By Lillian Okenwa
The battle continues to rage at the Presidential Election Petitions Tribunal. In this illuminating conversation WhatsApp conversation, Prof. R. A. C. E. Achara, Ph.D. (Nig.), 2001-2002 University of Nigeria Postgraduate Prize man for Law, Bill and Melinda Gates Foundation Fellow of the Five College African Scholars Program, University of Massachusetts, Amherst, Millennial Chairman, NBA, Enugu Branch 2000-2002 and Mr. Chukwudi Ani, an Abuja based Legal Practitioner present differing opinions on the Supreme Court’s decision in Oyetola v. INEC & 2ors. The question is, did the apex court hold that results from Polling Units transmitted/uploaded in real-time to IREV on election day should not be reckoned with, in the collation process? Here are excerpts published with their permission.
Chukwudi Ani
How does one apply the doctrine of estoppel or legitimate expectation, in an election petition which is sui generis? Under which Section of the Electoral Act or Paragraph of the INEC Manual and Regulations would one find those principles stated, so that they be used against INEC? Let’s not forget that the Supreme Court has already rendered a decision on the only legally prescribed mode of collation of election results in Oyetola v. INEC & 2ors. And that is manual collation and not electronic transmission to IREV. Interesting times ahead, though.
R. A. C. E Achara
This is a widely circulated if not substantiated report of my Lord Justice Agim, JSC’s, decision in that case. The appeal rejected any claim for electronic transmission of accreditation details, which was the subject matter of the dispute; not the transmission of the polling unit results.
Indeed, as an aside relating to the matter of electronic transmission of results from polling units online and real-time, His Lordship in his usual illuminating style, drew a distinction between 3 categories of results transmission data. He held the first two as operational and that the Regulations and Guidelines of 2022 required these to be electronically transmitted by scanning the result sheets (Ec8a) at each polling station. The second is what His Lordship described in the words of the applicable legislation as the collation system at the wards or registration areas collation level to which these electronically transmitted results from the polling units must go for use in an overriding authentication of the physical result sheets, which serve as primary collation materials at each of the collation levels up the line to the LG, state, and national levels.
His Lordship then distinguishes the 3rd category. He calls this the INEC ‘ database’. And, in the language of the applicable legislation, he identifies this 3rd category as the (Neroer) National Electronic Register of Election Results. This database is a repository or library of all INEC results of elections now or in the future and has nothing to do with collation or the evidence needed in order to prove particular election petitions. People are entitled to seek and acquire CTCs of results from this database but it is not in the scheme of requirements which INEC officials must statutorily consult in the lead-up to the announcement of results at the polling units or at any stage of the collation process for these polling results before final declaration and return of the winning candidate.
It is this comment about the 3rd category, Neroer, which His Lordship referred to as the database that some people who have read page 24 of that Judgment have inadvertently promoted as rejection by his Lordship of the very paragraphs of the Guidelines which His Lordship had indeed quoted with approval as mandating electronic transmission of results.
It is possible that there was some ambiguity regarding the IReV, which His Lordship seemed to categorize as part of the 2nd category of operational electronically transmitted materials but also seemed to suggest too that IReV as a public confirmatory tool is both a collation operational tool and at the same time a device to aid the national electronic register of election results (and when deployed only for that purpose, is thereby not a results collation operational device).
I’m sure I’m missing a detail or two but, that, my learned friend, seems to be the position of the SC as expressed in the leading decision of The Hon. Prof. Justice Agim, JSC, in Oyetola v. INEC and 2 ors. of 9/5/2023.
Ani
Dear Prof. Thank you for your intervention. Forgive me if I misunderstood your position, but what do we make of what the apex court said at the beginning of page 24 of its judgement? Let me just reproduce it.
“The Collation System and INEC Result Viewing Portal are part of the election process and play particular roles in that process.”
The court did go ahead to state the respective roles that the Collation System and IREV play in the election process. It does appear from the judgment that the apex court’s reference to the Collation System connotes the manual collation of results, done with physical result sheets at various levels of collation. I say so because, the court on the same page, referred to the Collation System as being made up of centres where results are collated at various stages of the election.
