By Sylvester Udemezue
MEMORY VERSES:
(A). “It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws”. [Aristotle, Politics 3.16]
(B). “…that the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries, the law ought to be King; and there ought to be no other.”_ @Thomas Paine (in his famous book, COMMON SENSE)
INEC’S QUOTABLE QUOTES ON E-TRANSMISSION OF RESULTS ON ELECTION DAY
(1). In a Press Release titled “ELECTRONIC TRANSMISSION & COLLATION OF RESULTS” which comes under the general heading “2023 General Election Updates” and published by INEC on its own website (see: <https://main.inecnigeria.org/?page_id=11312), the INEC wrote as follows: _
”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…. However, the law also provides for electronic transmission of results. In the event of 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: (a) Recording of accreditation data; and (b) Direct transmission of results… After an election and the completion of results management procedure at the PU, the The Presiding Officer should take the following action (i).Transmit a clear image of EC8A for purposes of collation. This goes to the IReV; and (ii). 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”.)
(2). On February 07, 2023, on its verified Twitter handle, INEC wrote as follows:
“The Chairman of the Commission…expressed satisfaction with the optimal performance of the BVAS in all the States of the Federation. 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” [See https://twitter.com/inecnigeria/status/1622829482540146688?lang=en].
(3). In response to an allegation in early November 2022, made publicly, that INEC was conspiring with some people to jettison the e-transmission of election results in real-time, INEC had immediately come out to publicly debunk the allegation, assuring Nigerians that all results of the 25 February 2023 elections, must be e-transmitted direct from the polling units to the iReV, on the election day. (See: ”2023: INEC Denies Plan To Jettison Electronic Results Transmission”] The statement issued by its spokesman, Festus Okoye, on 11 November 2022, read as follows:
“Our attention has been drawn to reports in a section of the media of alleged plans by the Commission to rig the 2023 General Election by abandoning the direct and real-time electronic upload of polling unit results to the INEC Result Viewing (IReV) portal by the Registration Area Technical Support Staff (RATECHSS). The claim is patently false. The Commission has repeatedly reassured Nigerians that it will transmit results directly from the polling units as we witnessed in Ekiti and Osun State Governorship elections and 103 more constituencies where off-cycle Governorship/FCT Area Council elections and bye-elections were held since August 2020. The results can still be viewed on the portal. The IReV is one of the innovations introduced by the Commission to ensure the integrity and credibility of election results in Nigeria. It is therefore inconceivable that the Commission will turn around and undermine its own innovations.” [See: https://thewillnews.com/2023-inec-denies-plan-to-jettison-electronic-results-transmission/]
(4). On October 26, 2022, during INEC’s quarterly meeting with political parties for the year 2022, in Abuja, the INEC Chairman, Mahmood Yakubu declared:
“…let me once again reassure Nigerians that there is no going back on the deployment of the Bimodal Voter Accreditation System (BVAS) for voter accreditation. There is no going back on the transmission of results to the INEC Result Viewing Portal (IReV) in real-time on Election Day. 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.” [See: _”2023: No Going Back On Electronic Transmission Of Results, INEC Reassures”; Channels TV]
(5). Speaking at a meeting with leaders of foreign election observers on 22 February 2023, The Chairman of the Independent National Electoral Commission, Prof. Mahmood Yakubu explained the mode of transmission chosen by INEC pursuant to sections 50(1)&(60(5) of the Electoral Act 2022, which mandated e-transmission but permits INEC to determine mode of transmission. The INEC Chairman told them that while RAW ELECTION FIGURES will not be transmitted electronically to avoid, what the presiding officers were required to do was to use the BVAS to snap the election results on the results sheet from each polling unit, and upload them on INEC Result Viewing Portal for Nigerians to see. Hear the INEC Chairman, speaking:
_”The BVAS confirms that the cards issued by the commission and presented by the voter is 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. The difference between what Kenya did in 2015 and what we are doing is that we are not transmitting raw figures for collation. In fact, the law does not allow for electronic collation of results. So, we don’t transmit raw figures because raw figures transmitted online are more susceptible to hacking while images of a document are not susceptible to hacking. Like every new technology, initially, it will present its own challenges. In the last elections in Osun and Ekiti, the BVAS performed well. But this is the first time that we are deploying the machine for national election, we conducted a mock accreditation exercise and the exercise had some issues we have addressed.So, we are confident that on Saturday, the machines will work and perform optimally.”
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].
(6). This article on INEC’s main website, and published before the 2023 Elections, makes an interesting reading on position of the Electoral Act 2022 on mandatory e-transmission of election results direct from the polling units on election day:
Is Electronic Transmission of Election Results a Game Changer?
(https://main.inecnigeria.org/wp-content/uploads/2023/02/ERAD-Report-on-electronic-transmission-of-results-in-the-2022-Ekiti-and-Osun-governorship-election_2-1.pdf)
The introduction and conclusion read.
