Category: Open Forum

By Wahab Shittu

The permeation of technology in the daily lives of people stems from its dilution of the complications faced by people in their day-to-day lives. This impact is noticeably felt in human communication as the timeframe within which messages are sent and received has been made seamless and swift irrespective of the distance between the sender and the receiver. Nigeria is not stuck in the unknown on the impact of technology, as it has infiltrated various sectors of the country.

The latest attempt at infiltration is recognised in the election process of Nigeria, particularly as it is to be utilised as a means of transmitting results from various locations in the country to a known centre. The electoral body in the exercise of its discretion through its regulation adopted the electronic means of transmitting the result of the election. Such information or data is accessed for accountability at a speed necessary to create a watertight defence from the manipulation of results.

However, uncertainty beclouds the legal position on the extent involved in the applicability of the transfer of such election results through electronic means, most especially the impact on the manual transmission and other means of transfer of such election results.

Nature of electronic transmission

The Electronic Transmission of election results was introduced by the Independent National Electoral Commission (INEC) which is an independent body saddled with the responsibility of conducting elections. The establishment of the body is validly founded on the provisions of Section 153(1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (CFRN) thus giving legality to their existence. The INEC is vested with diverse power under Section 153(2) of the CFRN 1999 and such powers are itemised under item 15 of part 1 to the 3rd Schedule. Some of these responsibilities include the undertaking and supervision of elections, registering political parties monitoring political campaigns in the election amongst others.

Under the item, the INEC is also obligated to carry out responsibilities imposed on it as well as exercise powers conferred on it by the Act of the National Assembly. The National Assembly in the exercise of its own power enacted the Electoral Act of 2022 and it was signed into law by the president on the 25th day of February 2022. The CFRN 1999 by the provisions of Section 160(1) empowers the INEC to create its own regulations to direct its actions; this provision is sui generis in nature as it makes the regulations valid without its subjection to the approval or control of the president. This provision recognizes the influence the president’s approval can have on the independence of the body.

The Electoral Act 2022 also recognises this authority as the provision of Section 148 of the Act dictates that certain actions are left to the manner which will be provided by the Commission. The exercise of this power led to the creation of the INEC Regulations and Guidelines for the Conduct of Election, 2022. The INEC Regulation further asserted their discretion on the manner in which elections will be conducted; birthing Clause 38 in the Regulation which introduced Electronic Transmission of the election result. The regulation holds the status of subsidiary legislation as it was born from the primary lawmaking responsibility of the legislature which had delegated its power to the body. Any action in defiance of the regulation by those bound by it is therefore unlawful as the regulation carries the same weight and force as the law empowering it.

The court in the case of Best Njoku v. Chief Mike Iheanatu held that a subsidiary legislation is subsequently made pursuant to the powers conferred by the principal legislation to which it is complimentary; it has the force of law. Therefore, it raises no question as to the validity of the power of INEC to make rules to regulate its own procedures, save for where the regulations made contest with the purports of the constitution or the Electoral Act empowering it; where the latter occurs, it is null and void. The electronic transmission of the election results by virtue of being in the INEC regulation receives the force of the law.

Nigeria’s journey to the inclusion of electronic means of transmitting results in the election process began with the Electoral Act Amendment Bill 2021 which resulted in the Electoral Act of 2022. Clause 52 of the Bill sought to introduce electronic voting into the election process. Such was meant to be carried out by INEC where practicable, which consequently meant that the manual process was employed where the electronic voting was impracticable. However, such Clause failed to reach the last stage of the legislative process as it was amended with only the electronic transmission retained at the exercise of INEC discretion in the INEC regulation.

The electronic transmission of results in Clause 38 of the INEC Regulation is in exercise of the discretion given under Section 60(5) of the Electoral Act, which enumerates that the presiding officer at the polling unit after counting votes and declaring the number is to transmit the result in accordance with the directives of the Commission. With the directives of the commission as to the manner of the transmission, the presiding officer’s disobedience to such attracts sanctions.

While Section 60(6) of the Electoral Act fails to expressly include that the sanction also pertains to the disobedience of the presiding officer to observe the provisions of Clause 38 of the INEC regulation, it indirectly brings that INEC directive under the ambit of Section 60 through the Section 60(5). The upload of the polling unit result was an avenue to curb electoral malpractice, as it saves the result sheets (EC8A) from being manipulated during collation at the ward. The timely upload of the result sheet eliminates the weakness of the smallest unit of the electoral division being susceptible to manipulation as the human intervention is checked.

The Electronic transmission of the result entails the upload of the result to the INEC Result Viewing Portal (IReV).  This is to ensure the availability of the result copies from the polling units to INEC. The regulation permits recourse by the electoral body to the electronically transmitted copies where it is inconsistent with the result that is physically collated. The Electronic transmission of results is limited to the polling unit as it does not extend to the wards.