This appears to be the particular role played by the collation system in the election process, as the court had earlier mentioned. That is to say, the Collation System consists of centres where results are collated at various stages of the election. Again, we must pay attention to the crucial point, that the court mentioned both the Collation System and the IREV in the same breadth but then went ahead to state that they play particular roles in the election process. However, when it came to the collation process, the court carefully divorced the Collation System from the PU results transmitted to IREV. So, the vital question now is, what is the role of IREV in the election process?
In the same page, the court states as follows: “The result transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling units results on the election day.”
Thus, after separating the Collation System from IREV in stating their particular roles in the election process, the court merged them again and then jointly drew a distinction between them on the one hand and the National Electronic Register of Results on the other hand.
What I deduce from the decision of the apex court, as the only common ground between the Collation System and IREV, is that they are both operational on the election day and nothing more, as against the National Electronic Register of Results which is operational after elections.
However, it is significant, that the court did not mention results transmitted to IREV as part of the collation process on the election day. This is my humble point and again, I stand to be corrected.
Achara
I tend to agree with most of your reading of the report and they don’t seem to be much in conflict with my original observations. I did call attention to what appear to be slight ambiguities or even ambivalence in the part of the judgment relating to the status of the IReV as at once operational in the collation process and at the same time as merely a collateral measure of public reassurance in the integrity of the process.
Our few areas of departure principally lie in how each of us has evaluated the language deployed by His Lordship. While from it, you deduce a rejection of the notion that electronic transmission of results is part of the operational safeguards embedded as part of the collation system under the new Electoral Act regime with its subsidiary legislations, for me, I deduce especially from My Lord Agim, JSC’s, repeated quotation of almost whole paragraphs of the Act and the RaG on electronic transmission mandates, that Their Lordships of the Supreme Court recognized the revolutionary nature of the new provisions on electronic scanning and transmission of polling unit results real-time and online towards stemming the distrust in collation that has been the bane of elections in our country and consequently the trigger for the entirely unsustainable waste and corruption that sees perhaps 30% of judicial time and resources applied for the benefit of possibly less than 1% of 0.001% of the litigating public.
And, worse, creating a result in which jet-purchasing fees are routinely handed to the few of us that break into the secret-society-like closed group that handles and routinely distorts the coherence, consistency, and reliability of hitherto settled judicial principles that benefit the general population and lawyers that normally serve them.
We don’t need hundreds of thousands of photostat pages, nor hundreds of pages of pleadings and tens of witnesses if our courts insist, as did rigging-weary politicians who imposed these electronic authentication safeguards, that no result would be enforced unless supported by these online, real-time, electronic protocols of substantial protection of voter choice.
Let the view of voters start to control the outcome and immediately see how politicians will change their attitudes in order to please us, the public.
But, anyway, shaa, this only remaining point of departure is an area in which two lawyers can honestly and reasonably differ.
I thank you, sir, for your kind language and gracious willingness to engage.🙏🏾👍🏾
And, yes, the collation system means the physical centres where the primary physical results are aggregated but with the access of the collation officer to the original results scanned in situ in the presence of the voters and transmitted immediately thereafter with the BVAS to the collation system at the relevant ward.
His Lordship appeared to think that the transmission to the computer server, which is material to the collation, is the one to which the ward collation officer has some sort of special access; and that it is not necessarily the same as the computer server with open access permissions to the general public (known as the IReV).
However, at other times, he seems to conflate the two. But whatever the case, the unique thesis of my Lord Agim JSC in that judgment appears to be the sharp analytic distinction into 3 categories (even if the collation system and IReV draw their data from the same source in category number 2).
Ani
Maybe I was a bit over the top with my language in the original post you had earlier responded to. But, the conclusion I clearly reached, on the basis of my understanding of the judgment of the Supreme Court, is that PU results transmitted/uploaded in real-time to IREV on election day, are not reckoned with, in the collation process. I honestly did not see in any part of the judgment, where the SC gave results uploaded to IREV that status apart from providing a platform for the public to view the election results on election day.
In any event, what is the utilitarian value of the IREV innovation/revolution, when results transmitted/uploaded thereon, cannot be reckoned with in the collation process, particularly in resolving conflicts between collated results and those in the possession of party agents or even outright disputes on the figures entered in the collation result sheets?
This can only fuel frustration and discontent, (as we have clearly seen), where the public clearly sees that there is a numerical difference/gap between the manually collated results and those transmitted to IREV, but they can do nothing about it to rectify or remedy the situation since PU results transmitted to IReV cannot be reckoned with in the collation process.
