By Martins Oloja

This question has become inevitable because of the inexplicable failure of the presidency to inaugurate the most important institution of governance the Public Procurement Act 2007 Creates for the purpose of protecting public funds by fighting corruption in the public sector. This presidential fear of the Public Procurement Council is now 16 years old. And even the outgoing President Buhari who campaigned with this weapon of fighting corruption in the public sector in 2015 has failed to institutionalise public procurement council eight years on. This is quite disappointing. And that is why it is pertinent to sensitise the incoming presidential bureaucracy that public procurement council should be part of the first deals in the first 100 days in office. It is in public interest.

The Public Procurement Act 2007 establishes the Bureau of Public Procurement as the regulatory authority responsible for the monitoring and oversight of public procurement, harmonising the existing government policies and practices by regulating, setting standards, and developing the legal framework and professional capacity for public procurement in Nigeria.

And more important here, the ‘National Council on Public Procurement’ is the governing body on issues relating to public procurement in Nigeria. It is a high-level organ with approval powers on issues relating to the administration and management of public procurement under the Public Procurement Act of 2007.

On May 13, 2018, here I asked in this column:

‘When will the National Procurement Council be inaugurated? When will the President allow the Federal Executive Council (FEC) to share some powers with the legal Council on Public Procurement generally known as ‘contracts award’ at the federal level?

I had then assured the nation that: ‘Answers to these 11-year-old questions will no longer blow in the wind, as the Council will be inaugurated sooner than later”. I had then explained the rationale for my optimism then this way:

‘This is official, thanks to the wind of change subscription to the strategic “Open Government Partnership” is fast bringing to the way corruption is being fought in the country.

In the first week of May 2018, I was an active participant at the “Open Government Week” in Abuja where a reference to the absence of the Public Procurement Council since 2007 as part of some hindrance to an ‘open government’ led to the confirmation of government readiness to inaugurate the long-neglected Public Procurement Council. In fact, it was confirmed by the Permanent Secretary in Charge of General Services Office (GSO) in the Office of Secretary to the Government of the Federation on Day Four of the 5-day conference.

The Permanent Secretary, General Services Office, (GSO) Mr. Olusegun Adekunle then who represented the SGF, Mr. Boss Mustapha was present at the Monday opening ceremony the Vice President, Professor Yemi Osinbajo declared open.

In response to my observation and a written question by as a participant on when the Procurement Council would indeed be inaugurated since 2007 when the then President Umaru Yar’Adua signed it into law, the Permanent Secretary Adekunle said, “The Council has in fact been constituted and its inauguration will be done very soon”. And spontaneous applause followed the clear answer to an 11-year-old conundrum and anxiety then – for inauguration of the Council.

That was part of the highlights of the Open Government Week 2018, which ended at that weekend (May 10, 2018) in Abuja.

The conclusion of the whole matter then was President Muhammadu Buhari would take the glory of inaugurating the first-ever Public Procurement Council (as provided by law) to deepen public engagement and involvement in procurement processes, being the starting point of corruption in the public sector. He hasn’t till the present.

Specifically, three past presidents have failed to inaugurate the Council.

President Olusegun Obasanjo’s government actually prepared the executive bill on Public Procurement. The National Assembly then passed it but failed to sign it into law. So it was with Fiscal Responsibility Bill, he also failed to sign into law as submitted too by the Clerk National Assembly then in 2007. But Obasanjo didn’t veto the two Bills. He however refused the content of the third legislation, the Freedom of Information Bill. It was a tripartite arrangement to enhance citizens’ access to information and deepen accountability and transparency in public service.

The brass tacks: On June 4, 2007 then President Yar’Adua signed the Public Procurement and Fiscal Responsibility Bills into law. But he failed to inaugurate the Council, which would have removed contracts award from the FEC that has been acting as Tenders Board – till date.

Curiously, despite promises made during the 2015 election, President Muhammadu Buhari too has failed to inaugurate the National Council on Public Procurement, (NCPP) as required by the Public Procurement Act 2007. Instead, the Federal Executive Council, FEC, under the leadership of the president, continues to usurp the most important function of the NCPP: approval of contracts.

The Public Procurement Act provides for the establishment of the NCPP, and the Bureau of Public Procurement, BPP, as the regulatory authorities responsible for the monitoring and oversight of public procurement as well as harmonising existing government policies and practices.

The Act was put in place to allow transparency and ensure public participation in government procurement.

Although President Yar’Adua, who signed the bill into Law, failed to inaugurate the NCPP until his death in office, his successor, Goodluck Jonathan, who stayed in office for six years also failed to inaugurate the Council.

As I had noted here in 2018, that President Jonathan’s spokesperson, Dr. Rueben Abati once asked ‘The Guardian a rhetorical question in a story I did on the thorny issue for the newspaper: “What would you want the FEC to do after inauguration of the Council”, he asked. Which explained why an amendment Bill was sent to the Session of the National Assembly then.

The amendment had sought to remove the power of Tenders approval from the Procurement Council and retain it in FEC. Membership of the Council according to the Act should comprise 12 members to be appointed by the President. While six of the members are government officials, the other six are drawn from relevant professional organisations.

Those from the government side, considered permanent members, include the Minister of Finance, who serves as Chairman, and the Director General of the BPP as Secretary. Others are the Attorney General of the Federation and Minister of Justice, the Secretary to the Government of the Federation, the Head of Service, and the Economic Adviser to the President. Those representing professional bodies are drawn from the Nigerian Bar Association, the Nigerian Institute of Purchasing and Supply Management, the Nigeria Chamber of Commerce and Industry, Mines and Agriculture, the Nigeria Society of Engineers, a representative of Civil Society Organisations, and the media.

The FEC, the constitution provides as Executive Council of the Federation is made up of the president, the vice president, all the ministers, and some presidential advisers; meaning the president and his political appointees who are all less likely to question his decisions.