Introduction:
_”In 2020, the Independent National Electoral Commission (INEC) established a result viewing portal (IReV) to provide the public access to Polling Unit election results as soon as they are finished. This relative real-time publishing of election results was part of the Commission’s commitment to transparency in result management, which for many years has been of primary concern to election stakeholders. IReV involves scanning or photographing Polling Unit result sheets (Form EC 8A) once they are completed and verified, and subsequently uploading the pictures to a dedicated backend server. At the frontend, the portal allows members of the public to create personal accounts and log-in details with which they can gain access to all uploaded results stored as PDF files. The introduction of IReV has increased public confidence in results management.
At the same time, it offers wide-ranging opportunities for public information based on data directly sourced from the portal Introduction and backed by in-depth analysis. The real-time publishing of polling unitlevel results and transmission of results using the IReV demonstrates INEC’s
commitment to transparency in results management. The Electoral Act 2022 confers legality on electronic accreditation of voters and electronic transmission of results. The Act also mandates INEC to maintain and update, on a continuous basis, a register of election results to be known as the National Electronic Register of Election Results. The electronic register is a distinct database or repository of polling unit results, including collated election results for each election conducted by the Commission across the Federation. The legitimacy of electoral outcomes has greatly improved due to the new provisions in the Electoral Act 2022….”
CONCLUSION:
“The introduction of the IReV into the framework for election results management has transformed public perception of the accuracy and credibility of election results. It has boosted the transparency of elections by ensuring voters have access to polling unit results at the close of polls. It is an undisputed fact that granting public access to polling unit level results in near real-time is gradually sanitizing the results collation process. Uploading results on the portal deter collation officers and politicians from altering or mutilating election results at different collation levels. This oversight mechanism introduced by INEC and legalized by the Electoral Act 2022 is one of the most significant innovations and reform to Nigeria’s electoral process. Therefore, improving the efficiency of the IReV to sustain public confidence in the results management process is critical for the successful conduct of the 2023 elections….”
NOTE:
All these were before the 25 February 2023 Presidential Election in Nigeria. There are many other instances of INEC’s public declaration to electronically transmit results DIRECT FROM THE POLLING UNITS on election day, so that (1). The public could view the results and (2). So that collation and returning officers could use the electronically transmitted results to (a) verify manually-collated results as well as (b) resolve any disputed results during the collation process.
What is Electronic Transmission of Election Results? And What MANNER or type of mode of transmission did INEC promise, before the 2023 Elections?
MODES/TYPES OF ELECTRONIC TRANSMISSION OF RESULTS ON ELECTION DAY:
◾(A). There is e-transmission of RAW results. This is the manner/mode of transmission adopted by Kenya.
◾(B) There is the realtime, on-the-go transmission of votes/voting (otherwise called “electronic voting”). This is the manner/mode of electronic transmission which has been adopted by the Nigerian Bar Association (NBA).
◾(C). There is a third mode: ELECTRONICALLY TRANSMITTING DIRECT FROM THE POLLING UNITS TO THE INTERNET, A SCANNED COPY OF THE POLLING UNIT RESULT SHEET (DULY SIGNED BY THE POLLING UNIT OFFICER, PARTY AGENTS AND THE POLICE): This method goes this way: upon completion of voting at the polling unit, and recoding of the results in the Result Sheet provided by the Electoral Commission, and signing/endorsement of the Result Sheet by relevant persons (the Polling Unit Officer, Party agents and the Police), an electronic device (BVAS, card reader or whatever called) would be used to scan/snap the original result sheet, and then from the polling unit (I mean, before leaving the polling unit) and to transfer/upload/transmit/send the scan copy/picture/photo (of the Result sheet, as duly signed) to the INEC server, portal or IReV. This is the mode/manner of electronic transmission chosen by INEC for Nigeria. And this is the type of electronic transmission of results INEC publicly promised before the 2023 Elections in Nigeria, as shown above. The Polling Unit Result is called Form EC8A.
CONCLUSION:
I just hope there is no lawyer joining in making any argument, that “INEC did not , prior to the 2023 Elections, publicly promise to electronically transmit results DIRECT from the polling units to the internet, on election day.” By the way, as I have asked, does INEC have a choice or discretion to decide whether or not to e-transmit election results direct from the polling units on election day? Answer is no. In my opinion, electronic Transmission of polling unit results on election day is made mandatory by the Electoral Act 2022. INEC had even expressly admitted and acknowledged this in the several public statements issued by it and its chairman before the elections. There are also videos of INEC Chairman and the INEC spokesperson and commissioners openly admitting that there was no going back on electronic transmission of results from the polling units on election day as required by the Electoral Act, 2022. Besides, section 47, 50(2), 60(5), and 64(4)-(8) of the Act makes electronic transmission mandatory, but leaves INEC to choose the mode or manner of transmission. As I have recalled above, INEC had in its Regulations and Guidelines for Conduct of Elections 2022, chosen the 3rd mode (e-transmission of scanned copy of the polling unit results Sheet: Form EC8A) as opposed to e-transmission of RAW results or e-voting; thus INEC is bound by it.
