Electronic transmission of results: Plausible options before INEC, electorate

It’s Unconstitutional To Subject Operation, Independence Of INEC To Another Agency

In the aftermath of the controversies that followed the 2019 general election and much later the off-cycle gubernatorial elections in Kogi and Bayelsa states, the intensity of the push by the electorate and various stakeholder groups interested in the nation’s electioneering process increased significantly. There seemed to be a consensus that the 2023 election cycle would not roll in without a fundamental review of the main electoral legislation, the Electoral Act 2010 that was last reviewed about 10 years ago by the 6th National Assembly.

Attempts had been made to review the current Act in the period leading to the 2019 election but efforts of the 8th National Assembly, led by Senator Bukola Saraki, didn’t come to fruition. President Muhammadu Buhari had, on the eve of the election, refused assent to the Electoral Act (Amendment) Bill, 2018, citing the belatedness of the legislation.

Rationalising the reforms at a forum, the then-Senate President, Bukola Saraki said, “What we have done with the bill is to raise the level of transparency, credibility, and acceptability of our electoral process. We made sure that if the law is assented to and honestly applied by the Independent National Electoral Commission (INEC) and all those concerned, it would give us an election that will be better than what we had in 2015.”

An aspect of the preferred reforms had since seen the involvement of technology in parts of elections conducted in the country, specifically with the introduction of card readers in the process in 2015. But the Electoral (Amendment) Bill 2018, passed by the National Assembly, sought deeper reforms, key among which is electronic voting and transmission of results – meaning that the entire registration, accreditation, vote counting, collation, and announcement chain would be achieved electronically.

Specifically, the reforms cashed in on the introduction of electronic voting and use of technology in elections; factoring in youth and persons with disabilities in political party structures and elections; regulating election expenses, and increasing penalties for electoral offenders and consequential constitutional amendments. Others include Diaspora voting, increasing the participation of women, enshrining the smart card reader in the legal framework, and creating the commission and tribunal of an electoral offence.

In declining assent to the bill at the time, President Buhari cited a number of reasons. He expressed concern that passing a new electoral bill at a time when the nation had gone far into the electoral process for the 2019 general elections, which commenced under the 2015 Electoral Act, could create some uncertainty about the applicable legislation to govern the process.

But Human rights lawyer, Femi Falana opined that the failure of the Buhari government and indeed, successive governments, to reform the electoral process had created insurmountable legal obstacles for election petitioners. Stressing the need for electoral reforms, Falana had said that the current state of the nation’s electoral laws gives ample room for greater frustration of election petitioners in their quest for justice.

“As things stand, the frustration of petitioners has been compounded by several judicial authorities, with some decisions holding that an election cannot be questioned on grounds of corrupt practices,” he said, adding: “Judicial authorities had upheld many elections despite the fact that the polls were marred by malfeasance.

For instance, a petitioner is required to prove that there is substantial non-compliance and that the non-compliance has substantially affected the results of the election. Several fraudulent elections have been upheld under the doctrine of substantial compliance. In several cases, winners of fraudulent elections that were annulled were allowed to take part in rerun elections ordered by the courts.”

Learning From Reforms In Other Climes
THE quest for electoral reforms, with a special focus on the use of technology and electronic transmission of results, is not peculiar to Nigeria. The same obtains even in climes with remarkably less penetration of internet. South Africa, Kenya, Benin Republic, and Ghana, among others, are some countries that have sought a rejig of their processes in the past. In Kenya for example, following gross irregularities and widespread violence that marred the country’s general elections in 2007, Kenyans decided to sanitise their nation’s political system using the instrumentality of the law. The result was the enactment of a new Constitution in 2010 through a popular and democratic process.

The action gave Kenya what is regarded in many quarters as one of the best constitutions in Africa. And one key takeaway from the new constitution is the aspect that sought to prevent delay in the hearing of election petitions. Section 140 of the Constitution stipulates that presidential election petitions shall be heard and determined within 14 days.

Sequel to this, following a disputed 2013 general elections, the Kenyan Parliament again reviewed the electoral system by enacting the Electoral Act 2016. The review provided for electronic voting and the appointment of the chairman and members of the Independent Election and Boundary Commission (IEBC) through an interview conducted by a selection board as well as the Offences Act 2016 to provide for electoral offenses and penalties.