The failure of the government to set up the Council means that the FEC continues to approve contracts to be executed by its members. And that is why procurement processes have become a critical part of why the public sector has become a bane rather than a boon to Nigeria since 1999. Obasanjo began the process and so unfortunately, no government after him has embraced the reform of the public sector and that is why the country, the same Obasanjo cleared of debt in 2006 has returned to a debt trap, no thanks to ineptitude and unbridled corruption in the outgoing Buhari administration. If the public procurement and fiscal responsibility nurtured by access to information mechanisms have worked we would have been very close to being the African giant and strong tower of the black race we are destined to be.

It will be recalled that candidate Buhari had in a document circulated during the 2015 campaigns titled ‘My covenant with Nigerians’ promised to “inaugurate the National Council on Procurement as stipulated in the Procurement Act so that the Federal Executive Council, which has been turned to a weekly session of contract bazaar, will concentrate on its principal function of policy making”.

Although after assuming office, the president disowned the document. A fact check later showed that the procurement-policy document was produced by the policy and research directorate of the APC presidential campaign, headed by the then Minister of Solid Minerals Development and former Governor of Ekiti State, Kayode Fayemi, when the party was trying to convince Nigerians to abandon the then ruling party, PDP.

I had on September 16, 2016, written on the same issue here in an article titled: “Where is the Public Procurement Council? (https://guardian.ng/opinion/where-is-nigerias-public-procurement-council/)

Below is an excerpt from the column (article), which addresses the urgency of the public procurement council.

“…But then it is time for the president to overhaul the federal bureaucracy to prevent corruption. And here is the thing, even if the president continues ruthlessly alone as a fundamental objective without involving the civil service of the federation, even by 2019, the result will be that yes, he fought some corrupt people without really fighting corruption. And so the war would have been lost… Therefore, the president should step forward and use an existing law to begin institutionalization of the anti-graft war at the highest level…The Freedom of Information Bill, which was also ready in Obasanjo’s time was not signed into law until May 28, 2011 by the then President Goodluck Ebele Jonathan….”

The whole process would also have been enhanced in the Buhari administration by the Open Government Partnership (OGP) mechanism, a multi-stakeholder initiative focused on improving transparency, accountability, and citizen participation, which also engenders responsiveness to citizens through technology and innovation. The OGP process brings together, government and civil society champions of reforms who recognize that governments are more likely to be more effective and credible when governance is made open to public input and oversight.

The OGP was launched to provide an international platform for national activists committed to making their governments more accountable, and more responsive to citizens in their quest for transparency. At the national level, the OGP introduces a domestic policy mechanism where the Government and civil society can have continuous dialogues on effective transparency policies.

At the international level, the OGP provides a global platform to connect, empower and support domestic reformers committed to transforming governments and societies through openness. It is indeed a multilateral initiative aimed at securing solid commitments from Governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

In 2011, the OGP was formally launched when the governments of Brazil, the Philippines, South Africa, the United Kingdom, and the United States endorsed the Open Government Declaration and went further to announce their individual country action plans. The success of the OGP process per country, lies in the implementation of the National Action Plan, as it provides an organizing framework for international networking and incentives. In July 2016, Nigeria joined the Open Government Partnership (OGP) as the 70th country.

Nigeria’s joining of the OGP process demonstrates a strong political will to dismantle existing structures, which have assisted the long presence of corruption, including opacity, and ineffective governance caused by a lack of accountability in the country’s institutions.

This is why it is important for the incoming administration to inaugurate the National Council on Procurement (NCPP) as soon as it is sworn it to begin the process of using public institutions to rebuild our broken system that nurtures our underdevelopment.

This article was first published by Guardian Nigeria on 30 April 2023

By Chidi Anselm Odinkalu

Evidence of the scope of the mess created by Nigeria’s Independent National Electoral Commission (INEC) under the crooked leadership of Mahmood Yakubu began to emerge this past week. It all suggests network egregiousness on a monumental scale that easily rivals the elections of 2007 until now seen as the nadir in Nigeria’s journey of elective governance.

As the National Judicial Council (NJC) released the names of the 257 judges who will sit to consider and decide on elections petitions around the country beginning in May 2023, it emerged this past week that so far 1,044 petitions have been filed against results declared by the INEC in the 2023 elections. That is already more than 70% of the 1,490 seats contested and it appears that these are not the final numbers.

The relationship between election petitions and the acceptability of elections in Nigeria is one of direct proportionality. Candidates and parties who believe that the results reflect the will of the people are generally disinclined to continue the contest and more expenditure through the courts. Those who do not so believe re-litigate the contest through the courts. The numbers tell the story.

Some 1,299 petitions, representing about 86.35% of the seats contested in 2007 ended up before the courts, a fact that prompted The Economist to describe Nigeria as a “democracy by court order”. With a mere 10 months to prepare and deliver the 2011 elections, Professor Attahiru Jega whom President Goodluck Jonathan appointed in 2010 to replace the rampant Maurice Iwu at the leadership of INEC, cut the number of petitions by nearly 58% to 751 in 2011. In 2015, the last election conducted under Professor Jega, there were only 677 petitions, or 45.4% of the seats on offer.

By contrast, with four years to deliver the 2019 elections, Professor Mahmood Yakubu managed to grow the number of petitions from the 677 he inherited in 2015 to 811 petitions, or 54.4% of the contested seats. Four years later, the bottom has fallen off the system of electoral administration under his watch, with the proportion of petitions guaranteed to be much nearer where they were in 2007. Only a fool will believe that the judiciary can clean up this mess.

In many ways, the drama that accompanied the Adamawa State governorship elections embody everything wrong with the INEC under the watch of Mahmood Yakubu. In that contest, the Resident Electoral Commissioner (REC), who goes under the appellation of “Barrister” Yunusa Hudu Ari, on 16 April and with full protection from senior officers of the Nigeria Police Force and allied security services, announced fake results without numbers and without authority, forcing an INEC hierarchy steeped in electoral scandal to make song and dance of disowning the declaration.