Thus, the absence of the method during the ward collation does not attract any sanction and the absence of such requirement at the ward collation helps deal with surplusage; this is because the most basic information has already been provided and any further upload at a higher level is not a necessity.  Clause 48 of the INEC Regulation reveals the status of the electronically transmitted election result where incorrectness is identified by the collation officer, with a similar purpose identified under Clause 51 which states that discrepancies in a result submitted by the presiding officer to the Ward Collation Officer will be resolved using the electronic result to identify the source of the discrepancy. The clause states that the result that is electronically transmitted will be employed for the purpose of collation and announcement of the result. Therefore, in a situation of incorrectness or suspicion of manipulation, the electronically transmitted result supersedes other forms of result appearing before the collation officer.

Electronic transmission and other transfers

 The Electoral Act 2022 which repealed the Electoral Act 2010 virtue of the provision of Section 151 introduced various changes and its contents accede to the claim that technology is the future. Some notable inclusion highlighting Nigeria’s participation in the technological advancement includes the utilization of the BiModal Voters Accreditation System (BVAS) and the electronic mode of transmitting the election results. The electronic transmission of results adopted in the new Act is a departure from the old Act which was devoid of the electronic transmission of results. The lack of the electronic means of transmitting results was reiterated by the court of appeal in the case of Abubakar & Anor V. INEC & others, where the court stated that ‘there is no provision…for transmission of election results electronically either by the use of smart card reader or other means’.

The exercise of the power conferred on the body to make rules guiding its actions birthed the 2022 Regulations, which amongst others provided for the Electronic Transmission of the results by the presiding officer stated in Clause 38 of the INEC Regulations of 2022. The provision highlights the incorporation of technology for an expeditious transfer of results from diverse locations and also suppresses the occurrence of electoral malpractice. However, the nascent status of Nigeria in technology which was evidenced in the connection failures when attempting to provide all presidential election results electronically has led to controversy in the interpretation of provisions pertaining to the transfer of election results.

A faction holds the position that the manual transfer of results exists as an alternative to the electronic transmission of the result, therefore in a scenario where the electronic transmission of results fails the manual transmission of the result can be employed. The other faction opine that the electronic transmission of the result is without any alternative virtue of the purport of Clause 38, as the manual transmission is highly likely to affect by malpractice thus giving freedom to the mischief that the Regulation intends to curb.

The drawback of the latter position that electronic transmission is the only means to be utilised in light of the reality of the technological stage of the country was revealed at the recently concluded Nigeria 2023 Presidential election where the attempt at a timely upload of results ended in futility. Therefore, the position of the manual transfer of the result was employed as it was the best practicable action at this point in time.  A common stance in both positions is the acceptance of the legality of the electronic transmission of results. This is due to the lawful exercise of the discretion bestowed on the body to make rules guiding it.

• Shittu is a law teacher and Senior Advocate of Nigeria (SAN)

By Ojo Emmanuel Ademola

On Saturday, February 25, 2023, Nigerians trooped out en mass to exercise their democratic rights to elect a new President to replace incumbent President Muhammadu Buhari. The election took place in over 170,000 polling units all over Nigeria and retched up a lot of emotions; partisan, religious and tribal which revealed the deep apertures existing in our multi-ethnic country.

The election proceeded smoothly and with minimal hitches at the various polling units. At this level, there was almost a unanimous agreement that the process was free and fair save for some noticeable observations of malfunction of BVAS machines, which were rectified and delayed the commencement of elections in some polling units until they were equally rectified. Sure, there were few reported incidences of skirmishes and minimal roughness, here and there but they were comparably few and insignificant as to affect the credibility of the election or mar its outcome. At this stage, almost all the contesting parties and observer groups, both local and international, agreed to this, and indeed confirm that Nigerians must be proud of both the process and the outcome of the election.

Polling ended peacefully nationwide. Collation commenced at the various polling units and results were tallied, declared at each polling unit and subsequently sent to the ward collation centres. Note that at these polling unit collation centres, all the various party agents handled a truly certified and fully endorsed copy of the result sheets, signed by all verified party agents. Essentially, this process provides huge evidence of the exemplary nature of the election as it all ended peacefully as all the party agents signed copies of the verifiable outcomes.

At the ward collation centres, results from all polling units that make up the ward were tallied and the result entered into the ward result sheet signed by the party agents and handed to all the agents present at this stage. At the local government collation centres, the results from all the wards were tallied and entered into the local government result sheets, signed by all party agents and given to all participating agents of the various parties.

