Critical Appraisal Of The PEPC Judgment (3)

By Kenneth Okonkwo

The judgment of the Presidential Election Petition Court on the 6th of September on the issue of non-compliance with the Electoral Act in the conduct of the election by the Independent National Electoral Commission (INEC) is the subject of this week’s column. Non-compliance with the Electoral Act, especially when the non-compliance is substantial enough to affect the outcome of the election, is a ground to nullify the election.

The verdict of the PEPC, surprisingly, was that INEC complied with the provisions of the Electoral Act and that the issue of electronic transmission of election results to the collation system is discretionary and not mandatory to INEC. This decision, with respect, does not reflect the position of the law. Even if electronic transmission of election results is discretionary and INEC has exercised its discretion in favour of electronic transmission of election results, respectfully, it is mandatory for INEC to keep its rules, and it is not the duty of the court to tell INEC how to do its job.

The only duty of court is to hold INEC responsible to its rules and regulations. Let us be clear, Rules and Regulations made by any organisation to guide its activities are part of our laws, called subsidiary legislation, that are enforceable against that organisation and non-compliance of any organisation with its rules are legitimate grounds to void every action of the organisation, provided that the rules and regulations were made pursuant to the Law that gave it the power to make such rules. In other words, the rules must not contradict the provisions of the Constitution or Statute that created it.

The laws on electronic transmission of election results are clear, unambiguous and mandatory, but certainly not discretionary. Indeed the main reason for the enactment of the Electoral Act, 2022 is the introduction of electronic storage and transmission of election results to check the corruption and manipulation of election results during manual collation of results at collation centres. Let us make it clear that the Electoral Act, did not outlaw manual collation of election results at the collation centres, what the law outlawed completely is the “sole” unverified manual collation of results.

The law introduced the electronic transmission of results as a way to confirm the correctness and consistency of the manually collated results and warned that manual collation should not even take place except there is electronically transmitted results that it must be compared with before results are announced and a winner declared. That’s why the law says, No card reader, no election, meaning, no electronic storage and transmission of results, no election. INEC failed to do this but went ahead to announce unverified, manually collated results, which till date, they have not been able to verify and confirm, yet the court said, it didn’t matter. Really?

For the avoidance of doubt, the first step for a voter that intends to vote is to approach the polling unit on the day of election with his permanent voter’s card (pvc). The card will be confirmed to be genuine electronically using the Bimodal Voter Accreditation System (BVAS). The owner of the card will be verified to be the true owner either through fingerprints or facial recognition identification. When confirmed, the voter will be issued ballot papers with which he will vote for candidates of his choice in a secluded cubicle, after which he drops them in a transparent box openly displayed for the whole world to see. Any voter that the BVAS cannot confirm is not allowed to vote. If a functioning BVAS is not available for use, election is postponed. So, no BVAS, no election (See Sections 47 and 50 of the Electoral Act (EA), 2022 and Clauses 18-19 of INEC Regulations and Guidelines for the Conduct of Election, 2022)

After the voting, INEC officials (Presiding Officer (PO) will publicly count and announce the results in the presence of all at the polling unit. (See Section 60(4) of the EA). This will be followed by a recording of the scores of the candidates in an election result sheet, Form EC8A (See Clause 35(a)(v) of INEC Regulations). Subsequently the PO shall paste the duplicate copy of the result sheet, Form EC60E, at a conspicuous place at the polling unit. (See Clause 37 of INEC Regulations). The PO then electronically transmits or transfers the number of accredited voters and the result of the Polling Unit direct to the collation system. (See Section 60(5) of the EA and Clause 38(i) of INEC Regulations). The PO must use the BVAS also to upload a scanned copy of the result sheet, Form EC8A, to the INEC Result Viewing Portal (IREV). (See Clause 38(ii) of INEC Regulations)

It is to ensure that this electronic transmission of results is done, immediately after the recording and announcement of the polling units election results, but before collation, since the essence is to use it to guide the Collation Officers, that the Act compels INEC to compile, maintain and update, on a continuous basis, in a register, to be known as the National Electronic Register of Election Results (NERER), which INEC called the Collation System in Clause 38(i) of INEC Regulations, and which is a distinct database or repository of polling unit by polling unit results, including collated election results of each level of collation centre as they come, of each election conducted by the Commission in the Federation, and the Register of Election Results shall be kept in electronic format by the Commission at its national headquarters from where any person or political party may obtain a certified true copy of any election result. (Section 62(1-3) of the EA). It is to be noted that INEC is mandated, by its own rules, to transmit electronically the collated results of each level to the Collation System to be used as a guide by the next higher level of collation centre. (See Clauses 50(xx); 53(xii); 54(xii) of INEC Regulations)

It’s this electronic Collation System/Electronic Register (By whatever name called) that every collation officer must place by his side to confirm the correctness and consistency of any manual results submitted to him from the Polling Units by the Presiding Officers, before collation. The Act and INEC Regulations warned that an election result shall only be collated if the Collation Officer ascertains that the number of accredited voters and votes scored by the political parties recorded in the BVAS and transmitted from the polling units to the collation system agree with the number recorded on the result sheet (See Section 64(4)(a)(b) of the EA and Clause 48(a) of INEC Regulations; See also the INEC Manual for Elections).

Above principles of law, which are summarily called the election process and the mandatory nature of their application in the election process has received judicial pronouncement. The Supreme Court affirmed this position in the Oyetola v Adeleke, Osun State Governorship election case, where it held that “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day.” (See Page 24 of the lead judgement as delivered by Emmanuel Akomaye, JSC). The Supreme Court cited Clause 38(i)(ii) of INEC’S Regulations and Guidelines for the Conduct of Elections, 2022 which states that “On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission. Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IRev)”, to buttress this point. This Clause was made pursuant to the power given to INEC in Section 60(5) of the Electoral Act, 2022. These laws have practically outlawed sole manual collation of results that have not been verified by comparison with the electronically transmitted results into the Collation System from the polling units.

It’s therefore submitted that any election conducted and concluded, and manual collation of results made, without being compared with the information in the electronically transmitted results into the Collation System from the polling units, to ensure its correctness, is in substantial non-compliance with the Electoral Act and INEC Regulations and a breach of the election process, as there is no way the correctness and integrity of the manually generated election results can be confirmed. Since they are mandatory provisions of the law enacted to secure the integrity and credibility of our elections, their non-compliance should certainly void the electtion. To hold otherwise is to destroy every technological improvement we have made in our elections. One wonders why the PEPC should even listen to the judgement of a High Court and Court of Appeal in the face of a clear judgement of the Supreme Court. Hear the Supreme Court again “So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation”. This decision ensured that the technological advancement enacted in the Electoral Act, 2022 is preserved to better our electoral process and remove the manipulations that take place during the sole manual collation of results. This is the position of the law. This was the position of INEC before the election. This was what INEC did in the Anambra, Edo and Ondo gubernatorial elections that guaranteed their credibility till date. If the judgement of the PEPC is allowed to stand on this issue, Electoral Act, 2022 is dead.