The antecedents to this development, as well as the aftermath, should detain us.

Like the Chairman of INEC, “Barrister” Hudu Ari is from Bauchi State; and like the INEC chairman, he came from a supply pipeline that appears to bear the fingerprints of the Attorney-General of the Federation. In his home state, Bauchi, Yunusa Ari had worked as a civil servant, before retiring as a Permanent Secretary. He also previously served as secretary to the Bauchi Branch of the Nigerian Bar Association, NBA.

But these were not what qualified him to be appointed a REC. His claim to fame is that he was chummy with the Attorney-General of the Federation. According to Leadership Newspaper, “Yunusa was classmates with the minister of justice and attorney-general of the federation, Abubakar Malami”, and “the age-long relationship between Yunusa-Ari and Malami played a crucial role in his emergence as REC.”

Less than eight months before the 2023 elections, in July 2022, President Buhari transmitted Yunusa Ari’s name to the Senate for confirmation as one of a cohort of 19 REC nominees. His identification with the ruling party was well known. Far from disqualifying him as the applicable laws required, these credentials of partisan propinquity made his nomination all the more appealing, guaranteeing his confirmation. Now that the elections are over, INEC admits that many of these RECs nominated by Buhari in 2022 “were clearly partisan and, to make matters worse, some were deployed to states where they had sympathy for the ruling parties.”

After Yunusa Ari’s criminal announcement of a non-existent result, the INEC headquarters intervened purportedly to disown his conduct and summon him to Abuja. From the venue of the announcement, meanwhile, Yunusa Ari headed to the airport in Yola all the time under high-level Police protection, where he boarded a private jet. He did not turn up in Abuja to answer the summons of his employers, however. Instead, the same employers went public to claim that he had vanished and they could not find him. The Police, under whose protection he acted up to the point of vanishing, suddenly announced an investigation into what happened.

If this all sounds like coordinated institutional hyperventilation manufactured for a cover-up, it is because it probably is. The possibility that Yunusa Ari could have acted this script all by himself and without coordination with other agencies or with people higher up the political and institutional food chain is less than zero. It is equally impossible that he could have left Yola on a private jet that then vanished from the airspace. Air Traffic Control had to have cleared the flight and the manifest had to have been filed with the Civil Aviation Authority, all federal agencies. Bringing him to account would entail unmasking this command chain of complicity and conspiracy.

Hours after Yunusa Ari’s fake declaration, Aishatu Dahiru, the serving Senator whom he sought to benefit in the Adamawa governorship contest, went to the Federal High Court in far away Abuja, asking it to affirm her as winner of the election. She did this by way of an ex-parte application, essentially asking the court to decide this matter without hearing any of the other parties in the contest or the INEC whose REC purported to declare her the winner. The court invited her to show how it had jurisdiction over her claim. Rather than do that, her lawyers elected to ask the court for permission to discontinue the case. But, instead of granting her application, the court dismissed it.

While he is supposedly a fugitive, meanwhile, Yunusa Ari has apparently been busy firing off missives to the police, the security services, and suing his employers. His address is presumably undisclosed and undiscoverable. The leadership of the Nigerian Bar Association, whose membership he advertises when he ostentatiously describes himself as a “Barrister”, has studiously averted its gaze from the peregrinations of this infamous member despite the demand of many of its members for the Bar leadership to take steps to discipline him. Similarly, the Attorney-General of the Federation does not appear to have taken notice.

If they were to choose to, the leadership of the Bar as well as the Attorney-General of the Federation would have remembered that Rule 1 of the Rules of Professional Conduct in Nigeria’s Legal Profession precludes every lawyer from “any conduct which is unbecoming of a legal practitioner.”

In a country in which the richest lawyers make their billions from inventing technicalities to justify crooked election results, it is no surprise that those who lead the Bar are unwilling and unable to notice that announcing fake election results and disappearing thereafter into thin air is not something that should be associated with a lawyer, especially not one who claims to be a “barrister”. But then again, anyone who feels a need to be addressed as “barrister” is probably far from fit for purpose, anyway.

A lawyer & a teacher, Odinkalu can be reached at [email protected]

By Sylvester Udemezue

1. Clauses 48 and 93 of the Regulations and Guidelines on Electronic Transmission

This author is of the view that a combined reading of section 47, 50(2), 60(5) and 64(4)-(8) ^I of the Act and Clauses 38 and 48(a) of the Regulations and Guidelines appears to show that e-transmission of election results from the polling units is mandatory, not directory.^II, and that non-compliance with the requirement may be a ground for nullifying an election conducted under the Act, depending on the extent of non-compliance. However, some writers have relied on the provisions of Clauses 48(c) and 93 of the Regulations and Guidelines to suggest that the requirement is not an indispensable requirement of the the result collation process.^III It is hence considered necessary at this juncture to analyze the provisions of Clauses 48(c) and 93 alongside other provisions, to try to see whether real-time electronic transmission of results is mandatory or directory. A provision in a statute is said to be mandatory if the omission to follow it renders the proceeding to which it relates illegal and void, while a provision is said to be directory if its observance is not necessary to the validity of the proceeding. An article by Jim Evans, published by Cambridge University Press under the title “Mandatory And Directory Rules”, explains that “mandatory rules are those procedural rules the breach of which necessarily invalidates the process to which they relate, while directory rules are procedural rules the breach of which does not necessarily have this effect”.^IV Clause 48 of the Regulations and Guidelines deal with “Use of Results Electronically Transmitted or Transferred Directly from Polling Units for Collation” while Clause 93 deals with “Collation Where INEC Hard Copy of Results Do Not Exist and Use of Duplicate Hardcopies from Other Agencies”. Clause 48 provide as follows:

• 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 as prescribed in these Regulations and Guidelines. (b) If a Collation or Returning Officer determines that a result from a lower level of collation is not correct, he/she shall use the result electronically transmitted or transferred directly from that lower level to collate and announce the result. (c) if no result has been directly transmitted electronically for a polling unit or any level of collation, the provision of Clause 93 of these Regulations shall be applied.