The state collation centres tallied all the results from the various local governments to arrive at the election results of the various states. Here, the results are equally entered into the state result sheets and signed by all the party agents who were given the result sheets. Evidentially, it remains an exemplary process where everything moved toward the epitome.

The National Collation Center in Abuja then calls on the various states’ Resident Electoral Commissioners and the State Collation Officers to present the results from their various states. At the national collation centre, the National Returning Officer who is usually the Chairman of the Independent National Electoral Commission (INEC) presides and his job is chiefly to call the State RECs and the State Returning Officers, who are usually Vice Chancellors of their respective university to present the results from the various states, with party agents and accredited observers participating. After each state presents its result, the entire state’s results are tallied to get the national election result and the INEC Chairman then declares the winner of the presidential election based on the results collated from all the states and Abuja, after taking all observations, complaints issues raised by party agents.

I have listed the progressive stages in this long, meticulous and tedious process to show how the electoral system in Nigeria works and to bring out these salient points:

•That the main, most critical aspect of elections happens at the polling units, which is the basic and micro level where polling takes place and that results obtained at these units determine the winner of elections.

•That reservations, objections, and complaints about the conduct of elections first emanate and are handled at the polling units and that based on satisfaction with how these complaints and objections are raised, party agents sign the result sheets.

•That whatever happens at the other collation centres, wards, local government, state and national tallies with the outcome at the polling units and that noticeable alterations at each level after the wards are treated in respect of their veracity at the stage or level it is noticed.

•That the National Collation Center is just to tally the results that have been compiled from the polling units to the wards, to the local government, to the states and the national collation centre is hardly a place to raise issues that occur at the polling units.

•That depending on the capacity of each party, it is not impossible to know the results of a presidential election, a few hours after the conclusion of polls, as the results of each polling unit are endorsed and declared.

My reason for this detailed excursion is to expose the mendacity of the two opposition parties that are now making outlandish claims concerning the outcome of the 2023 presidential election.

My intervention is equally targeted at a section of the international media, which gleefully jumped at the phoney claims by the opposition to thumb down such a meticulous process and perhaps the freest, fairest and most credible election ever held in this country. The penchant of a section of the international media to gobble any negative information about Nigeria, ostensibly to suit their pre-election Armageddon prediction for Nigeria, often leads them to jump at any sly effort by the opposition to rubbish the county as a result of their failed selfish projections and there was plenty of such dubious buy-in with the 2023 election.  As the opposition parrot the selfish orchestra of a ‘rigged election’ without any scintilla of evidence, so did a section of the international media parrot the tale of a ‘flawed election’ without subjecting their report to minimal enquiry.

Let us note that the plank on which the opposition rests its wonky rigging charge was that election results were not uploaded directly on the INEC server from the polling unit, in ‘real time’ What a charge!  The opposition parties (here, it is the two losing parties, the PDP and Labour Party that are marketing this rigging charge) raised the allegation of not uploading results at the polling units in real-time at the national collation centre, during the declaration of results from the states. By this time, they had the results from all the states so they know whether they won or not before coming to the collation centre. Of course, they knew they lost the election and were therefore determined to cause obstructions that they hoped would sabotage the process and throw up a diktat. The opposition tactics themselves raise pertinent questions; Why didn’t PDP and LP raise allegations of rigging at the polling unit, ward, local government and state collation centres? Why did they wait till the results get to the national collation centre before raising allegations that results weren’t uploaded to the INEC server?

Again, what actually does an electronic transmission of election results from the polling unit to the server actually contribute to the fairness and credibility of elections? Essentially, what is transparent at the polling units is indeed by efficacy transparent at the ward level right to the National Collation centre!

Are PDP and LP arguing that there were differences between the results they signed and collected at the polling units, wards, local governments and states collation centres? Is the difference in the fact that results were not uploaded to the INEC server as soon as they were declared at the polling units? If there were differences between results, why did the opposition parties not raise these differences at the earlier stages of collation?

These and many more are posers the section of the international media and other interests would have raised before magnifying the mischievous, dubious allegations of the opposition after they found out they lost an election that saw many people in positions to rig the election, losing their states and strongholds in a manner never witnessed in Nigeria before.

As has oft been emphasized, the courts are there for those who feel the election was rigged to expose such acts of rigging and possibly get a reprieve. In Nigeria, there are legions of instances where election results had been upturned at the courts so the two aggrieved losing parties, having reluctantly elected to take this course, should channel all their energies to proving these cases of rigging during the election. The courts offer the opposition the theatre to prove before the whole world how the 2023 elections were rigged and we eagerly await such exposure for the benefit of our democracy.

