US embassy cable - 05ABUJA698

UNCLAS SECTION 01 OF 02 ABUJA 000698 
 
SIPDIS 
 
SENSITIVE 
 
DEPARTMENT PASS USAID, ALSO FOR AF/W 
USAID FOR AFR/WA, ALOZANO, DCHA/DG, WMARSHALL 
 
E.O. 12958; N/A 
TAGS: PGOV, KDEM, EAID, KCOR, NI 
SUBJECT:  DRAFT ELECTORAL ACT REVISION--NET NEGATIVE, 
MISSED OPPORTUNITIES, BAD SIGN FOR 2007 ELECTIONS 
 
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 
2007.  END SUMMARY. 
 
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. 
 
NEGATIVES IN THE BILL 
 
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. 
END COMMENT. 
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 
observers. 
 
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. 
 
POSITIVES IN THE BILL 
 
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. 
 
POLITICAL PARTY FINANCES 
 
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. 
 
CAMPBELL