Everyone praises 
the constitution; yet, in the next breath, many are ready to 
jettison one of the document's provisions if the excision 
suits their immediate interests.   The manner in which the 
measure was passed did not advance the rule of law and may 
have weakened it, to a degree. 
 
 
19. (C) The brouhaha will likely be cast to the judiciary, 
giving the Supreme Court a chance to affirm its position as 
final arbiter of constitutional issues. If called upon, the 
judiciary will need to exert its independence by impartially 
deciding the Act's constitutionality.  If so, the Court would 
have taken a key step in what promises to be the lengthy 
journey of defining the parameters in which the political 
game can be played responsibly in Nigeria.  The Court's 
decision could seminally influence the contours of Nigerian 
federalism as much as John Marshall's decisions shaped 
American federalism during the early years of our Republic. 
Still, the larger question looms: does the law increase the 
prospects for  the elections of 2003 to be superior to those 
of 1999?  While too early to venture a guess, the measure 
establishes salient observations points from which we can 
gauge the process as events unfold.  For example, the 
independence and impartiality of the INEC loom more 
importantly in view of the INEC' 
s increased power to determine who can enter the electoral 
fray.  Also, in that few political parties will be allowed to 
contest in national elections, intra-party mechanisms to 
ensure participation and access will weigh heavily.  Last, by 
signing the law, Obasanjo tacitly indicated he is considering 
a second term and is positioning himself accordingly. In the 
short term, the law strengthens Obasanjo. However the more 
people see Obasanjo as a candidate and because of the 
restrictive aspects of the law, the more important it will be 
for him to act in a manner showing Executive branch 
commitment to honest elections. If he does not act to soothe 
ruffled feathers and co-opt some of the law's critics, then 
opposition to the law might intensify and that would wound 
Obasanjo in the longer term. 
20  ( C) In the end, electoral considerations make for 
strange bedfellows. A year ago, the relationship between the 
President and the National Assembly was rancorous. Now, they 
have allied to help protect each other's electoral chances. 
This might reflect a one- time meeting of the minds or it 
could represent a deeper recognition between the Presidency 
and the Assembly of the need to cooperate, to the extent 
possible, during the pre-election period. How the Assembly 
treats the budget debates when it reconvenes early next year 
will be a major indication of which description is more apt. 
End comment. 
Jeter