At this point, please permit me to quote extensively/elaborately from a commentary titled “THE LAWYER`S PLACE IN MISMANAGEMENT OF MEDIA MISINFORMATION IN DEMOCRATIC NIGERIA” (By Sylvester C. Udemezue and published on November 5, 2016 @ legalresearchersnigeria):
“Canons of Legal Ethics, approved by the Canadian Bar Association, states in its preamble that “the lawyer is more than a mere citizen. He is a minister of justice, … and a member of an ancient, honourable and learned profession.” Lawyers, by the very special nature of their calling, have a responsibility to educate the public on the core demands of “due process,” and “rule of law.” Rule 1 of the Nigeria’s Rules of Professional Conduct for Legal Practitioners (RPC), 2007 imposes on every Legal Practitioner in Nigeria a perpetual duty “to uphold and observe the rule of law,” and to “promote and foster the cause of justice.” Also, in Rule 15, RPC, a lawyer is barred from asserting any position when he knows or ought reasonably to know is a false statement “OF LAW OR FACT.”
Honestly, I think much of the challenges some Legal Practitioners in Nigeria encounter in this respect have more to do with their difficulty in being able to draw a clear line being between their duties as lawyers in society and their responsibilities to their clients or to political, social, religious or ethnic organisations or other interest groups to which they belong or whose interests they represent. Some Legal Practitioners easily overlook the fact that, irrespective of their political leanings or cultural, ethnic, religious or social predilections, they have a primary responsibility as lawyers to uphold the truth, promote the rule of law, and desist from rumor-mongering or propagation of propaganda. This duty is overriding and far supplants the lawyer`s duty to his clients as well as his desire to protect or advance the any provincial interests he represents. It could therefore be concluded that promoting the truth, justice, due process and rule of law, is the most obvious and fundamental role for lawyers in a democracy, though this duty is not necessarily such a simple one. OKECHUKWU OKO has given an eye-opening account of how crucial, yet difficult, this role is in a fragile democracy such as Nigeria. In the introduction to his essay, “Lawyers in Fragile Democracies and the Challenges of Democratic Consolidation: The Nigerian Experience,” he succinctly describes it in the following words:
“Because of their status, special skills, and training, lawyers have the opportunity and indeed the obligation to help attain the nation’s political imperative of consolidating democracy. Unlike their colleagues in stable democracies, however, African lawyers face a phalanx of harsh realities and pragmatic constraints that severely limit their ability to deepen democracy, or even perform their traditional functions. Africa’s distinctive problems include political instability, social disequilibrium, insecurity, corruption, ineffective and inefficient public institutions, and a lack of a democratic culture. (see Okechukwu OKO, in 77 FORDHAM L. REV. 1295, 1295-96 (2009)).
Worthy of mention, at this juncture, is Mahatma Gandhis shining example of what the role of lawyer should be in society. On page 4 of the book, THE LAW & THE LAWYERS (by M.K Gandhi), it is reported thus about Mahatma Gandhis love of truth and justice:
“If there was one characteristic more than another that stamped Gandhi as a man amongst men, it was his extraordinary love of truth. The Mahatma was an ardent and inveterate votary of truth. Truth, like nonviolence, was the first article of his faith and the last article of his creed. It was therefore no wonder that in his practice of the law, he maintained the highest traditions of the profession and did not swerve by a hair’s breadth from the path of rectitude and integrity. He was always valiant for truth, bold in asserting it in scorn of all consequence, and never sold the truth to serve the interests of his clients. He never forgot “that if he was the advocate of an individual, and retained and remunerated, often inadequately, for his valuable services, yet he had a prior and perpetual retainer on behalf of truth and justice.” It may truly be said of him that he practiced law without compromising truth.”.
As affirmed by Mr. Justice Crampton in R. v. O’Connell et al. (1844), 7 I.L.R. 261 at 313, he (the lawyer) “will ever bear in mind that if he be the Advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other license which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer.” Likewise, in an article titled, “Role of Lawyer in the Society: A Critical Analysis,” and published in The Clarion: A Multidisciplinary International Journal, Volume I, Number I, February (2012) pp. 148-52, the author, Balin Hazarika, has this to add about the proper role of lawyers in a democratic society:
“It is possible to have different views of what a lawyer does. Some may say that a lawyer is a business person, not unlike the barber, the doctor or the shop owner, providing a service to paying customers. Others will see a more public-abiding role for the lawyer, providing a service to paying clients but also maintaining an eye on the public interest, justice, and fairness of society. This difference in view will account for differing opinions about what a lawyer should do in a morally difficult position. In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so. A lawyer’s function therefore lays on him a variety of legal and moral obligations toward:…the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the power of the state and other interests in society.”
May God help Nigeria, guide Nigerian lawyers. Amen.
Respectfully submitted,
Sylvester Udemezue (Udems)
08109024556.
[email protected].