On its part, Clause 93 provides that “Where the INEC hardcopy 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 duplicate hardcopies issued by the Commission to the following bodies in the order below: (i) The Nigeria Police Force; and (ii) Agents of Political Parties”

• Summary of Clauses 48 and 93 on E-Collation

For the purpose of the discussions that follows, the provisions of Clauses 48 and 93 are summarized as follows: The e-transmitted version is mandatory for collation at any stage; the veracity and correctness of the manual version (original copies of the result, that is, Form EC8A) must be measured by comparing the same with the e-transmitted version, and in the event of discrepancy, the e-transmitted version must prevail. Where the manual version is not available, the Collation Officer should use only the e-transmitted version for collation. But where both (1) the manual version and (2) the e-transmitted version are not available, the Collation Officer shall call for and use the duplicate copies given to the Police and to the Party Agents (at the polling unit), for collation. Although there is no express provision in Clause 93 for use of original hard copies of the manual version for collation in the absence of the e-transmitted version (since Clause 93 only prescribes that where both are unavailable, the duplicate copies with the Police and the Party Agent may be resorted to for collation) the implication of the last statement (it is submitted) is that where the e-transmitted version is unavailable, but the original hard-copy result sheets are available, the Collation or Retuning officer could resort to using the original hard copies for collation towards declaration and return. It is when the e-version and the original hard copies are unavailable, that resort to the duplicate copies is recommended, by the Regulations and Guidelines.

• Place of Clauses 48(c) and 93 of the Regulations and Guidelines In the face of Provisions of the Act On Mandatory Electronic Transmission

• Doctrine of Covering the Field

Although section 60(5) confers on the INEC power to determine or prescribe the manner of collation of election results, which INEC has done in the Regulations and Guidelines for Conduct of Elections 2022, it appears that the law makers did not want to leave anything to chance,^V considering that the main purpose of the annulment of the Electoral Act 2010 and the introduction of the innovative Electoral Act 2022, was to introduce and integrate real-time e-transmission of election results as an indispensable part of the election result collation process, with the primary aim of preventing or reducing allegations or incidents of result manipulation that had hitherto marred the manual collation process, which was the sole method of collation under the old legal regime. Sir Thomas Jefferson’s^VI counsel on the dangers of trusting man with absolute power, appears to be instructive here: “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution ^VII…on every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed”. Continuing, Jefferson observed that “The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first”.^VIII It is therefore not surprising that the law makers had proceeded to make special/specific provisions (as is seen in sections 47(3), 64(4)-(8), etc, of the Act) to leave no one in doubt that INEC has no choice than to ensure mandatory real-time e-transmission of election results. A summary of the election result collation procedure in section 64(4)-(8)^IX is that (I) collation of results by the Collation or Returning Officer must be done using the e-transmitted results and the manually-collated results, and the correctness or otherwise of the manual version must be determined by comparing it with the e-transmitted version;^X (II) during collation, any disputes over results must be resolved using both the e-transmitted version and the manual version.^XI (II) in cases of conflicts between the manual version and the e-transmitted version, the latter must prevail;^XII (IV) in cases of conflicts or disputed results during collation, the Collation Officer may only announce the results after the satisfactory resolution of the conflicts/disputes using the information in section 64 (6) which must include the e-transmitted results;^XIII (V) It could thus be seen, that even without the provisions of Clause 38 of the Regulations and Guidelines,^XIV section 64 of the Act has made existence of the e-transmitted version of the results an indispensable part of the collation process and the collation-dispute resolution process; this takes precedence over anything to the contrary in Clauses 48(c) or 93 of the Regulations and Guidelines, to the extent of such inconsistency. PLAC explains further on the necessity of the E-transmitted results:

Electronic transmission of polling unit results to INEC’s collation system is supposed to ensure that INEC has copies of election results from the lowest level of elections (that is polling units), so that in the event of inconsistencies in results or where they are tampered with in the process of physical collation, INEC can have recourse to electronically transmitted results in its collation system. The IReV portal allows the general public to view election results from various polling units as they are uploaded.^XV

• Purposive and Mischief Rules to the Rescue

The purposive interpretation is a derivation of mischief rule as set out in Heydon’s Case.^XVI Purposivism is an approach to statutory and constitutional interpretation under which courts interpret an enactment (a statute, part of a statute, or a clause, term or word in a statute) within the context of the overall purpose of the said statute. According to this rule,^XVII while interpreting statutes, first the problem or mischief that the statute was designed to remedy should be identified and then a construction that would suppress the problem and advance the remedy should be adopted. Heydon’s Case illustrates the Mischief Rule of statutory Interpretation whose main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would “suppress the mischief, and advance the remedy”. Put differently, in applying the mischief rule, the court is always “to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act.”^XVIII The mischief rule of interpretation appears applicable, considering the following: (a) the main mischief/lacuna in the previous law (the Electoral Act 2010) is absence of provisions on electronic transmission of results; this had created room for manipulation of manually-collated results by corrupt politicians and compromised INEC officials; (b) the remedy the 2022 Act has provided to cure the defect/mischief in the old law, is the introduction of mandatory e-transmission of results in such a manner as to make it difficult, if not impossible, for anyone to have the opportunity of manipulating election results, after ballot (c) what would become of the mischief and the remedy if the 2022 Act permits any opening by allowing any situation in which e-transmitted results may not be a sine-qua-non in the collation process? Perhaps one could see why the Electoral Act did not leave anything to chance about e-transmission; after authorizing the INEC to have the responsibility of prescribing the manner of collation, the Act still (and wisely so) proceeded to provide a detailed collation procedure, which makes e-transmission indispensable. It is thus seen that section 64 of the Act makes e-transmission mandatory in order that no interpretation of the provisions of the Act and or of the Regulations and Guidelines, or of the Manual, should leave any room for INEC to escape the obligation on e-transmission of records/results from the polling units; else, the Commission, being grossly untrustworthy and unreliable, based on its past conducts, may or may be influenced, to adduce reasons ^XIX to evade e-transmission or to justify its intentional refusal or faulire to e-transmit, a situation which might end up dragging us back to the Egypt we are coming from, by encouraging procedures that make it possible for election results to be manipulated or for allegations of manipulation to proliferate. In summary, section 64 (4)-(8) of the Act has prescbribed a mandatory procedure for collation of election results. Clauses 38,48, 92 and 93 of the Regulations and Guidelines have prescribed a procedure for collation. Accordingly, it appears that Clauses 48(c) and 93 which create room for dispensing with e-transmission must be interpreted subject to the provisions of sections 47(3) and 64 of the Act which leave no room under any circumstances, for dispensing with e-transmission.

