By Lillian Okenwa
As the debate continues on the propriety or otherwise of the Presidential Election result not being uploaded electronically and real-time on the portal of the Independent National Electoral Commission (INEC), the Federal government has announced that the INEC Chair never promised to transmit election results electronically. But was there really any subversion of the law on 25 February 2023?
On 22 November 2022, Chairman of the Independent National Electoral Commission (INEC) Yakubu Mahmoud, announced there is no going back on the decision to upload the results of the 2023 general elections on its portal to enable Nigerians to have a real-time view of the results as they are being collated.
Chair of the electoral umpire added that with Bimodal Voter Accreditation System, the results would be uploaded on the portal as they come. However, as of 7:14 pm, on 25th February 2023 no result had been uploaded on the INEC website except those posted on social media by people who witnessed and recorded from their respective polling units.
Since the conclusion of the 25 February presidential election, arguments on whether or not the election result ought to have been uploaded electronically remain unabating. And as Nigerians await the verdict of the Presidential Election Tribunal, lawyers are unrelenting in debating the issue.
Speaking in London at the close of meetings with the media organisations and policy institutions, the Minister of Information, Alhaji Lai Mohammed, said: “Our laws today say all election management system is done physically and manually. There is this misunderstanding about the INEC Result Viewing Centre (IREV). IREV is not about collation and transmission of election results. It is a platform for transparency to ensure that whatever is entered into Form EC8A is transmitted into IREV so that everyone can see it.”
Senior Advocate of Nigeria (SAN), Wahab Shittu holds a similar opinion.
“[O]pinions pursuing the stance that the only means of transmitting the election result is through the electronic means fail to lend credence to the holistic approach of interpreting the Act; as such opinion is derived from restrictively (erroneously) reading the Clause 38 of the regulation without recourse to clause 48(c) and 93 in the same regulation.
“The knowledge that Clause 38 is interconnected with Clause 48(c) and 93 will aid in the understanding that the provision of Clause 38(i) which states that “electronically transmit or transfer” does suggest other means of transferring the result of the election as the word “or” takes the position of revealing an alternative. An appreciation of the holistic approach of the Act reveals that the regulation acknowledges other means being used save the electronic means, but it only gives priority to the results sent electronically over other results.
“Therefore the idea that providing for other means of transferring result gives freedom to the mischief that the draftsman intended to curb fails in substance as the electronic result is conferred with priority in cases of conflict with other results.”
Conversely, Law Lecturer, Sylvester Udemezue in an article: By law, INEC has no discretion on whether to transmit election results directly from the polling unit; Transmission from the polling unit is mandatory, published by Law & Society of 13 April 2023 held that: “When you read section 64(4)&(8) , you’d completely agree that the word “transfer” as used in section 60(5) means “transmitted directly from the polling units” in a manner determined by INEC pursuant to section 60(5).
“There is a huge difference between WHETHER to transmit/transfer and HOW to transfer/transmit. The law insists that INEC must transfer/transmit the results DIRECT from the polling unit but in MANNER chosen by INEC. Section 60(5) directs that “The presiding officer shall transfer the result including the total number of accredited voters and the results of the ballot in a manner prescribed by the commission”. INEC in the exercise of this discretion on MANNER OF TRANSMISSION/ TRANSFER, chose (1) transmission of photo or Form EC8A (2) after which all election materials, including the hardcopy of the Form EC8A, are then taken by hand to the Collation center. Section 64 (4)-(8) of the Electoral Act 2022 provides and envisages that electronically transmitted results must be in the IReV/ portal BEFORE the Collation Officer starts his work. Read the section. The words are very clear.”
Dr. Boluwaji Onabolu, Convener of Mothers United and Mobilized aka M.U.M also gave her views.
“Buttressing the intuitive point that the delay in transmitting the results and the manual behind the scene, hand-written collation undermined the transparency and the acceptance of the results. Even the results of a school captain election if conducted in the manner the presidential elections were, would not be accepted in a country where standards are adhered to. However, International observers lower the standards for Nigeria, hence an election where 63% of eligible voters said no or declined to vote is being considered as possibly acceptable..
“Conclusion: By the combined reading of the Act and the Regulations/ Guidelines, e-transmission of a snapshot/picture/photo of the duly signed Form EC8A (polling unit level result) to the iReV from the polling units on the election day, is mandatory.
“Even though quoting the article —By law, INEC has no discretion on whether to transmit election results directly from the polling unit; Transmission from the polling unit is mandatory— ‘INEC and some people just refused to obey the law, for fear that obeying the law might lead to unexpected outcome. It’s unfortunate that anyone is trying to justify the brazen atrocious subversion of the law, committed by INEC in broad daylight on 25 February 2023.’”