The effect of the provision of such progressive review was quite impactful on the country, as the Supreme Court of Kenya had little difficulty in upholding the petition of candidate Raila Odinga, who lost to Uhuru Kenyatta in the August 8, 2017, presidential election. Odinga filed his petition on August 18, 2017, and the Supreme Court, in its judgment delivered two weeks later, annulled Kenyatta’s election. That was made possible with the aid of technology.

Rather than spend precious time calling hundreds of witnesses to give oral evidence or adopt written depositions and be cross-examined by opposing lawyers, the electoral body was ordered by the Supreme Court to produce the uploaded results of the election. The registrar of the court was directed to collect the results and other election materials from the IEBC for examination by the parties and the court. And in the historic judgment, the court validated electronic voting. The court found that the massive irregularities in the transmission of election results had compromised the integrity of the election.

In annulling the results, the Supreme Court held that the IEBC “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution.” That judgment was and remains the first time any court annulled the result of a presidential election in Africa. And it has far-reaching implications for democracy and rule of law on the continent.

Shortly after the 2019 elections, the office of the Chief Registrar, Election Petitions Tribunal at the Court of Appeal in Abuja, released a document through which it disclosed that 736 election petitions had been filed by aggrieved politicians to challenge the outcome of the elections at various levels. The document, which showed petitions filed as of April 4, 2019, revealed that the State Houses of Assembly elections had attracted 381 petitions, the House of Representatives elections 101 while the Senatorial elections had 207 petitions.

In addition, 43 petitions had been filed to challenge the outcome of governorship elections while four sought to upturn the victory of President Muhammadu Buhari. The relatively high number of petitions that have followed the elections was, however, not new. It had been an ugly trend since the 2007 elections, conducted by former President Olusegun Obasanjo’s government, which attracted 3,000 petitions.

In the aftermath of the 2015 general elections, an almost equal number of petitions, 730, trailed the polls. The staggered 2016 governorship elections in Edo and Bayelsa states received 32 petitions. Other staggered elections, including Anambra in 2017, received 21 petitions. The 2011 general elections had 733 petitions.

The recurring high number of petitions that have trailed elections over the years not only indicated the disagreement of candidates with election results, but it also brought to fore issues bordering on the integrity of the electoral process regardless of whoever oversees it. These, among other factors, were responsible for the resolve of stakeholders to see through the electoral reforms and their entrenchment in the nation’s voting processes.

Clamour For Electronic Transmission Of Results
WITH the 8th National Assembly unable to see through its amendments to the Electoral Act, the 9th National Assembly naturally inherited the task.

After the judicial drama that played out in the PDP Candidate, Alhaji Atiku Abubakar’s petition against the declaration and return of APC candidate, Muhammadu Buhari at the 2019 election, particularly around the use or otherwise of a server by the Electoral Commission for electronic transmission of results, the strong impetus was given to the clamour of Nigerians led by the civil society and the opposition for amendment of the Electoral Act to make provision for electronic voting and transmission of results. Nigerians yearned for the leverage of technology, to the extent practicable, in the 2023 polls.

On its part, INEC showed remarkable commitment to the yearnings by introducing the Election Review Portal in some bye-elections in Imo, Lagos, Cross River, and Nasarawa between 2019 and 2020. It was a platform that allowed for the uploading of polling unit results in real-time at the conclusion of election in such polling units. That innovation was hailed as a milestone by stakeholders in the Nigerian electoral space and perceived as a strong commitment by INEC’s to digitise its processes. This is more so as the Commission embarked on the project without a legal framework recognising the use of the portal in elections. It was the first indication that the Commission was ready to put the era of manual transmission of results behind it.

It was against this background that pro-democracy advocates reiterated their demand for the electronic voting and transmission of results in the proposed Electoral Act (Amendment) Bill, which is clearly one of the most consequential pieces of legislation in the last decade of our Fourth Republic.

However, the back and forth that greeted the legislation was the first indication that the 9th National Assembly may not be trusted in terms of its commitment to the legislation despite several denials by Senator Kabiru Gaya-led Senate Committee on INEC. After sustained pressure from Nigerians through protests from civil society groups calling on the National Assembly to expeditiously pass the legislation, it would take the bizarre revelation that some provisions of the proposed Bill, as agreed on by stakeholders at the public hearing, had been tampered with, to jolt the National Assembly into action.

Probes by stakeholders revealed that the two major provisions of the Bill said to have been tampered with were those dealing with the power of INEC to review declarations and return before issuing Certificates of Return; and the electronic transmission of results. Apparently whilst stakeholders at the public hearing had reached a consensus on these provisions, the proposed Bill due for the consideration of the Senate as leaked to the public strangely had slightly different provisions. It was the first sign of bad faith.