But then, why are PDP and LP so piqued by INEC’s failure to electronically transmit polling units’ results to the INEC server in ‘real time’? Why are their ludicrous charges of rigging anchored on this very thin, shaky and collapsible prop? An effort to interrogate this abnormal obsession will reveal an elaborate plot to hack and manipulate results uploaded to the INEC server, to produce dubious results that are different from the votes cast by Nigerians. Reports of the arrest of several people in various parts of Nigeria with cloned BVAS machines and other electronic accoutrements and the recent report that the INEC portal witnessed millions of attempts to hack it on election day, lends credence to this suspicion. INEC knew of this deliberate cyber attack strategy and decided that only declared, certified and endorsed results from the polling units are uploaded on the INEC server; not in ‘real time’ but after the declaration of such results. Indeed INEC has done that and this leaves those who are bellyaching over the failure of INEC to upload results in ‘real time’ to cross-check if the results they have tally with the results declared and uploaded by INEC. Who has any issue with this? Is the prejudiced section of the international media aware of this process and the underlying factors behind INEC’s refusal to upload results in ‘real time’ before they go to town with the pejorative narratives fed to them by losing and mischievous oppositions?

Are PDP and LP, with their obsession with electronic transmission of results ‘in real time’ justifying the popular opinion that the refusal of INEC to upload results ‘in real time’ frustrated their alleged robust plan to hack the INEC server and replace real election results with their fake versions?

It is even important to know that no law mandates INEC to upload election results from polling units ‘in real time’ as the mischievous opposition claims. A Federal High Court in January ruled that INEC cannot be compelled to electronically transmit election results from polling units. Indeed the court ruled that it is at the discretion of INEC to decide which collation method to use for the 2023 election. So how does failure to transmit results electronically from polling units to the INEC server, immediately after the announcement of results, amount to ‘rigging’, as the sly opposition claims or vitiate the outcome of the last election, as the equally sly section of the international media charge?

Knowing the desperation of some interests to tamper with the INEC server, INEC decided to manually collate the results at all levels and then upload the vetted results to its server. That way, each party has the privilege of endorsing the results at the polling unit, ward, local government, state and federal levels and getting copies of the endorsed results. Both the PDP and LP have copies of these results and their agents endorsed them and they are critical to their vow to challenge the results at the courts. So why the hullabaloo about INEC not uploading results ‘in real time’? Who are those behind the multifarious and desperate attempts to hack and compromise the INEC server?

So, let the prejudiced section of the international media shine their eyes (as we say in popular Nigerian lingo) and question the opposition’s inappropriate interest in uploading election results in ‘real time’ and juxtapose this against the many attacks on the INEC server on election day. The international community and its media should interrogate every propaganda from the Nigerian opposition before lapping on such to discredit a very credible election that recorded very many upsets as never ever seen in Nigeria’s electoral history.

So surprising that the opposition has no real and tangible pieces of evidence of infraction to justify their desperate negative campaigns against the election. The only ground they trumpet is that the results of the election weren’t uploaded to the INEC server in ‘real time’ which neither was an infraction to the electoral law nor does it signify any electoral fraud.

It is quite easy for the section of the international media that markets the jaundiced ware of the opposition on the 2023 election to hide their partiality in a nebulous and often dubious crusade for a ‘perfect election’ which itself is a utopia as no such thing as perfect election exists. The last United States election that was won by President Joe Biden, against former President Donald Trump is still in dispute today and has bred millions of Americans now fondly tagged ‘election deniers’ who emphatically believe that Biden didn’t win the election. So why should a section of the international media, bent on promoting the warped and deeply mischievous interests of the Nigerian opposition, hide under the nebulous demand for a ‘perfect election’ to demarket an election That was outstanding for the way and manner those who are in a position to rig the election, lost their strongholds?

Nigerians, including the mischievous opposition, know that the election conducted on February 25 remains our best so far. There was no report of ballot snatching; a notorious glitching that had defaced Nigerian electoral practice for several decades. There were no reports of vote-buying, of the scale that we are used to in the country:’s electoral history. The BVAS eliminated double or multiple voting as we used to know.

These and several reasons account for the shocking outcome of the election where both the President and the President-elect, with several governors lost in their states to the opposition. Surprisingly, the opposition PDP and LP are desperately tarring the election because they lost and unfortunately, a wing of the international media is magnifying their efforts. I advise the international media to get themselves educated on the Nigerian electoral process and electoral law, subject the last election to deeper scrutiny before they hawk the prejudiced opinions of those that lost the election and employ the same to tar a credible election, which, I repeat, remains the freest, the fairest and the most credible election ever held in this country.

