Introduction
The controversies arising from the conduct of the 2023 General Elections are yet to abate, and might not for a while. The outcome of the elections have been challenged, with numerous petitions presented to the various Tribunals, and at least five petitions to the Court of Appeal sitting in its Original Jurisdiction to hear petitions arising out of the conduct of the Presidential election of 25th February, 2023.
Upload of Results
Arguably the most contentious issue which has arisen from the conduct of the election, is the failure (or inability) of the Independent National Electoral Commission (INEC) to upload results (especially the Presidential results) to the iRev portal ‘real time’, as promised by it before the election, and as it had done with some off-cycle elections previously, the most recent of which was the Osun Governorship election. This, no doubt, enhanced transparency, and built confidence and trust in the process and the ability of INEC to deliver credible elections. The combination of the Bi-Modal Accreditation System (BVAS) and iRev, were seen as ‘game changers’.
The failure to upload the polling unit results real time, has formed the basis of most post-election discussions, and not surprisingly, it forms one of the planks for challenging the outcome in some of the petitions. While many saw it as a deliberate act to undermine the process and alter the results, INEC both in its public statement and in its Reply to one of the petitions, put it down to ‘technical glitches’.
Much has been said and written by Lawyers and lay people alike, as to the law and the effect or consequence of the failure to upload or delay in uploading the results, electronic transmission from the polling units and on collation of results, with divergent views expressed. Many have been scholarly and insightful, while others have been built on misconceptions on what the law says. This paper is partly in response to some of these commentaries, particularly the conclusions of my dear friend and colleague, Onikepo Braithwaite in her column, ‘The Advocate’ in Thisday of April 11, 2023, to the effect that the Electoral Act, 2022 ‘does not provide for electronic transmission of results’ and that ‘not using iRev to transmit election results is not fatal to the elections’ and partly on the reaction to my interview on Channels Television on the same day. Some of the reports wrongly quoted me as saying that ‘electronic transmission is not compulsory’ (which I never said, but apparently confusing my reference to electronic collation not being known to the Act). Do the opinions of these commentators on electronic transmission and collation reflect the correct legal position?
Before considering the question, we shall, conscious of the fact that the matter is pending and the subject of judicial scrutiny, hence, sub judice, limit our discussion to the statutory provisions, outline the issues but refrain from drawing conclusions on specific issues which are to be determined.
Statutory Provisions
What may be surprising to some is that the Electoral Act does not specifically mention BVAS or iREV. These are coinages of INEC which can be found in the Regulations and Guidelines for the Conduct of Elections, 2022, its various manuals and in its statements. What the Act refers to is ‘The Smart Card Reader or any Technological Device. The Act also does not state that voting or collation of results may be done electronically. The process of voting, collation and announcement of results, is still by and large manual, contrary to the belief in some quarters. But, technology is recognised, and has an important role to play as we shall see shortly.
The process of registration of voters and compilation of the register of voters and the Permanent Voters Cards (PVCs) has been digitalised, dating back over two decades. Building on this, the Electoral Act has now made the process of electronic accreditation mandatory (Section 47(2) and (3)) utilising the Smart Card Reader or ‘any technological device’. However, Section 50(2) provides that ‘transmission of results shall be in the manner prescribed by the Commission’ and Section 60(5) stipulates that, ‘the presiding officer shall transfer the results …..in a manner prescribed by the Commission’. The presiding officer is expected to deliver the result ‘..along with election materials ……..to such person as may be prescribed by the Commission. (Section 62(1)).
While the words transmission and transfer are used interchangeably in both the Act and in the Regulations, it is implied that this format is electronic, while the act of delivery under Section 62 is manual. Support for this may be found in Section 64(4) of the Act, which makes comparison of results between those delivered to every collation and returning officer manually with those ‘transmitted directly from the polling unit’, and which comparison is a necessary or mandatory pre-requisite for every collation. The section provides that such officers:
‘Shall collate and announce the result of an election, subject to his or her verification and confirmation that the –
b) The votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from the polling units….’
Our position is reinforced by the INEC Regulations and Guidelines which is more explicit. Paragraph 38 requires the presiding officer to
i) ‘Electronically transmit or transfer the result of the polling unit direct to the collation system…’
ii) Use the BVAS to upload a scanned copy of the EC8A (result) to the INEC Result Viewing Portal (iReV)…..’