The Contentions At National Assembly
AFTER the rebuttals, denials, and assurances of good faith that followed from different members of both chambers of the National Assembly, the ‘original version of the Bill was tabled at plenary for a vote. As it later turned out, those who tampered with the Bill ab initio, yet, had more in their sleeves. In both chambers, while other provisions of the proposed legislation had a smooth sail during the clause-by-clause consideration, the contentious section 52(3) of the legislation dealing with the manner of transmission of results, stuck out like the proverbial sore thumb.

Whilst the draft Bill gave INEC the powers to “transmit results electronically where and when practicable,” apparently as a sequel to its powers under Sections 78; and 153 of the 1999 Constitution (as amended), the contention was whether such open-ended powers should be given to the Commission. Those who argue otherwise, particularly lawmakers of the ruling APC, anchor their dissent on the grounds that the infrastructure to enable electronic transmission of results across the country was lacking and would therefore be a risky plunge to take. 

In the end, a proposition granting INEC the powers to do so after due consultation with the Nigerian Communications Commission (NCC) and the approval of the National Assembly, as proposed by the Deputy Whip, Senator Sabi Abdullahi was put to vote and was eventually carried by the Yays. Out of 80 Senators present at plenary, 52 of them (majorly of the APC-fold) voted in support of Sabi’s amendment; whilst 28 registered their dissent at a session that stopped short at snowballing into a fight. For whatever reason, some 28 Senators, however, avoided plenary on probably one of the most important days in the life of the 9th National Assembly.

At the Green Chamber, which has seen so many parliamentary brawls in the past, hell was almost let loose. It would take the ingenuity of the Honorable Speaker of the House to adjourn the vote on the contentious Section 52(3), to the next plenary day after having taken expert views of INEC and the NCC. Undoubtedly, the rationale behind this course of action was to set the tone for a more informed decision by the legislators even though the decision was seen as rather absurd as both institutions participated actively, and made presentations at the public hearing on the Bill.

However, in yet another case of bad faith and suspicion of bias, only a representative of the NCC made it to plenary the following day with the message that internet coverage in Nigeria was only about 50 per cent and that adequate cybersecurity for electronic transmission of results may not be guaranteed. Strangely, however, the visit of the NCC Representative would be rendered academic as the Deputy Speaker of the House stunned the majority of the PDP lawmakers when he declared that the contentious Section 52(3) had been carried the previous day to read, “The Commission may transmit results of elections by electronic means where and when practicable” eliciting their boycott of the remainder of the day’s business.

As it turned out, the green chambers ended up passing an opposite version of what passed in the Senate. Whilst the Senate voted for clothing INEC with the powers to transmit results electronically after due consultation with the NCC and approval of the National Assembly, the House of Representatives voted for giving INEC the leg-room to transmit results electronically, “where and when practicable”.

Lawmakers opposed to the position taken in the Senate have argued that such stipulation was in a conflict with the Constitution, and has the tendency of disrobing INEC of its independence to the extent that it subjects the exercise of its discretion to otherwise third parties, particularly one which will always have a partisan interest.

Knocks For Lawmakers
A SENIOR Advocate of Nigeria (SAN), Lateef Fagbemi, faulted the actions the lawmakers opposed to electronic voting and electronic transmission of election results, noting that it is the way to go in achieving sanity in the country’s electoral system. He called on the federal government, particularly the National Assembly to have a rethink on the issue of electronic transmission of election results, insisting that it will further give integrity to the nation’s electoral system.

While hailing the move as a step in the right direction despite opposition from certain quarters, Fagbemi praised INEC for taking bold steps to ensure sanity in elections in the country, particularly with the introduction of Smart Card Readers, which he noted has “drastically reduced the spate of election violence.”

Commenting on the contentions and implications, Raymond Nkannebe, a lawyer, said the reservations about disrobing INEC of its independence by the Senate version of the Amended Act were valid, particularly in the context of Nigeria’s political experience. Barring any harmonisation by the two chambers, he said that the judiciary might be invited to weigh into the matter.

Nkannebe noted that the ugly lessons in what has played out in the disputations around how to improve the integrity of the electoral process, the single most important feature of any democracy, has again triggered the perennial question of ‘quality leadership’, the lack of which has been the bane of Nigeria. “If there was a piece of legislation that ought to be passed on a non-partisan basis, one would have thought that it was this very one that gives life to our democracy, particularly after our very embarrassing history of electoral heist perpetrated by the political class. But here we are.