•Ademola is a professor of Cyber Security and Information Technology Management

By Bola Ahmed Tinubu

A fair, credible election has been held and has been won. The honor of that victory and the steep responsibility it entails has fallen on me. I say this not to gloat or boast because there is no room for such behavior. I merely state the facts as they are.

 I realise  many good and well-meaning Nigerians voted for other candidates. They are naturally disappointed that their favored candidate did not win.  Other candidates have voiced their dissatisfaction, stating they will go to court to contest the election.  This is inherent to the democratic process. We defend their right to seek legal recourse. While they exercise the legal rights afforded them in our democracy, I have set my course and mind on the leadership of this nation. We have important work to do and I am committed to getting that work done for the benefit of all the people, whether or not they voted for me or even voted at all.

 This is not the time for continued acrimony and partisan recrimination. These negative things can incite strong passions; but they are not the pathway to a better nation. Only unity and national commitment can serve that purpose.. 

 Critics of Nigeria have been too quick to conclude that our political system is fragmented because of the impressive showing of new parties and their candidates. These critics are wrong. The emergence of the new parties and their candidates underscores the dynamic strength of our democracy. People want democracy to work and they want to have their voices heard and interests met within it.  This is a good thing to be promoted,  not something to be feared.

 What must concern us is not the growth of parties but the regrowth of old prejudices  and bigotries such as  ethnicity, creed and place of origin.  As a nation and as individuals imbued with the love of God and of our fellow man, we are better than this. At some point we must decide whether we shall be enticed by the ills of the past or shall we more bravely and nobly be encouraged by the eminent prospect of a brighter future.   

   There have been times in our past when our governing institutions created more questions than they answered. But the arc of our political history gives me confidence that we can overcome that past. We have walked through the thick of the night to emerge into the light of  brighter days to come. There is no good reason to retreat into the darkness of years past.

 We must begin to repair and rebuild this national home of ours. There is time to complete the task,  but time is also of the essence. We must not tarry or fret over the enormity of what we face.

 We are able of mind and body. Now, we must show the spirit and willpower to accomplish the historic things that lie within our grasp.

 As your incoming president, I accept the task before me. There has been talk of a government of national unity. My aim is higher than that. I seek a government of national competence. In selecting my government, I shall not be weighed down by considerations extraneous to abiilty and performance. The day for political gamesmanship is long gone. I shall assemble competent men and women and young people from across Nigeria to build a safer, more prosperous and just Nigeria. There shall be young people. Women shall be prominent. Whether your faith leads you to pray in a church or mosque will not determine your place in government. Character and competence will.

 To secure our nation and to make it prosperous must be our top priorities. We cannot sacrifice these goals to political expediencies. The whims of politics must take a backseat to the imperatives of governance. 

 We have bridges and roads to build not just for commerce and travel but to connect people of different faiths, parties and different outlooks in harmonious dialogue and common purpose. We have families to feed not just to eliminate hunger but to nurture enlightenment, civic responsibility and compassion.  We have jobs to create not merely to put people to work but to afford all a better standard of living by which families and communities are improved and democracy deepened. We have water to replenish not just to quench physical thirst but to ignite a thirst for creative and better solutions to society’s challenges. We have a nation to protect such that we eliminate danger and even the fear of danger. May all of our people be able to live their lives in the light of peace and the glow of broadening prosperity.

 An important step toward restoring economic normalcy has been taken by the Supreme Court’s decision on the parity of old and new notes . This restores both the rule of law and economic decency. But this is not the end of the story. It is merely the beginning of a more comprehensive solution to our economic challenges. 

 Our Renewed Hope Action Plan outlines goals for greater economic growth in our cities and rural communities. We are committed to an economy of double-digit GDP growth, greater food security and one with a strengthened manufacturing base as well as an active digital economy where young people will have ample space to fulfill their dreams and aspirations.

 I realise that I am the servant of a larger purpose. As such, I have gone straight to work.

 My team and I have been daily engaged in discussions and meetings refining our ideas and policy solutions so that we can begin actively working toward the common good the very first day we assume office.

 This great project called Nigeria beckons to us all.

 I ask that we work together as Nigerians for Nigeria. Those who voted for me, I ask that you continue to believe in our policies and plans for the country. I also ask that you reach out to your brothers and sisters who did not vote as you did. Extend to them the hand of friendship, reconciliation and togetherness. To those of you who did not vote for me, I ask you to believe in Nigeria and in the capacity of your fellow citizens, even those who voted differently than you. The better Nigeria I seek is not just for me and my supporters. It is equally yours.

 I do not ask you to abandon your political preferences. That would be undemocratic.  I do beseech you to answer the call of patriotic duty as the loyal opposition.

 Remain loyal to the cause of a greater, more tolerant and just Nigeria. I too shall keep faith with this objective.