• The Generalia Specialibus Non Derogant Rule ^XX

This rule of statutory interpretation, which states that general provisions in a statute must yield to special or specific provisions in the same statute,^XXI appears relevant here. When a matter falls under any specific provision, then it must be governed by that provision and not by any general provision in the same statute. General provisions in a law must admit or submit to specific provisions in the same law, on the same subject. The reason offered by the courts in support of this principle of interpretation is that the legislature, having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a any general enactment or provision to derogate from its own act when it makes no special mention of its intention so to do. Thus, the position is that special provisions in a statute will not be affected by general provisions therein, although inconsistent with the special, and although they deal with the same subject matter.^XXII The provisions of the section 60(5) of the Act conferring powers on INEC to prescribe the mode of election result collation is a general provision while section 60(4)-(8) specifically and specially prescribes the procedure for collation and for resolution of disputed results during collation, to include as a matter of necessity e-transmitted version of election results. The provisions of section 60(5) (and all Regulations and Guidelines made thereunder, including Clauses 48(c) & 93) must be applied subject to those of section 64(4)-(8). It is submitted that Clause 93 of the Regulations and Guidelines cannot be relied upon to escape the obligation imposed upon INEC under section 64 of the Act, to ensure e-collation in addition to the manual collation.

• INEC’s Own Understanding/Interpretation of the Extant Law On E-Transmission

The INEC appears to agree that taking all provisions of the extant law on the subject into consideration, electronic transmission of results is a mandatory part of the election, election result collation and collation-dispute processes. The Commission has thus taken time to explain in detail, the process of result collation under the new legal regime. The Commission writes on its website:^XXIII

One of the most progressive provisions of the Electoral Act 2022 is the provision for result management from the Polling Units (PUs) to various levels of collation and declaration of winners. The process, as provided by the Act, is basically still manual involving the recording of results on forms (as determined by the Commission) and their delivery to various levels of collation until declaration and return are made. However, the law also provides for electronic transmission of results. In the event of a dispute arising in the course of collation, the electronically-transmitted result shall be used to resolve it. These are clearly provided for in Sec. 60 of the Act which deals with the counting of votes, their entry into specific forms endorsed by INEC officials and candidates/polling agents and their transfer to collation centres. Furthermore, Sec. 64 (4), (5) and (6) of the Act provides for the recording and transmission of accreditation data and election results directly from the PUs using the Smart Card Reader or any other electronic device determined by the Commission … the law provides for a dual mode. The first mode is the 4-step manual procedure at PUs involving: (1) Counting of ballot papers; (2) Recording of results on specific form (EC8A); (3). Endorsement of EC8A by candidates/polling agents; and (4) physical delivery to collation centres. The second mode entails a 2-step electronic procedure from PUs involving: (1) Recording of accreditation data; and (2) Direct transmission of results…. After an election and the completion of results management procedure at the PU, the Presiding Officer should take the following action (1). Transmit a clear image of EC8A for purposes of collation. This goes to the IReV; and (2). Deliver by hand, the hard copy of EC8A and the BVAS to the Registration Area (RA) Collation Officer. 2.The Collation Officer, with the support of the RATECH, should have access to IReV. The result held temporarily as part of IReV and the number of accredited voters in the BVAs should be compared with what is recorded in the manually-delivered result to effect collation (Sec. 64[4] and [5] of the Electoral Act 2022). The IReV result or the scanned image of the EC8A from the BVAS should also be used in case any issue arises during collation and there is need to resolve any dispute regarding the results (Sec. 64[6]), following the procedure provided in the clause 93(a) of the Commission’s Regulations and Guidelines for Elections, 2022. 3.The same scenario should be implemented from one level of collation to a higher one until the result is declared and a return is made 4. This approach integrates the IReV images into the collation process to satisfy the electronic (direct) transmission of results.

INEC had on February 07, 2023 published on its verified Twitter handle, a statement that “The use of the BVAS for voter verification and authentication is a mandatory provision of section 47(2) of the Electoral Act and every registered voter must undergo the process of accreditation. The Commission will also upload polling unit-level results (Form EC8A) and the accreditation data to the INEC Result Viewing Portal. This is also a mandatory provision of sections 50, 60, and 64 of the Electoral Act 2022. For the 2023 general elections, the Commission will recruit 707,384 Presiding Officers and Assistant Presiding Officers, about 17,685 Supervisory Presiding Officers, 9,620 Collation/Returning Officers as well as 530,538 PU Security Officials, making a total of 1,265,227”.^XXIV Further, on October 26, 2022, during INEC’s quarterly meeting with political parties for the year 2022, in Abuja, the INEC Chairman, Mahmood Yakubu had declared 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. There will be no Incident Form that enables ineligible persons to vote using other people’s Permanent Voters Cards (PVCs) during elections. We are committed to ensuring that the 2023 General Election is transparent and credible, reflecting the will of the Nigerian people”.^XXV And, speaking at a meeting with leaders of foreign election observers on 22 February 2023, a few days before the presidential and national assembly elections in Nigeria, the Chairman of the INEC, Prof. Mahmood Yakubu had explained the mode of voter accreditation and result transmission chosen by INEC pursuant to the Electoral Act 2022, saying “The BVAS confirms that the cards issued by the commission and presented by the voter are genuine and the voter is authenticated using the fingerprint and where it failed, the facial. Where both fail, the voter can’t vote. That is a matter of law. After the process is completed at the polling unit, the image of the polling unit result will be taken by the BVAS and uploaded into what we call the INEC Result Viewing Portal where citizens can see polling unit level results as the processes are completed at polling unit level”.^XXVI

