By Mukaila Habeebullah
Lately, the senate rejected a proposed amendment of the Electoral Act to Clause 60, Subsection 3, of the bill that sought electoral transmission to mandatory.
However, Senate President, Godswill Akpabio, said in a swift reaction that the Senate retained transmission of results as provided in the 2022 Act.
The rejected provision would have required presiding officers of the Independent National Electoral Commission, INEC, to electronically transmit results from each polling unit to the IReV portal in real time, after the prescribed Form EC8A had been signed and stamped by the presiding officer and counter-signed by candidates’ agents.
Instead, the Senate adopted the existing provision of the Electoral Act, which states that “the presiding officer shall transfer the results, including the total number of accredited voters and the results of the ballot, in a manner as prescribed by the Commission.”
The Background Fact
In 2022, the National Assembly and President Muhammad Buhari signed a bill into law against the 2023 general election. Some sections were clear in interpretation and not ambiguous, while some were ambiguous. One section was 50 (2) of the law, which provided for “voting and transmission of results in accordance with the procedure subject to be determined by INEC”
Following the passing of the bill into law, the Labour Party went to the Federal High Court in suit No. FHN/ABJ/CS/1454/2022 before Justice Emeka White, and pray the court to compel the INEC to adopt electronic method in the transmission of the 2023 election results pursuant to section 50 (2) Electoral Act 2023 as amended.
The prayer sought in the suit inter alia is “A declaration that the respondent (INEC) has no power to opt for manual method other than the electronic method provided for by the relevant provision of the Electoral Act.
The court held that “The Electoral Act 2022 does not mandate INEC to transmit results electronically. That “the commission is at liberty to prescribe or choose the manner in which election results shall be transmitted; that there’s no where in the section of Electoral Act where INEC or any of its agents is mandated to only use an electronic means in collating and transmitting the results.” That if INEC did it manually, they did not act in violation of the law.
Meanwhile, Immediately after the announcement of the results 2023 election, Atiku Abubakar and Peter Obi instituted a legal action at the competent court of jurisdiction, Court of Appeal Electoral Tribunal challenging the outcome of the election and predated their petition mainly on the fact that INEC did not follow the guidelines and they did not fulfill their promises of real-time transmission of results from polling unit to IRev etcetera. They thereby sought the cancellation of the Current President Bola Ahmad Tinubu’s victory.
The court dismissed the petition on the ground that transmission is not mandatory because there’s express or implied provisions of law in the Electoral Act to do so. That INEC is at liberty to choose.
Dissatisfied: They approached the Supreme Court, and being the apex court, the supreme court upheld the decision of the trial court and dismissed the appeal accordingly on the same ground.
In the same vein, the Supreme Court maintained in the case of Oyetola V. INEC (2023) LPELR-60392 that the Electoral Act has not made electronic transmission.
Clarification and Recommendation
Upon thorough perusal of the provisions of Section 52 (2) in consonance with the interpretation of the same Section by the Trial court and Supreme Court in the above cases, it is crystal clear the idea of Mandatory or compulsion of electoral transmission is totally at the discretion of the INEC which create a loophole in the law by refusing real-time transmission I believe the senate pays less attention to the weakness that was fished out by the courts by maintaining same position in the recent proposed bill.
Meanwhile, during the February 25 presidential election, many polling units failed to upload results promptly. INEC blamed technical glitches while opposing parties alleged manipulation. Despite protests, Bola Tinubu of the All Progressives Congress (APC) was declared the winner. His main opposition — Peter Obi and Atiku Abubakar of the Peoples Democratic Party — went to court. Although they lost, many Nigerians felt the system failed.
Consequently, what begs for action now is the amendment of the Section by the senate to meet the expectations of the general public and prevent a repeat in the upcoming 2027 election, because the majority of the people did not have much confidence in the INEC idea any more, if the election is transmitted electronically it will be more transparent.
The bone of contention now is not whether the transmission is mandatory, and that is negative, not whether electronic transmission is included.