 If we all play our proper roles, we shall begin the task of rebuilding our national home together, day by day, brick by brick notwithstanding our political differences.

 As such, the victory of national progress will belong to all of us. The triumph of our nation’s democracy shall cite all of you as its very authors.  This is how things should be.

 Dear Nigerians, this is our country. This is our moment. We dare not waste it. Nor do we back away to accept a lesser version of ourselves and of our collective fate. We can no longer be satisfied with calling ourselves the giant of Africa.  We must devote ourselves to doing those great and historic things only a giant can do. As your president elect, I shall do my utmost in this regard for this is my sworn duty.

 I call upon you to come bravely forth as well, not for me but out of abiding love of country and for the people who inhabit it with you. We are so much better than we have been.  Now is the time to stand fast and have faith in what this nation can be.

 I, for one, am standing. But this time, I shall not be the last or only one standing. Imagine how great  we can be if over 200 million other souls stand with me. Let the world see  a Nigeria that nothing can stop.

•Asiwaju Tinubu is President -Elect

By Cornelius Gabriel

The Independent National Electoral Commission (INEC) conducted the Presidential and National Assembly Elections and has declared Asiwaju Bola Ahmed Tinubu the President-Elect.

The declaration has since been rejected by his opponents Atiku Abubakar and Peter Obi who have vowed to challenge the outcome of the election in court.

As a result, the need to consider the grounds for challenging an election arises.

Section 134 of the Electoral Act, 2022 provides that a party that intends to challenge the process and or outcome of an election can do so on the following grounds:

A person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b) The election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or

(c) The respondent was not duly elected by the majority of the lawful votes cast at the election.

The ground on non-qualification

To contest an election in this context, the candidate must be qualified to do so.

It is a constitutional requirement that must be met otherwise the candidate will be deemed not qualified to contest.

According to Section 134(3) of the Electoral Act 2022, a person is deemed to be qualified for an elective office and his election shall not be questioned on the grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of Sections 65, 106, 131 or 177 of the Constitution and he is not, as may be applicable, in breach of Section 66,107,137 or 182 of the Constitution.

The implication of the above is that where it is satisfactorily proven by the petitioner before the tribunal that the winner of an election is not qualified to contest the election therefore the candidate who came second will have to be declared the winner of the election.

Ground of corrupt practices

An election can be questioned on the grounds that it was invalid by reason of corrupt practices or non-compliance with the provisions of the Act.

The Electoral Act, the Regulations and Guidelines for the conduct of Elections regulate the conduct of elections.

This places a compulsory duty on INEC to adhere to the provisions of the above laws in order to have free, fair and credible elections and a breach of the Act and Guidelines has far-reaching consequences.

For instance, the failure of INEC to upload election results to the INEC Result Viewing Portal (IREV) in real-time using the BVAS, electoral violence, disenfranchisement of voters, intimidation, manipulation of election results, mutilation of result sheets etc are all incidents of corrupt practices and non-compliance, which the Electoral Act frowns at and are grounded upon which an election can be challenged.

The court in Iniama v Akpabio (2008) 17NWLR(pt.1116) 225; Oke V Mimiko (2014) 12 NWLR (PT. 1388) 322 etc held that a petitioner who pleads corrupt practices and non-compliance with the Electoral Act must establish by evidence their effects on the outcome of the election.

That is, for a petition to succeed under these grounds, it must be proven that there was non-compliance and that the non-compliance substantially affected the result of the election.

It is worthy of note that Section 137 of the Electoral Act, 2022 provides that it shall not be necessary for a party who alleges non-compliance with the provision of this Act for the conduct of elections to call oral evidence if the originals or certified true copies manifestly disclose the non-compliance alleged.

Not having majority of lawful votes cast

For a petitioner to succeed on this ground the evidence adduced in support of the allegation should come directly from the officers who were on the field where the votes were counted and or collated.

This requires party agents from each polling unit where corrupt practices are alleged must be called to testify in court as evidence of a person who merely received the figures without being present is hearsay which is not admissible.

The court is, therefore, not going to rely on the testimony of agents from other polling units or other wards.

The attitude of our courts has been to treat the testimony of agents from other polling units as hearsay evidence which is not admissible. See: BUHARI V OBASANJO (2005) 13 NWLR (P. 941)

Time to file

The election petition must be filed within 21 days after the date of the declaration of the results of the elections.

The Tribunal shall deliver a judgment in writing within 180 days from the date of the filing of the petition.

This is as stipulated in Section 132(7 & 8) of the Electoral Act, 2022.

Failure to comply with this time frame will be fatal to the petition of the petitioner.

Conclusion

The electoral process in Nigeria has not been anything close to having a world-class standard of a free, fair and credible election.