• Position of the Courts on E-transmission of Results

The courts appear to have affirmed that direct real-time e-transmission of election results is mandatory. In a judgement delivered on 17 March 2023, Hon Justice Egwuatu of the Federal High Court  of Nigeria, Abuja Division, granted an order of Mandamus compelling INEC, its servants, agents, privies, and any person acting under their directions to: (a). Comply with and enforce the provision of clause 37 of the Regulations and Guidelines for the Conduct of Elections 2022 for the conduct of the governorship and houses of assembly elections in Akwa Ibom State on the 18th of March, 2023 to wit: mandating the presiding officer of all polling units to paste the publication of result poster EC60 (E) at the polling units conspicuously after completing the EC8A result sheet. (b). Comply with and enforce the provision of clause 38 of the Regulations and Guidelines for the conduct of Elections 2022 for the conduct of governorships and houses of assembly elections in Akwa Ibom State on the 18th of March, 2023, mandating the presiding officer of all polling units to electronically transmit or transfer the results of the polling units direct to the collation system and use the Bimodal Voter Accreditation System (BVAS) to upload a scanned copy of the EC8A to the respondent’s (INEc’s) Result Viewing Portal (IReV) immediately after the completion of all the polling units’ voting and results procedures.^XXVII A mandamus, in law, is basically an order of a court of law, a judicial writ, issued as a command to an inferior court or ordering a person or public body or official to perform a public or statutory duty. For example, an application for a court order to compel INEC to perform a certain statutory duty/obligation is an application for an order of writ of mandamus. In Fawehinmi v. IGP, ^XXVIII  the Supreme Court said that “The prerogative writ of mandamus is issued or ordered by the Courts to secure or enforce the performance of a public duty. It is pre-eminently a discretionary power and the Courts will decline to award it if other legal remedies are available and effective. An Applicant for the grant of the order must show that he has sufficient legal interest to protect and that he has demanded the performance of the public duty from those obliged to do so and was refused”. In Ohakim v. Agbaso,^XXVIX the Supreme Court, ruling on the meaning of mandamus, held that “Mandamus is an order issued by a court of law, usually the High Court, to compel the performance of a public duty in which the person applying for same has sufficient legal interest. An order of mandamus only issues to a person or corporation, requiring him or them to do some particular thing therein specified which appertains to his or their office, and is in the nature of public duty…”. In unreported suit FHC/L/CS/370/2023 filed by Labour Party, its governorship candidate, Gbadebo Rhodes-Vivour, and 37 others, the plaintiffs had sought, among other relief, “A declaration that the defendant and its agents and their privies or any persons acting under their directions are bound to comply with and enforce the provision of clause 38 of the regulations and guidelines for the conduct of elections, 2022 for the conduct of the governorship and House of Assembly elections in Lagos State on  March 11, 2023, to wit: Mandating the presiding officer of all polling units to transmit or transfer the result of the polling units electronically, direct to the collation system and use the Bimodal Voter Accreditation System (BVAS) to upload a scanned copy of the EC8A to INEC Result Viewing Portal (IReV) immediately after the completion of all the polling units’ voting and results procedures”. ChannelsTV was to report on 08 March 2023, as follows, regarding the lawsuit:

The Federal High Court sitting in Lagos has ordered the Independent National Electoral Commission (INEC) to directly and electronically upload the results of the March 11, 2023 governorship and State House of Assembly elections in Lagos State from the polling units to the INEC Result Viewing Portal (IReV). Justice Peter Lifu granted the order while delivering judgment in a suit filed by the Labour Party and 41 others, in which they sought an order of Mandamus to compel INEC to obey the Electoral Act and its guidelines for the conduct of the elections. The court, therefore…granted an order of mandamus directing and compelling the defendant and all its agents and their privies or any persons acting under their directions to comply with and enforce the provision of clause 38 of the REGULATIONS AND GUIDELINES FOR THE CONDUCT OF ELECTIONS, 2022 for the conduct of the Governorship and House of Assembly elections in Lagos State on 11 March 2023 to wit: mandating the presiding officer of all polling units to transmit or transfer the result of the polling units electronically, direct to the collation system and use the Bimodal Voter Accreditation System (BVAS) to upload a scanned copy of the EC8A to INEC Result Viewing Portal (IReV) immediately after the completion of all the polling units voting and results procedures.^XXX

Finally on this, the Nigerian Court of Appeal judgment in Adeleke Nurudeen v Oyetola,^XXXI delivered on 24 March 2023, his Lordship Hon Justice Shuaibu, JCA tried to explain the provisions of the Electoral Act 2022, on e-transmission of results, and the material time for transmission. Hear His Lordship:^XXXII

BVAS is a device used to register voters. It accredits voters before voting on election day and is used for transmitting results to the INEC viewing portal after voting. Thus it helps to scan the barcode or QR on the PVC or voter register before voting. Note that BVAS does not require internet connectivity during voting but it requires internet when transmitting results to the INEC portal. In light of the foregoing, it is correct to say that there is a dual mode of transmission of results under the extant Electoral Act, 2022. After the close of the poll at the level of various units where the presiding officer would enter the scores of various political parties in Form EC8A (Polling Unit Result) in which he signs that particular result and counter-signed by party agents, the result will then be scanned and uploaded to the INEC result viewing portal for public viewing. It’s also at that point the accreditation data that has arisen from that polling unit will also be uploaded, but the physical result, the BVAS result will also be taken to the Registration Area Collation Centre. At the Collation Centre, the Collation Officer will at this point have the benefit of seeing the original result and BVAS report and the accreditation data as transmitted and the result sheet from the polling unit.

