Is the Independent National Electoral Commission (INEC)’s failure to transmit election results electronically a valid ground for cancellation of the affected results? ROBERT EGBE examines the issue.
How should election results be transmitted after collation by the Independent National Electoral Commission (INEC) presiding officers? Is the direct electronic transmission of election results from polling units mandatory under the Electoral Act, 2022? What is the effect of non-compliance with the e-transmission of results requirement?
These questions are at the root of controversies stirred by some political parties and stakeholders following the February 25 presidential and national assembly elections.
Controversy
INEC on Wednesday declared the All Progressives Congress (APC) flag bearer Asiwaju Bola Tinubu the winner of the presidential polls, ahead of his closest rivals Atiku Abubakar of the Peoples Democratic Party (PDP) and Labour Party (LP)’s Peter Obi.
Two days earlier, former President Olusegun Obasanjo and the National Peace Committee led by former Head of State, Gen. Abdulsalami Abubakar faulted the alleged manual transmission of election results by some INEC presiding officers.
Obasanjo urged President Muhammadu Buhari to cancel the results in dispute and reschedule such cancelled election for next Saturday, March 4.
The same day, the National Collation Agent for the Peoples Democratic Party (PDP), Dino Melaye and other party agents also walked out of the International Conference Centre (ICC) in Abuja over alleged INEC’s non-compliance with the Electoral Act on e-transmission of results, among others.
Melaye alleged that INEC was compromised and that the election was rigged in favour of the APC.
Transmission of results: What does the law say?
The most relevant laws governing the transmission of results are the Electoral Act 2022, particularly Sections 60 to 65, and INEC’s Regulations and Guidelines for the Conduct of Elections, released on June 3, 2022.
Section 60(5) of the Electoral Act 2022 provides that “The presiding officer shall transfer the results including the total number of accredited voters and the results of the ballot in a manner prescribed by the Commission”.
The use of “shall” suggests that the presiding officer must transmit the results as prescribed by the INEC.
INEC’s instructions as to how this should be done by the presiding officer are contained in its Regulations and Guidelines for the Conduct of Elections, 2022 last June, pursuant to Section 149 of the Electoral Act, 2022.
The regulations apply to the conduct of elections to offices of: “President and Vice President; Governor and Deputy Governor; National Assembly (Senate and House of Representatives); State Houses of Assembly; Chairmen and Vice-Chairmen of the Federal Capital Territory (FCT) Area Councils; and Councillors of FCT Area Councils Legislature.”
Paragraph 38 of the Regulations and Guidelines, 2023 appears to make Electronic Transmission of Results and Upload of Results to the INEC Result Viewing Portal (IReV) mandatory.
It states: “On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:
“(i) Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission.
“(ii) Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV), as prescribed by the Commission.
“(iii) Take the BVAS and the original copy of each of the forms in a tamper-evident envelope to the Registration Area/Ward Collation Officer, in the company of Security Agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Centre.”
Thus, the Regulations and Guidelines seem to require that the presiding officer must electronically transmit the results from the polling units, after which the results would then be taken manually to the collation centres.
Electronic transmission mandatory, say SAN, law teacher
Senior lawyer, Samuel Okutepa (SAN) believes direct e-transmission is compulsory and that polling units’ results must be uploaded on IREV.
Okutepa said this is in accordance with Paragraph 38 of the INEC guidelines
The lawyer said: “There is no doubt that INEC is under a statutory obligation to transmit election results electronically. The starting point of the argument is paragraph 38 of the INEC manual made pursuant to Section 149 of the Electoral Act 2022 and the 1999 Constitution as amended.
“That paragraph which deals with the transmission of results at the polling units is crucial and it imposes a statutory obligation on the part of INEC to upload polling units’ results on its portal.
“Before proceeding further, it is important to note that polling units’ results are the pyramid upon which other results are built. Therefore, it is required that the moment polls come to a close and the results are declared, the results must be uploaded on INEC servers or portal.”
Nigeria Law School teacher, Sylvester Udemezue, agreed.
He said: “Section 60(5) of the Electoral Act 2022 provides that ‘The presiding officer SHALL transfer the results including total number of accredited voters and the results of the ballot in a manner prescribed by the Commission’.
“The use of ‘shall’ here, it is respectfully submitted, implies that the presiding officer MUST transmit the results as prescribed by the INEC Guidelines.
Udemezue noted that the Regulations and Guidelines supersede all previous regulations and/or guidelines on the conduct of elections, issued by the INEC.
He said the Regulations and Guidelines “require that the presiding officer must electronically transmit the results DIRECT from the polling units, after which the results would then be taken manually to the collation centres.
“This means that the Regulations and Guidelines prescribe two levels of collation: (1). Electronic Transmission (collation) which must be done directly from the polling units; and (2). Manual collation which would then follow after electronic Transmission.”