However, the Electoral Act 2022 made some innovations that will not only help in conducting free and fair elections but also help in having a good election petition.

The introduction of the BVAS and IREV promises to create a new dimension in proving election petitions.

• Gabriel, a litigation and dispute resolution expert, is an Associate II at Olisa Agbakoba Legal (OAL).

By Collins Okeke

It is estimated that about 92 million of the over 200 million people, that make up the entire population of Nigeria have no access to electricity. Where access to electricity is available, a full day of uninterrupted supply is not guaranteed.

Despite the abundance of natural energy sources, Nigeria faces significant electricity supply challenges stifling industrial growth, limiting commercial ventures’ expansion and profitability, and the well-being of people. Presently, the primary energy sources are gas and hydroelectricity.  Although the country is diversifying to renewables, progress is extremely slow.  This article makes the case for investments in Nigeria’s renewable energy.

Why renewable energy?

According to the International Energy Agency (IEA) ‘Renewable 2020’ report, Renewable energy capacity is set to expand by 50 per cent between 2019 and 2024, led by solar energy. Solar, wind, and hydropower projects are rolling out at their fastest rate in four years, making the argument that the future lies in using renewable energy.

Energy security concerns caused by Russia’s invasion of Ukraine have motivated countries to increasingly turn to renewables such as solar and wind to reduce reliance on imported fossil fuels, whose prices have spiked dramatically.

Global renewable power capacity is now expected to grow by 2,400 gigawatts (GW) over the 2022-2027 period, an amount equal to the entire power capacity of China today, according to Renewables 2022.

This massive expected increase is 30 per cent higher than the growth forecast just a year ago, highlighting how quickly governments have thrown additional policy weight behind renewables.

The report finds that renewables are set to account for over 90 per cent of global electricity expansion over the next five years, overtaking coal to become the largest source of global electricity by early 2025.

Nigeria’s location in the tropics offers an abundance of sunshine all year round with over 2,600 hours of sunlight per year (about 7 hours of sunlight daily, on average). Experts believe Nigeria has the economic war chest and environmental conditions to tap into renewable energy sources, especially solar.

Estimates by the World Bank suggest that investing in solar-powered plants could increase the availability of electricity to almost 80 million people who currently have none. This means transitioning to solar-based energy could help diversify Nigeria’s energy portfolio and reduce high electricity bills.

Legal, regulatory, policy incentives

Nigeria is not oblivious to the global trend and many opportunities and so is progressively evolving policy and regulatory frameworks to incentivize renewable energy such as the National Electric Power Policy 2001, Renewable Electricity Policy Guidelines 2006, and Electricity Power Sector Reform (EPSRA) Act 2005.

The EPSRA is the principal law that governs the Nigerian power sector. It also establishes the Nigerian Electricity Regulatory Commission (NERC), the principal regulator of the power sector in Nigeria.

The NERC in performing its functions has established several policies and regulations like the NERC Mini-Grid Regulation 2016, NERC Renewable Energy Feed-In Tariff Regulations 2015, and recently the Independent Electricity Distribution Network (IEDN) licence.

Aside from laws and policies, the Federal Government of Nigeria (FGN) has put incentives such as the VAT (Modification Order) 2020. This exempts specified renewable energy equipment from the application of VAT with respect to the importation or in-country sale of the equipment.

The Federal Government also launched the Solar Power Naija Project. The project focuses on providing five million households with solar home systems for off-grid communities, under the Nigeria Economic Sustainability Plan (NESP).

The implementation of the project is facilitated by the Central Bank of Nigeria, which will make available N140 billion (approximately US$ 340 million) in direct and indirect loans to qualifying projects. Multilateral agencies and institutional investors have made impact investments in players in the sector.

For example, the World Bank and the African Development Bank (AfDB) are currently partnering with the Rural Electrification Agency (REA) with respect to the Nigeria Electrification Programme with a US$350million commitment from the World Bank, and about US$148million from the AfDB. According to the REA, the programme has so far provided electricity to five million consumers.

The International Finance Corporation has launched a sustainable energy financing and advisory programme, the Climate Change Investment Programme for Africa, which will provide funds and advisory services to banks to help them increase financing for private sector energy efficiency, renewable energy, and cleaner production projects.

Similarly, the EU has committed about US$47million in funding for renewable energy projects in emerging markets, including Nigeria. These efforts appear to be yielding fruit, as many significant renewable energy projects are coming on-stream.

In addition to a large number of mini-grids and small-scale solar Independent Power Projects (IPPs) springing up across the country, the Federal Government is also taking steps to boost the existing hydroelectric generation capacity, with the concession of Gurara Hydropower Project, the proposed concession of the Zungeru Hydropower Project and the planned development of the 3,050 MW Mambilla Hydropower Project.

