The Tears Of Nigerians Over Non-Electronic Transmission Of Votes To Irev: The Position Of The Law By C.J Nnamdi

ABSTRACT:

In the build up to the Presidential and National Assembly elections, which were conducted on the 25^th day of February 2023, the Independent National Electoral Commission (INEC) being a body statutorily empowered to conduct elections in Nigeria, assured Nigerians (inclusive of both eligible and non-eligible voters) of its commitment towards ensuring a free, fair and credible elections. on the strength of this commitment, the body introduced the much novel and celebrated electronic technology I.e Bimodal Voters Accreditation system BVAS which was geared towards ensuring transparency in the entire process.

Pursuant to the above, the Nigerian eligible voters armed and persuaded by the assurances of INEC came out en masse and cast their votes with the hopes that the results of the elections were going to be uploaded real time on INEC’S Result viewing Portal Irev. It was further hoped that with the innovation, the will of the People as expressed through the ballot would be reflected and safeguarded.

Contrary to these assurances made and in the wake of the presidential and national Assembly elections, INEC was was said to have reneged on its promise¹ on the ground that it was not feasible to so electronically transmit the election results on the Irev Portal. It must also be borne in mind that owing to the manifest demonstration of its commitment in this regard, the body made some guidelines, manuals and directives with the sole aim of strengthening the entire process.

It is in the perceived failure to electronically transmit the presidential elections- that it was adjudged both internationally and locally² to be the most controversial elections ever conducted by the Independent Electoral Commission (INEC) in recent times. Thus, this Piece x-rays the propriety of the hopes expressed by Nigerians viz visa-viz the provisions of the electoral Act 2022.

INTRDODUCTION:

Quickly, we would thread this thin line by posing some pertinent questions that would help serve as a guide through out this Piece with  the aim of aiding the appreciation of the issue (s) under discussion. Thus:

1. Can an electoral Body such as INEC be adjudged to have failed Nigerians in view of its inability to electronically transmit            results real time to Irev’s Portal?
2. Does the Electoral Act give INEC the discretion to elect what method to deploy in a given circumstance in the transmission of          results?
3. Can the failure to so transmit the election results be said to have voided the entire Process?
4. Can such assertion be proper in the light of extant electoral laws in Nigeria?

THE HOPES OF NIGERIANS OVER ELECTRONIC TRANSMISSION OF VOTES TO INEC PORTAL (IREV).

Undoubtedly, the Presidential election was conducted under a novel and technologically improved legislative architecture and a new electoral jurisprudential regime to ensure it cures the banes of the past, the features thereof and usher in a new dispensation that guarantees its integrity, credibility and transparency. It was further intended by the legislature that a new regime in election management and dispute resolution, in response to the yearnings for an end to the perennial flawed election cycles, each getting worse than its predecessors be changed with the sole aim of doing substantial justice over technicalities by the Courts.

Suffice to say that under the old advent, it was easy to inflate, deflate, stultify and manipulate election results arising from a leaked and loose electoral regime and architecture. understandably because there were no technologies to authenticate, supervise and ensure the transparency and security of the Process. Thus, it was easy for election predators to ruthlessly hijack election materials like a hawk would, while chasing its prey during collation of results. The consequences are that election results were amenable to erasure, alteration, inflation, deflation and in a broad sense manipulation.

Arising from the chequered history of election malpractice, the legislature thought it wise to embrace and uphold the electronic regime as it obtains in other civilized climes. This innovation was intended to cure and correct the leakage prevalent under the old regime and implant a secured, more sustainable and transparent process up to the emergence of a candidate (s) of political Parties as constitutionally prescribed. See sections 131 and 177, 66, of the Constitution of the Federal Republic of Nigeria and sections 134, of the electoral Act 2022.

Gladly, the Independent National Electoral Commission (INEC) sequel to its promise towards the delivery of a transparent elections and in a bid to strengthen the process enacted regulations, Manuals and policies in this regard. Chiefly among them were: Paragraphs 38 of INEC’S Regulations³ and guidelines for the conduct of the Elections for 2022 which prescribes as follows:

On completion of all the Polling Unit voting and results procedures,    the Presiding Officer shall:

• Electronically transmit or transfer the result of the polling Unit, direct to the collation system as prescribed by the Commission.
• Use the BVAS to upload a scanned copy of the EC8A to the INEC Result viewing Portal (Irev). as prescribed by the Commission.