“While there is the need to ensure adequate coverage and broadband penetration to enable seamless transmission of result from across the over 170,000 polling units in Nigeria, it beggars belief that such incapacity, assuming it is the case, is being deployed as a weapon of sorts for petty partisan politics rather than being a motivation for investing in a solution, or alternative but efficient ways of achieving the similar objective. Unfortunately, this has been the body language of most of the lawmakers who voted against the unfettered discretion of INEC in the matter of the entire voting process as ordained by the Constitution. This is again, another indication of the conservative and obtuse thinking that permeates politicking in Nigeria,” the lawyer said.

INEC had affirmed its capability to transmit results electronically from every part of the country through its spokesperson, Festus Okoye. That carpeted the remonstrations of lawmakers who is pleased to fix the Commission with such incapacity. This again, raised eyebrows on INEC’s absence at the House of Representatives as the Honorable Speaker had indicated before adjourning the vote on the contentious Section 52(3) to Friday.

Okoye had said: “We have uploaded results from very remote areas, even from areas where you have to use human carriers to access. So, we have made our own position very clear, that we have the capacity and we have the will to deepen the use of technology in the electoral process. But our powers are given by the constitution and the law, and we will continue to remain within the ambit and confines of the power granted to the commission by the constitution and the law.”

For Nkannebe, Okoye’s response sounded a death knell on the concerns of Senator Ali Ndume (Borno South), Orji Uzor Kalu (Abia North), and others who appeared to glamorise the purported lack of network coverage and penetration across their constituencies. “If INEC is donated by the Constitution with the powers to determine the mode of conduct of elections, it should have the final say on the extent of its capacity to leverage technology to improve the integrity of our electoral process.

At the very least, it should not be railroaded into a position to the contrary.

“Looking at the testimony of the NCC that only about 50 per cent of Nigeria’s polling units have the required network coverage for the transmission of results and that it may not be able to guarantee the security of the process, why wasn’t the Commission able to give its expert opinion on what it would take to attain a full coverage either permanently, or temporarily so as to guide the legislators on the feasibility or otherwise of deploying the technology ahead of the 2023 election, which is still over 18 months away? And how does the testimony of the Commission fare, in the face of its 2020 report in a 100-page document, which put the national network coverage of Nigeria at over 80 per cent of the population; as well as INEC’s expression of its capacity to adequately deploy technology to transmit results even in the most remote locations?

“All of these inconsistencies, starting from the allegations of mutilation of the draft-Bill have unfortunately created a credibility crisis for an institution which has battled tooth and nail to redeem its image before Nigerians. Many opposition lawmakers, and indeed Nigerians are convinced that the melodramatic outcome of the vote on the much-anticipated piece of legislation is ominous signs of APC’s plans to rig the 2023 elections.”

Way Out Of Conundrum
NKANNEBE is optimistic that there could still be a way out of the current political cum legal conundrum in the interest of democracy. “If there’s anything that we have learned so far, it is that Nigerians are really keen on electronic voting and transmission of results at the 2023 elections and beyond. The least the 9th National Assembly could do is to give it to them. And it is not too much to ask for this.

Consequently, against the backdrop of INEC’s reiteration of its resolve, capacity, and readiness to deploy technology in the transmission of results country-wide, both chambers of the National Assembly at the reconciliation/harmonization stage of their versions of the Bill must strive to arrive at an amendment that makes such possible without necessarily tying the Commission to the leash of the NCC and the National Assembly or putting it in a position where its independence would come under undue suspicion.

In the unlikely event they fail, President Muhammadu Buhari must exhibit sensibility to the yearnings of Nigerians and send the Bill back to the National Assembly. This is one legislation that holds the key to the future of this Democracy. And we can’t afford to bungle it.”

Former Bayelsa State Governor and member of the Senate, Seriake Dickson, since there is a marked difference between the versions of the Act passed by both chambers, there is likely to be a conference committee on it.

“While casting my vote for electronic transmission of results, I made it very clear that it is unconstitutional for the National Assembly, for any arm, for anybody to subordinate the independence of and operational powers and discretion conferred by the constitution on INEC. You can’t subordinate INEC to any other body. It is not constitutional. If that ends up as the position of both chambers, you can be very sure what the likely decisions of the courts will be. This is why you have the executive and the judiciary. Laws that are passed that are inconsistent with the constitution will be challenged.”