This position is further reinforced by Paragraph 48 of the Regulations, which provides, inter alia;
a) An election result shall only be collated if the collation officer ascertains that the number of accredited voters agrees with the number recorded in the BVAS and votes scored by political parties on the result sheet is correct and agrees with the result electronically transmitted or transferred directly from the polling unit…’
It will be seen from the above that the iReV is separated from the ‘Collation System’ in the Regulations. We postulate however, that the results should be exactly the same, whether in hard copy, in the collation system or in the iReV, as it is the same result, which image is being uploaded, transferred or transmitted, the idea being that any changes or alterations in the original will be apparent to the Collation/Returning Officer when he makes the comparison with the electronically transmitted result before collation, as envisaged in section 64(4). Where these are at variance or there is a dispute in the collated result, the Collation or Returning Officer shall rely on the procedure outlined in Section 64(6), (7) and (8) of the Act, relying on data directly transmitted from the polling units.
Some commentators have referenced pre-election statements made by INEC officials, that the results would be transmitted ‘real time’. This cannot be found in the Act or Regulations. While no time limit is stipulated in the law, going by the chronological procedures, it is expected that uploading, transfer or transmission be done before the presiding officer leaves the polling unit, and before he proceeds to hand over the result sheet and other electoral materials. There is a common law doctrine of ‘Legitimate Expectation’ which in FBIR v Halliburton (W.A) Ltd (2016)4 NWLR (Pt 1501) 53 was said at page 98 to postulate that,
“where a public body or person acting in public authority has issued a promise ….the members of the public who are to be affected by the scheme of conducting public affairs in the chattered manner would by law require the promise or the practice to be honoured or kept by the public body or person ….save there exists sound basis not to insist on the settled scheme of conducting public affairs. The doctrine, therefore, enjoins public bodies to be fair, straightforward and consistent in their dealings with the public”.
It should be noted that, election related matters are wholly governed by statute or the Constitution. The right to vote or be voted for is not a common law right, but must be traced to these legal instruments. And expressly stated by the Court of Appeal in FBIR v Halliburton (Supra at 99), the clear and unambiguous statutory provisions override the application of the doctrine.
Although the unreported decision of Adeleke v Oyetola (CA/EPT/GOV/01/2023) delivered on 24/3/2023 affirms mandatory electronic transmission, does the law envisage a situation where there is no transmission from the polling unit? Yes. Paragraph 48(c) of the Regulations and Guidelines for the Conduct of Elections 2022 provides thus:
“If no result has been directly transmitted electronically from a polling unit or any level of collation, the provisions of Clause 93 of these Regulations shall be applied”
Surprisingly, the provisions of Paragraph 93 of the Regulations which was referred to in Paragraph 48 (c) above as the applicable provision to fall back to in a situation of non-transmission of results did not in any way deal with the effect or otherwise of non-transmission of results.
Effect of Non-Compliance
So, what then is the effect of non-compliance with the requirement that comparison be made between the directly transmitted result and the manual original before commencement of collation? Section 60(6) penalises all presiding officers who wilfully contravene the provision. As to the effect of non-compliance on the election, wise counsel prevents us from answering as it is one of the determinations to be made by the courts and tribunals. It should be noted however, that not all non-compliance are fatal, as Section 135(1) of the Act says no election shall be invalidated if it appears to the Court or Tribunal that the election was conducted ‘substantially in accordance with the principles of this Act and the non-compliance did not affect substantially the result of the election’. What the law requires is substantial compliance. So, what amounts to substantial compliance, and how do the courts determine whether such substantially affected the outcome of the election?
Following the non-serialisation of the ballot papers in the 2007 Presidential election which was a breach of the then extant Electoral Act of 2006, the Supreme Court by the narrowest of margins (4 to 3) in Buhari v INEC (2008) 19 NWLR (Pt. 1120) 246, held that there was substantial compliance with the law and the Petitioner did not prove how the non-compliance substantially affected the outcome, hence, this was not fatal. It therefore, refused to annul the election. Is the current breach, more fundamental than that? Is it a mere procedural irregularity or a substantial deviation from, and non-compliance with a mandatory provision of the Act? Has the attitude of the Courts changed in these 16 years? Faced with a similar scenario, will the Nigerian Supreme Court follow its Kenyan (2017) and Malawian (2020) counterparts in overturning the declaration and annulling the Presidential election?
Oluwole Osaze-Uzzi, Legal Practitioner; former Director, Legal Services,