Furthermore, Paragraphs 2.9.0 of the INEC’S Manual prescribes as follows:

Electronic transmission/Upload of election Result and publishing   to        the INEC Result viewing (IRev) Portal:

One of the problems noticed in the electoral process is the irregularities that take place between the polling Units (PUs) after            the announcement of results and the point of result collation.      Sometimes, results are hijacked, exchanged or even destroyed at        the PU, or on the way to the collation Centers. It becomes            necessary     to apply technology to transmit the data from the Polling Units            such that the results are collated up to the point of result             declaration

The real time publishing of polling unit level results on IRev Portal            and transmission of results using the BVAS demonstrates INEC’S            commitment to transparency in results management. This            commitment is backed by Sections 47 (2), 60 (1, 2 & 5), 64 (4a & b)             and 64(5) 0f the electoral Act 2022 which confers INEC with       powers to transmit election results electronically. The system         minimizes election errors and delays in results collation and             improves the accuracy, transparency, and credibility of the results     collation process

Owing to the avalanche of promises made to Nigerians by the Chairman of INEC Prof. Mahmood Yakubu and the Commissioner designated for Voters’ education by the Commission (One Festus Okoye) as made out in several social media platforms where such representations were made, coupled with the aforementioned regulations,guidelines and manuals, could it be conveniently said that INEC would not be estopped⁴ from asserting otherwise in law and in fact?⁵ Are Nigerians not justified in the lamentation and tears that they have shed regarding the Just concluded Presidential and National Assembly elections?

One intriguing and fascinating aspects of this development is that both elections were conducted on the same day but that of National Assembly elections were successfully transmitted/uploaded without glitches where as the Presidential elections were not. Thus, the explanation that INEC offered to this defect was that the National Assembly elections were designed and came from States and were easily discernible whereas that of the Presidential elections were uniform⁶.

The question that easily waves at ones mind is: were the presidential elections not conducted on the same day, time and place as expressed by the voters? Were they not from each federating states of the Country.? were they not all in the same Ballot? Were the information and accreditation of the voters not being captured simultaneously with that of the National Assembly elections held on the same date, time and Place?

The answer to the above questions posed would reveal that the electoral process did not justifiably meet the aspirations and yearnings of Nigerians. Cognizance must be taken of the amount that were budgeted and given to INEC to execute this national task⁷. We further hasten to add that in view of the fact that this was a recurrent decimals, INEC was under obligation on its volition to assuage the indignant feelings of the voters and usher in a new dawn by steadfastly keeping to its promises. What more can one say than that INEC being a body constitutionally mandated to conduct elections in Nigeria which it does every four years ought to have gathered sufficient experience in the execution of the task always placed on it and in turn renew the hopes of the electorates.⁸

THE POSITION OF THE ELECTORAL ACT ON THE TRANSMISSION OF VOTES REAL TIME ON IREV’S PORTAL.

The point of concern to an average Nigerian or a legal mind is the position of the law on the subject matter. This is because the posture of the Courts are titled towards interpretation of laws on the land, and the instrument or the outlet through which these laws are interpreted remains the principles of law as found in their bare letters. Thus, proceeding legally, what does the law prescribe regarding the transmission of results after the conclusion of elections?

People who are bereft of legal knowledge are quick to ascribe the word transmission as found in the relevant sections of the Electoral Act 2022 to mean simultaneous or instant upload of election results to INEC’S Portal. This misconception have often become a sermon preached by these Persons without proper legal application, knowledge and lens. This is understandably because section 64 (5) of the electoral Act states that …collation or returning officer shall use the number of accredited voters recorded and transmitted directly from polling units under section 47 (2)…Therefore, at the mention of the word transmission every knee shall upload instantly to IREV’S Portal.

The disturbing question that beckons is: does the law recognize instant upload or transmission after the close of polls to IREV’S Portal? Does it give INEC the discretion to choose which procedure is appropriate or permissible in a given circumstance? Does it envisage alternatives in the event that electronic transmission fails? Let’s look at the law in this regard.

Undoubtedly INEC is statutorily empowered to conduct elections in Nigeria and the law has magnanimously conferred it with some discretion towards the way and manner elections are conducted in Nigeria.⁹ Thus, section 50 (2) of the electoral Act has blessed the Commission with some discretionary powers to wit:

Subject to section 63 of this Act, voting at an election and the transmission of results under this Act shall be in accordance with the procedure determined by the commission.

In the same breadth, The provisions of section 60 (5) becomes relevant and handy and it mandated the presiding officer to transmit results including the total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission. Thus, in FHC/ABJ/CS/1454; LABOUR PARTY v INEC, the Federal High Court held:

“….Can an act of the Defendant, in collating and transferring     election results in the forthcoming 2023 general elections be said          to be contrary to the relevant provisions of the electoral Act, 2022?             the answer can only be in the negative as there is nowhere in the     above cited sections where the Commission or any of its agents is             mandated to use an electronic means in collating or transferring of election results. If any, the Commission is only mandated to collate      and transfer election results and number of accredited voters in a     way or manner deemed fit by it…the correct interpretation of the           above statutes is that the Defendant (Independent National        Electoral Commission) is at liberty to prescribe the manner in            which election results could be transmitted and I so hold.