Conclusion

Renewable energy will continue to rise in the upcoming decade, edging out fossil fuels and reducing greenhouse gas emissions. Governments worldwide, including Nigeria, are making laws, policies, and regulations to diversify to renewables.

Energy companies must work to take advantage of existing incentives and opportunities such as marketing opportunities, reduction of emissions, lower energy costs, and many others.

•Okeke is an Associate Partner/Head of the Public Sector Practice Group at Olisa Agbakoba Legal (OAL).

By Chile Eboe-Osuji

Since INEC’s announcement of the Nigerian presidential election results, I have sent out a tweet in my Tweeter handle @EboeOsuji. It was motivated by what must be the feelings of grave disappointment for the 14.4 million Nigerians voters who did not vote for the President-elect Asiwaju Tinubu, who received 8.7 million votes, as his supporters celebrate victory. In my tweeter, I recalled Robert Kennedy saying, “Democracy is messy and it’s hard. It’s never easy.” Richard Galen, another American political strategist agreed. “Democracy is messy,” Galen said. “It is messy whether you’ve been doing it since 1789 or whether you’re going to do it for the first time in 2005. The trouble with Democracy is, you hold elections. The trouble with dictatorships is … you don’t.”

 I added my own observation that the real trouble, of course, is that only one person will be declared the winner of any contested seat, and others who worked just as hard or even harder must put up with depressing feelings of disappointment. I commiserated with those experiencing that feeling in the outcome of the Nigerian presidential election. I urged them to accept the declared result, for the sake of the country they love so dearly. In doing so, they would have been performing the most important public service that they could possibly perform in these delicate moments.

There will be those who will argue that part of the messiness of democracy is that there are always irregularities—be it in the United States elections or in Nigerian elections. It is unhelpful to dwell on a comparative analysis of frequency or scale. And there will be those who will argue that given such irregularities, it is impossible to envisage a scenario when the side that did not win will accept the results of an election as free and fair. That circumstance tells us that the only people who celebrate the outcome of an election are only those who are declared winners. It does not matter the margins with which they win. INEC declared Tinubu as having garnered 8.7 million votes, Atiku Abubakar 6.9 million, Peter Obi 6.1 million and Rabiu Kwankwanso 1.4 million. Naturally, the only interested Nigerians who are happy with those results are Tinubu and his supporters. It goes without saying that if the vote distribution remains the same but only the names of the candidates are switched around in any configuration, Abubakar, Obi or Kwankwanso and his supporters will now be beaming with joy for having received 8.7 million votes—Tinubu and his supports will be complaining of election irregularities. It means, in every case, that any presidential election will leave millions of Nigerians unsatisfied with the outcome. That is the primary reason that democracy is messy and unsatisfactory. We may recall Winston Churchill’s observation that “democracy is the worst form of government except for all the others that have been tried.” Perhaps, Switzerland, as they often do with things, have the best job of managing the messiness of attaining power through elections. There is no one person that is readily identified at any given time as “the” President of Switzerland. That function is served by the Federal Council, made up of seven members. The members take turns on a yearly-basis serving as the president of the Federal Council—thus serving in effect as the president of Switzerland—but only for the one year at a time. Perhaps, Nigerians (and Americans, too!) should try the Swiss approach. It diffuses the importance of political power in any individual, as it emphasises, instead, the value of sharing it.

For now, however, we must make the best of the system we have. And it is not the Swiss system. Perhaps, the trick is to remember how we feel when the Super Eagles lose important matches—a heartbreak that every Nigerian knows all too well. It is the same feeling that any Nigerian must have if the election return certificate is presented to the candidate (s)he did not support. It is an inevitable feeling of disappointment that we must learn to live with. Nigerians must not allow those feelings to control our actions and our lives. Life will be much more difficult for us individually and for the country we love. I know, more than most, how that can be so. As a senior functionary at the International Criminal Court, I saw how some of the leading lights of Kenya and Cote d’Ivoire ended up on the docks of the ICC, when the post-election passion had cooled off, simply because they could not manage the negative emotions that is constant every election. That is not a story that any politician would want for himself. I urge all those who did not win to accept the result and to channel the same pre-election energy into the post-election demands of nation-building that Nigeria needs to become the nation of our hopes of dreams.

•Eboe-Osuji, LLB, LLM, PhD HLF was President of the International Criminal Court from 2018 to 2021. He is now the Distinguished International Jurist at the Toronto Metropolitan University, and the recipient of the Emeka Anyaoku Life-Time Achievement Award for Outstanding Contribution to the International Community.