In his view, manual collation “is the lower level of collation, according to Section 64(5) of the Electoral Act 2022.”
Effect of INEC’s failure to comply
Okutepa noted that the word used in Paragraph 38 of the INEC guidelines is “shall.” He added that failure to comply could lead to result cancellation.
He added: “It is mandatory and compulsory. INEC has no option. So the failure to upload results and follow the procedures set out in paragraph 38 of the manual made pursuant to the Electoral Act 2022, is a fundamental breach that has the potential of rendering the election results that did not follow those procedures null and void.
“The law is that where the law has set out the procedures to be followed, the procedures and no other must be followed.”
Udemezue also considered the legal effect of INEC’s failure to comply with the provisions on direct electronic transmission from the polling units.
He noted Section 64(5) of the Electoral Act, 2022 which requires that “the collation officer or returning officer shall use the accredited voters recorded and transmitted directly from the polling units under Section 47(2) of this Act and the votes or results recorded and transmitted directly from polling units under Section 60(4) of this Act, to collate and announce the results if a collated result at his or a lower level of collation is not correct”.
Udemezue said the legal and practical implications of the provisions of Section 64(5) of the Electoral Act 2022, are that “e-transmission of election results directly from the polling units is mandatory and collation of results manually (the lower level of collation) is still allowed.”
He argued that where there is a conflict between results transmitted electronically direct from the polling units and results as collated manually, ‘the results as transmitted electronically direct from the polling units shall prevail.”
The teacher added: “In order to determine whether such a conflict exists, there must have been a direct electronic transmission from the polling units, before the manual transmission. Both must co-exist.
“The results transmitted direct from the polling units (higher level collation) are the yardsticks for measuring the authenticity of the results collated manually (lower level collation);
“The collation officer at the collation centre must be afforded the opportunity of measuring the authenticity of the manually-collated results by matching them against the electronically transmitted results. This opportunity may only exist where there has been direct electronic e-transmission from the polling units before the manual collation, so that both must be present to enable the collation officer to make an informed determination.”
In his view, failure to transmit the results electronically direct from the polling units “is a fatal violation of the law, because the collation officer is then denied the mandatory opportunity to verify the authenticity of the manually collated results by matching them against the electronically transmitted results.”
He added: “Under the Electoral Act 2022, non-compliance with mandatory provisions of the law is a ground for review (which may include, but not limited to, outright cancellation) of any results even after declaration/return has been made.
“The proviso to section 65(1)(c) of the Electoral Act, 2022 gives the INEC the power within seven days of the declaration of any election results and the return of any candidate, to REVIEW the DECLARATION or RETURN where INEC determines that the declaration or return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.”
Three SANS: E-transmission not compulsory
But senior lawyers with the Tinubu/Shettima Presidential Campaign Council Directorate of Legal Affairs disagreed.
A Director in the Legal Department of the All Progressives Congress Presidential Campaign Council (APC PCC), Dr Hassan M. Liman, Deputy Directors Legal, APC PCC, Olusola Oke and Babatunde K. Ogala in a joint statement made a counterargument.
The three SANs noted that those who called on INEC to outrightly cancel the election hinged their argument on the alleged failure of INEC to comply with the provisions of Section 60(5) of the Electoral Act, 2022 and Paragraph 38, Part 2 of the Regulations and Guidelines for the Conduct of Elections 2022 under which the presiding officer is required to:
“Electronically transmit or transfer the result of the polling unit directly to the Collation System as prescribed by INEC and use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV).
“Without intending to hold brief for the INEC on the alleged failure to comply with the above provisions, it is our humble view that the above provisions apart from not providing for the consequence being urged on the INEC and the public, are to be read along with the provisions of Section 60 of the Electoral Act, 2022 especially subsections (1), (2). (3) and (4).
The sections read: 60(1). The Presiding Officer shall, after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the commission as the case may be.
(2). The form shall be signed and stamped by the Presiding Officer and countersigned by the candidates or their polling agents where available at the polling unit.
(3) The Presiding Officer shall give to the polling agents and the police officer where available a copy of each of the completed forms after it has been duly signed as provided under subsection (2).
(4) The Presiding 0fficer shall count and announce the result of the polling unit.
They argued that in the light of the above provisions, the requirements for the presiding officer to electronically transmit or transfer the result of the polling unit directly to the Collation System as prescribed by INEC and use the BVAS to upload a scanned copy of the EC8A to IREV “are complimentary/supplementary and not a substitute for the above mandatory provisions for the polling officer to enter the result into Form EC8A.”
They contended further that the Form (EC8A) is the primary source of information on the result of an election in a polling unit.