We are tempted to introduce the provision of the law which is to the effect that any non-compliance with the stipulation of INEC’S Regulations and guidelines which is not a direct prescription of the Electoral Act can not form the basis upon which an election would be invalidated. Thus, the non electronic transmission of the results to the Irev is not a prescription of the Electoral Act 2022. in fact, section 134 (2) of the electoral Act 2022states that an act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for invalidating or questioning the election.

It must be remembered that the essence for the introduction or accommodation of the IRev was to assist in the collation process and where there is a discrepancy in the hard copies of the results and those issued to a political Party, recourse would be hard to it i.e IRev. This is because there may be discrepancies in the hard copies of INEC results and that of the Political Parties. It may also be resorted to where the INEC’s hard copies or that of the political Parties agents are not available. See regulation 93¹⁰which provides thus: “where the INEC hard copy of collated results from the immediate lower level of collation does not exist, the collation officer shall use electronically transmitted results or results from the IRev Portal to continue collation. Where none of these exist, the collation officer shall ask for the duplicate copies issued by the Commission to the following:

• The Nigeria Police Force; and
• The agents of Political Parties”’.

Consequently, even where no results are uploaded on the IREv and INEC’s hard copy is unavailable, recourse would be hard to hard copies with the Nigeria Police Force and Party Agents.

Of immense importance is the fact that section 60 (1-4) of the Electoral Act, adequately captured what would happen in an election, starting with accreditation of voters to announcement of results and having them recorded as may be prescribed by the Commission. It further went on in that foot at section 60 (5) to state as follows: The Presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner to be prescribed by the Commission. What this translates is that INEC could transfer the results in accordance with section 62 of the Electoral Act. See also section 135 of the Electoral Act 2022.

CONCLUSION

In view of the foregoing, it must be stressed that INEC’s attitude towards the delivery of credible elections in Nigeria usually falls below expectations. INEC after commission of electoral infractions and  anomalies would gladly defend the winners of the elections. Thus, INEC always defiles its sacred and public duty to deliver a credible and transparent elections and if INEC is not whipped into line by the Courts, to do its electoral duties properly, fairly, impartially and independently, elections in Nigeria will be an remain a fraud; time and resources wasted to clone electoral fraudsters as Leaders, against the noble spirit of the law and the Constitution¹¹.

We would therefore conclude by stating that INEC’S Regulations and Manuals could be likened to rules of Courts which although must be obeyed, remains at best the handmaids or servants of the Courts in the due administration of Justice and like such rules, they are often not strictly adhered to as circumstances may dictate in the over riding interest of justice.

C.J NNAMDI ESQ is an Abuja based Legal Practitioner while C.A NNAMDI is an undergraduate of Law at the University of Benin in Nigeria. Both could be reached on 0816 865 2656 or via nnamdijohn76@yahoo.com

1. See Nigerian Tribune Newspaper Publication made on the 23^rd day of February 2023.
2. European Union’s report on the conduct of the Presidential elections could be accessed at www.eeas.europa.eu.com
3. INEC’S Regulations and Manuals are made pursuant to the provisions of the electoral Act and are therefore subsidiary        legislation
4. Estoppel is a principle in law that seeks to forbid a Person from asserting otherwise when such a Person has led another into   believing and acting upon his earlier promise or representations to          the latter’s detriment.
5. Arising from the assurances made to Nigerians via social Media Platforms, Meetings and Gatherings by INEC especially through its Chairman Prof. Yakubu Mahmood, The Commission no doubt reneged on its promises. The resultant effect is the pains and tears           of Nigerians are justified.
6. This was contained INEC’S Evidence before the Presidential Election Petition Tribunal through its sole witness
7. The sum of Three Hundred and Fifty Five Billion(N355, 000,000,000) were budgeted and earmarked for the 2023 general elections conducted by INEC- it needs to be penalized for failure to transmit            results electronically to the IRev as promised.
8. The opinion of the Writer and its a common knowledge that before and after the inception of democracy, the Commission has always    had a periodic repeat of the conduct of elections in Nigeria
9. See Sections 50 (2), 60 (5), 62 (1), 65 (1) etc of the Electoral Act 2022
10. INEC’S Regulations 2022 Supra regarding the conduct of 2023 general elections
11. This is the admonition of the Court in PDP v ALECHENU (2019) LPELR-49199 (CA)