• Relevance of Parliamentary/Legislative Supremacy

Parliamentary/Legislative Supremacy as a constitutional law concept, postulates that the legislature possesses absolute sovereignty ^XXXIII to make laws and that for this purpose, the legislature is supreme over all other government institutions, including the executive and the judiciary. It also holds that the legislature reserves the right or discretion to make law, change or repeal any previous legislation as it may deem necessary and that (for purposes of law-making), the legislature is not bound to adopt the format or content in any written law or precedent.^XXXIV The Regulations and Guidelines was made by INEC and executive body pursuant to powers given to it by an Act of parliament. The Electoral Act was made by the Parliament. The application of the concept of legislative supremacy is that where any segment of the Regulations and Guidelines is found to be inconsistent with a provision or the import of a provision of the Act, the latter must prevail. Thus, in presenting Clauses 48(c) and 93 of the Regulations and Guidelines as a guide for reliance on manual collation in the absence of the e-transmitted version of results, one must ensure to call one’s attention to the legal import of the superior provisions of section 64(4)-(8) of the Electoral Act which leave no one in doubt about the necessity of the e-transmitted version in the entire collation process.^XXXV Thus, if one thinks that Clauses 48(c) and 93 of the Regulations and Guidelines envisage a situation in which both the e-transmitted version and the manually-collated version may be absent or non-existent, then it is respectfully submitted that Clause 93 is inconsistent with the provisions of section 64(4)-(8) of the Electoral Act which clearly does not envisage any situation in which the e-transmitted version may be absent or non-existent. The steps and procedures provided for in sections 47 and 64(4)-(8) of the Act presuppose that e-transmission is indispensable; the effectiveness of each of the steps contained therein is hinged on the assumption that the results have already been transmitted or transferred electronically from the polling unit. It is perhaps in a bid to ensure that technology is unfailingly used for the election (for purposes of ensuring transparency an promoting credibility), that the Act in section 47(3) provides that where the card reader or other technological device deployed for the election fails to work and no alternative has been provided, INEC should reschedule the election to ensure technology is used. It would therefore be a negation of the intentions of the Act to give or allow any interpretation of the provisions of Clause 48(c) or 93 of the Regulations and Guidelines, which tends to deviate from this intention of the Act. This is why the provisions of Clauses 48(c) and 93 must give way to the provisions of section 64(4)-(8) of the Act, to the extent of the inconsistency. However, there appears to be one instance which may probably justify/excuse failure of e-transmission, and recourse to the procedure in Clauses 48(c) and 93 of the Regulations and Guidelines, is where the results manually collated are not disputed at any stage of the collation process. Thus, even though e-transmission is mandatory under the Act, yet, where the results are not disputed by any candidates/parties (in which case, all parties and their candidates are in agreement about the version of the results collated manually, and there are no allegations of manipulation), then it would be unreasonable to rely on non-compliance with the provision for mandatory e-transmission to invalidate the results of the elections affected. This is because, it must not be forgotten, that the whole purpose of the provisions for mandatory e-transmission is to prevent election result manipulation and other forms of collation fraud during the ballot and post-ballot processes. This being the case, why should the INEC or a court of law invalidate election results that are not disputed on the grounds only that the same was not e-transmitted?

NOTE:

The above discussion is culled from a paper titled, “Legal Safeguards for Credible Management of Post-Ballot Processes In Nigerian Elections Under the Electoral Act 2022”, By Sylvester Udemezue, Available at SSRN: https://ssrn.com/abstract=4393989 or http://dx.doi.org/10.2139/ssrn.4393989.

END-NOTES:

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*Sylvester Udemezue is a Lawyer and Law Teacher in Nigeria, and can be reached on 08039136749 (phone/WhatsApp) and [email protected] (email).

