Direct e-transmission of election results is mandatory

Before I start, and for the avoidance of doubts, may I respectfully refer to my earlier declaration, which remains my position:
“…President Buhari has obviously worked hard and spoken hard … to make the 2023 elections free, credible, peaceful, hitch-free and successful in producing a winner whose victory reflects the will of the majority of the electorate; whose victory represents the exact outcome of the votes cast, so that after all is said and done, Nigerians can say with considerable amount of certainty that we voted in an atmosphere devoid of manipulation and electoral malpractices and our votes really counted. …I believe, and if all these desires and plans come to pass as planned and as promised, my candidate Buhari would have won, and would indeed have become the actual, true and ultimate winner of the 2023 elections, being the hero of the elections and the man of the match who goes away with the golden booth.

Below are (eleven) of the many reasons my candidate before the during the 2023 election is Mr President Buhari, although (regarding the candidates whose names are on the ballot) whoever among them wins in a free and fair election is my candidate” (See: “Eleven Reasons Why He Is My Own Candidate For The 2023 Elections In Nigeria And Only His Victory Would Make Me The Happiest”; 24 February 2023; TheNigeriaLawyer). Accordingly, as a work done by one who is not a politician and who therefore remains nonaligned in party political matters, the present commentary is strictly a legal opinion devoid of politics or extraneous considerations.

I support whoever emerges the winner or winners through credible elections that comply with law. I say this because I know it’s very easy to be misunderstood during election seasons, especially in Nigeria. However, as I once wrote In a commentary titled, “The Place For “Kick-Backs” & “Bribes” In Our Efforts To Kick Back Corruption & Kick-Start Responsible Governance In Nigeria (A Legal Opinion By Sylvester Udemezue)” (ThenigeriaLawyer; 23 October 2018), _”A major duty legal researchers and rule of law campaigners owe society in the practice of constitutional democracy for promotion and sustenance of responsible and responsive governance is to constantly offer legal opinions on issues of law to guide our leaders and institutions in the discharge of leadership responsibilities”.

It is in view of this that I have decided to undertake a short investigation into whether the statutory provisions and requirements on electronic transmission of election results under the Electoral Act 2022 and the Regulations and Guidelines for Conduct of Elections, 2022 are mandatory or merely 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 and published on 02 January 2018, by Cambridge University Press under the title “Mandatory And Directory Rules” has the following explanation: _”Very broadly, 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”.

Section 60(5) of the Electoral Act 2022 provides that “The presiding officer shall transfer the results including total number of an accredited voters and the results of the ballot in a manner prescribed by the Commission”. The use of “shall” here, it’s respectfully submitted, implies that the presiding officer must transmit the results as prescribed by the INEC Guidelines. 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.

Paragraph 38 of the Regulations and Guidelines, 2023 makes Electronic Transmission of Results and Upload of Results to IReV mandatory. The paragraph requires that when voting and announcement of results have been completed at a polling unit, the Presiding Officer “(1) must Electronically transmit the result of the polling unit to INEC’s collation system; (2) Must use the BVAs to upload a scanned copy of the EC8A result sheet to the INEC Result Viewing Portal (IReV); and (3) [must thereafter] Take the BVAS and the original copies of all forms in a tamper evident envelope to the RA/Ward Collation officer in the company of security agents. Polling Agents may accompany the PO to the RA/Ward Collation Centre”. [See: PLAC Publication: Simplified Electoral Act 2022, and INEC Guidelines. FEBRUARY 22, 2023 <https://placng.org/Legist/plac-publication-simplified-electoral-act-2022-and-inec-guidelines/>]. Thus, the Regulations and Guidelines require that the presiding officer must electronically transmit the results DIRECT from the polling units, after which the results would then be taken manually to the collation centres.

This means that the Regulations and Guidelines prescribe TWO levels of collation:(1). Electronic Transmission (collation) which must be done direct from the polling units; and (2). Manual collation which would then follow after electronic Transmission. Note that the manual collation is the lower level of collation. See section 64(5) of the Electoral Act 2022

Now, what’s the legal effect of failure to comply with these provisions on direct electronic transmission from the polling units, one may ask? Before answering this question, let’s look also at Section 64(5) of the Electoral Act, 2022 which requires that “the collation officer or returning officer shall use the accredited voters recorded and transmitted directly from the polling units under section 47(2) of this Act and the votes or results recorded and transmitted directly from polling units under section 60(4) of this Act, to collate and annouce the results if a collated result at his or a lower level of collation is not correct”.

To be continued tomorrow

Udemezue (Udems). 08109024556 wrote via mrudems@yahoo.com.