“Nowhere either in the Electoral Act 2022 or the Regulations and Guidelines referred to above is it provided that failure to transmit or upload polling unit results will lead to suspension of collation of the result or cancellation of the election.
The penalty provided by the Electoral Act is personal to a presiding officer ‘who wilfully contravenes any of the provisions of Section 60 of the Electoral Act’.
“It follows from the above that those calling for the suspension of further collation of the result of the Presidential election or outright cancellation of the election cannot find support under the Electoral Act, 2022 or any Statute. The public is urged to disregard the unlawful call.”
Akintola: E-transmission discretionary
Another Senior Advocate of Nigeria (SAN), Chief Adeniyi Akintola also argued that non-compliance with the e-transmission of results is not a ground for cancellation of such results, because e-transmission is discretionary, not mandatory.
He described the controversy as “the shenanigans of the oppositions on the issue of transmission of results and server.”
Akintola said: “Section 38 of the Electoral Act, 2022 referred to by Dino Melaye and their political parties has nothing to do with the transmission of election results.
“Section 60 (2) of the Electoral Act 2022 that deals with the transmission of results is at the discretion of the INEC; there is no mandatory provision regarding the transmission of results.
“In other words, the mode of transmission of the results is discretionary.”
“For the avoidance of doubt, Section 60 (2) reads ‘Subject to Section 63 of this ACT, voting at an election and transmission of results under this ACT shall be in accordance with the procedure determined by the Commission ‘.”
The senior lawyer explained that the rules and regulations made for the election by the INEC are “subject to the Electoral Act. The rules of procedure remain what it is, it is simply a rule.
“Election is a process and the Electoral Act 2022, has made provisions for the steps to take including resort to the judiciary for intervention.
E-transmission: What was the lawmakers’ intention?
President Buhari signed the 2022 Electoral Act Amendment Bill into law on February 25, 2022, after months of withholding assent.
The 2022 Electoral Act repealed Electoral Act No. 6, 2010.
The new Act brought several innovations to the regulation of Federal, State and Area Council elections. Some of the innovations included technological changes in the electoral process, such as the use of smart card readers, electronic voting machines and electronic transmission of election results.
In making its amendments, how did the national assembly want INEC to understand and apply the sections relating to transmission of election results?
According to Senate President Ahmad Lawan, the Electoral Act has no provision for the electronic transmission of results.
Lawan spoke on the floor of the Senate on Tuesday, February 28, during a rowdy session following a disagreement over the collation of last Saturday’s presidential election results by INEC in Abuja.
He argued that what was passed by the National Assembly was snapping of election results and transferring them to the server of the Independent National Electoral Commission (INEC).
The Senate President said: “In the Electoral Act that we passed, there is nothing like the electoral transmission. What we have passed is to transfer all the paper works that we normally do while the agents and everybody there have the papers.
“INEC will now scan or snap the result sheets and transfer them. We urge INEC to follow the Electoral Act and other laws on their guidelines.”
INEC’s position
INEC, on October 26, 2022, affirmed its commitment to the transmission of results to the INEC Result Viewing Portal (IReV) in real-time for the 2023 elections.
Its Chairman,Prof Mahmood Yakubu, gave the assurances during the Commission’s quarterly meeting with political parties in Abuja.
“On this note, let me once again reassure Nigerians that there is no going back on the deployment of the Bimodal Voter Accreditation System (BVAS) for voter accreditation.
“There is no going back on the transmission of results to the INEC Result Viewing Portal (IReV) in real-time on Election Day,” Yakubu said.
Last August 21, the Commission again cleared the air on its prescribed mode for its presiding officers to transmit election results.
Its spokesperson, Festus Okoye, said the electoral umpire would continue to adopt electronic transmission of results for this year’s general elections.
Okoye was responding to the criticism which followed an earlier report in which he was quoted saying the results of the forthcoming election would be collated manually.
He explained that his comment was misinterpreted insisting that the electronic transmission of results adopted in the recent off-season governorship elections has come to stay.
He argued that the electronic transmission of election results has boosted the INEC’s credibility as seen in the recently concluded governorship elections in Ekiti and Osun states.
Okoye said the commission had long concluded plans to use the same procedure for this year’s polls elections.
“We wish to reassure Nigerians that the electronic transmission of results has come to stay. It adds to the credibility and transparency of the process when citizens follow polling unit-level results on the INEC Result Viewing (IReV) portal in real time on Election Day. There will be no change or deviation in subsequent elections.
“The entire gamut of result management is provided for in Sections 60, 62 and 64 of the Electoral Act 2022. In line with the provision of the law, the Commission, in April this year, released a detailed clarification of the procedure for transmission, collation and declaration of result which was shared with all stakeholders and uploaded to our website,” he said.