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1. These provisions are reproduced and discussed in detail later in this work
2. See: (1) Sylvester C. Udemezue, ‘Direct E-Transmission Of Election Results From The Polling Units Is Mandatory, Not Directory, Under Nigeria’s Election Laws; Non-Compliance May Be Considered Fundamental, Fatal.’ (TheNigeriaLawyer 28 February 2023) <https://thenigerialawyer.com/direct-e-transmission-of-election-results-from-the-polling-units-is-mandatory-not-directory-under-nigerias-election-laws-non-compliance-may-be-considered-fundamental-fatal/> accessed 19 March 2023; and (2)  Sylvester C. Udemezue, ‘ Nigeria’s Presidential Election 2023 And Legal Consequences Of An Ugly Subversion Of Beautiful Laws [Part 2]’ ( TheNigeriaLawyer 13 march 2023) < https://thenigerialawyer.com/nigerias-presidential-election-2023-and-legal-consequences-of-an-ugly-subversion-of-beautiful-laws-part-2/> accessed 19 March 2023
3. Kunle Edun, ‘Much Ado About Transmitting Results Via The Bvas’ (Law Parlianment 20 March 2023) < https://triplenet.com.ng/lawparliament/law_body.php?MUCH_ADO_ABOUT_TRANSMITTING_RESULTS_VIA_THE_BVAS&myId=3684&myView=0> accessed 20 March 2023
4. Jim Evans, ‘Mandatory and Directory Rules’ (Canbridge University Press 02 January 2018) < https://www.cambridge.org/core/journals/legal-studies/article/abs/mandatory-and-directory-rules/70E6CBF84A2FA2E883829D371D2AF805> accessed 18 March 2023.
5. Especially considering that power corrupts and aabsolute power corrupts absolutely
6.  a founding father and third President of the United States of America
7. Fred Barbash, ‘ Ted Cruz’s favorite Thomas Jefferson quote and the message it sends’ (Washington Post 30 March 2015) < https://www.washingtonpost.com/news/morning-mix/wp/2015/03/30/ted-cruzs-curious-choice-of-thomas-jeffersons-words/> accessed 20 March 2023
8. ThOmas Jefferson Foundation, ‘Research & Education Thomas Jefferson Encyclopedia ‘ (Monticello 1987) < https://www.monticello.org/research-education/thomas-jefferson-encyclopedia/two-enemies-people-are-criminals-and-governmentspurious-quotation/> accessed 20 March 2023
9. which is superior to the Regulations and Guidelines, the latter being a subsidiary law
10. See section 64(4)&(5) of the Act
11.  See section 64(6)&(7)
12.  See section 64(5),(7)&(8)
13.  see section 64(6)(d) & (8)
14. Which expressly include e-transmission as a mandatory as an mandatory part of collation
15. The Independent National Electoral Commission (INEC) on 3 June 2022 released the Regulations and Guidelines for the Conduct of Elections, 2022. The Regulations and Guidelines were issued pursuant to Section 149 of the Electoral Act, 2022 and the Regulations and Guidelines supersede all previous regulations and/or guidelines on the conduct of elections, issued by the INEC. The new Regulations and Guidelines cover elections and arrangements for their conduct, accreditation and voting procedure at elections, and collation of election results and making returns.They 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.” See: Public and Legal Advocacy Centre, ‘PLAC PUBLICATION: SIMPLIFIED ELECTORAL ACT 2022, AND INEC GUIDELINES’ (Placng.org 22 July 2022) <https://placng.org/i/wp-content/uploads/2023/02/Simplified-Electoral-Act-2022-INEC-Guidelines.pdf> accessed 20 March 2023
16. Heydon’s Case (1584) 76 ER 637 is considered a landmark case: it was the first case to use what would come to be called the mischief rule of statutory interpretation.
17. See: Sylvester Udemezue, ‘ Ikeja Branch Elections, NBA NEC Resolutions And The Concept Of Non-Retroactivity: A Detached Delineation Of Section 6(3) Of The Uniform Bye-Law’ (DNLLegalAndStyle 21 September 2020) accessed 20 March 2023
18. See“Mischief Rule” (Wikipedia June 10, 2020) <https://en.wikipedia.org/wiki/Mischief_rule> accessed 20, 2023”
19.  However flimsy or frivolous
20.  generalia specialibus non derogant
21. See DORE V. VERDOM [1997] 2 SCR 862.
22. See LALONDE V. SUN LIFE [1992] 3 SCR 261; IBORI V OGBORU (2004) 15, NWLR (PT 895) 154; In AKINDOLIRE V. AKINDOLIRE (1977) 1 FCAR, 148
23. Independent National Electoral Commission (INEC), ‘2023 General Election Updates \”ELECTRONIC TRANSMISSION & COLLATION OF RESULTS\”‘ (INEC Nigeria 2022) <https://main.inecnigeria.org/?page_id=11312> accessed 20 March 2023
24. See <https://twitter.com/inecnigeria/status/1622829482540146688?lang=en> accessed 20 March 2023
25. See: “2023: No Going Back On Electronic Transmission Of Results, INEC Reassures” (Channels TV, 26 October 2022) <https://www.channelstv.com/2022/10/26/election-results-will-be-electronically-transmitted-in-real-time-inec-assures/> accessed 20 March 2023.
26. See: “How Election Figures Will Be Transmitted —INEC” [The Punch; 22 February 2023) <https://www.google.com/amp/s/punchng.com/how-election-figures-will-be-transmitted-inec/%3famp> accessed 20 March 2023.
27. See: Shola Soyele, ‘ Court Orders INEC To Electronically Transmit Guber, Assembly Election Results’ (channelstv 17 March 2023) <https://www.channelstv.com/2023/03/17/court-orders-inec-to-electronically-transmit-results/> accessed 18 March 2023. See alsoOYINDAMOLA OLUBAJO , ‘ Court orders INEC to upload results of Lagos governorship election from polling units on March 11’ (Peoples Gazette 03 march 2023) < https://gazettengr.com/court-orders-inec-to-upload-results-of-lagos-governorship-election-from-polling-units-on-march-11/> accessed 20 March 2023
28. [2002] 7 NWLR (Pt. 767) @ pp. 697-698, paras. H-A
29.  [2010] 19 NWLR (Pt. 1226) @ Pp. 227-228, paras. F-A
30.  ‘ Lagos Gov Poll: Court Orders INEC To Upload Results From Polling Units To IReV’ (ChannelsTV 08 March 2023) < https://www.google.com/amp/s/www.channelstv.com/2023/03/08/lagos-gov-poll-court-orders-inec-to-upload-results-from-polling-units-to-irev/amp/> accessed 20 March 2023
31. Unreported Appeal No: CA/AK/EPT/GOV/01/2023, delivered on 24 March 2023.
32. on pages 35-36 of the CTC of the judgement.
33. However, Legislative sovereignty is subject to certain restrictions. First is the doctrine of separation of powers which limits the legislature’s scope often to general law-making (for example, every Bill made by the legislature requires executive assent before it can become law, although there is the legislative power of veto, in Nigeria, for example, under section 58 (5) of the Nigerian Constitution of the Federal Republic of Nigeria, 1999, as amended), and second, judicial review, where laws passed by the legislature may be declared invalid in certain circumstances by the courts.
34. See: Sylvester C. Udemezue,  “Place of Internal and External Aids to Statutory Interpretation in the Light of Legitimateness of Jurisdictive Discretion” (2021) 5 IMSU Journal of International Law and Jurisprudence (IJILJ) 48 (Imo State University). <https://www.semanticscholar.org/paper/Role-of-Internal-and-External-Aids-in-Statutory-A-Udemezue/2a1cb4f1f872da82140420cc0a308d65f5900d57>
35.  Sylvester Udemezue Op Cit (n. ii)

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