AKEEM NAFIU writes that lawyers have condemned INEC’s failure to upload the results of the recently held presidential election on its portal in real time, saying the action is in breach of Sections 60 and 64 (4) of the Electoral Act 2022
“The electoral body has violated the law by choosing not to comply with the provisions of the Electoral Act. This is a tragedy for our democracy. “I am worried and seriously concerned as to how events are unfolding currently, for an electoral umpire to be on the wrong side of the law and to resort to computing and transmitting with the analogue system which is outdated and not in accordance with the law”, one of them said. Another one said: “There is no doubt that INEC is under a statutory obligation to transmit election results electronically. The starting point of the argument is paragraph 38 of INEC manual made pursuant to Section 149 of the Electoral Act 2022 and the 1999 constitution as amended.
“That paragraph which deals with the transmission of results at the polling units is crucial and it imposes a statutory obligation on the part of INEC to upload polling units results on its portal”. The above quotes were part of submissions by some senior lawyers while expressing their concerns on the failure of the Independent National Electoral Commission (INEC) to adhere to the laws and procedures guiding electoral process in the conduct of the Presidential and National Assembly election held on February 25, 2023.
Prior to the conduct of the election, the electoral umpire has told Nigerians in clear terms that electronic transmission of results has come to stay in the nation’s electoral process. Spokesman to the Commission, Festus Okoye, had in a statement dated August 21, 2022, said INEC is not contemplating a revert to the manual process of result transmission. The statement titled “clarification on electronic transmission of election result”, reads: “For clarity, the procedure for result transmission remains the same as in recent governorship elections in Ekiti and Osun States. There will be no change in all future elections, including the 2023 general election.
“The electronic transmission of result has come to stay. This method further boosts the credibility and transparency of the electoral process when citizens follow polling unit level results on the INEC Result Viewing (IReV) portal in real-time on election day”.
Election day hiccups
Sadly, contrary to the promise made by INEC, no result from the presidential election conducted across the country was uploaded on the electoral body’s server in real time on the election day, even though results from the National Assembly election were uploaded in real time. However, in its response to the issue, INEC said technical hitches with its system were responsible for the delay in uploading the results from the presidential election to its server. In a statement, INEC’s National Commissioner and Chairman of Information and Voter Education Committee, Festus Okoye, admitted that unlike off-season elections where the portal was used, it has been relatively slow and unsteady during the presidential and national assembly elections. He disclosed that the problem is totally due to technical hitches related to scaling up the IReV from a platform for managing off-season state elections, to one for managing nationwide general elections. “It is indeed not unusual for glitches to occur and be corrected in such situations. Consequently, the Commission wishes to assure Nigerians that the challenges are not due to any intrusion or sabotage of our systems and that the IReV remains well-secured. “Our technical team is working assiduously to solve all the outstanding problems, and users of the IReV would have noticed improvements since last night. We also wish to assure Nigerians that results from the polling units, copies of which were issued to political parties, are safe on both the BVAS and the IReV portal. “While we fully appreciate the concerns of the public on this situation and welcome various suggestions that we have received from concerned Nigerians, it is important to avoid statements and actions that can heat up the polity at this time or promote disaffection towards the Commission. “We take full responsibility for the problems and regret the distress that they have caused the candidates, political parties and the electorate”.
Opposition parties fume
Dissatisfied with INEC’s response to its failure to upload election results on its portal in real time, agents of four opposition parties staged a walk out during the collation of presidential election results at the National Collation Centre in Abuja. The parties; PDP, LP, ADC and APP took the decision following the rejection of their point of orders by INEC chairman, Mahmood Yakubu. The parties’ agents have called for a review of the results being collated, but the INEC chairman insisted that a review can only be done after the completion of the entire process. In a chat with newsmen outside the Collation Centre, the PDP agent, Senator Dino Melaye, accused INEC of trying to rig the polls. He said: “All of us who have staged a walk out, all the political parties that staged a walk out, our resolution is that the entire process be cancelled. That is our demand. “Our demand is that, the system is compromised, INEC is compromised, so the entire process be stalled and cancelled. “We party agents having observed that the National Chairman of INEC is determined to rig the election, by making sure that results are not uploaded, by vehemently making a presentation that makes it look as if we are all here to rubber-stamp the fraud that has been cooked between INEC and APC, we are saying that we are not here to rubber-stamp the electoral stamp that have been prepared by INEC and APC”. However, while condemning the action of Melaye and others, the All Progressives Congress (APC) accused them of shopping for a court order to halt the collation of the results and throw Nigeria into chaos.
Obasanjo’s call for poll cancellation
Also piqued by the turn of events, a former Nigeria’s President, Olusegun Obasanjo, called for cancellation of election results in areas where the Bimodal Voter Accreditation System (BVAS) malfunctioned. Obasanjo, in a letter to President Muhammadu Buhari, urged him to direct cancellation of results from all elections that failed integrity test so as to avert the ‘looming danger’. Obasanjo’s letter titled: “2023 Nigeria Presidential Election: An Appeal For Caution and Rectification”, reads: “Until last Saturday night, February 25, 2023, the good and noble plan and preparation for the elections seemed to be going well. For the Independent National Electoral Commission (INEC), a lot of money was spent to introduce Bimodal Voter Accreditation System (BVAS), and the Server for immediate transmission of results from polling units. “ It is no secret that INEC officials, at the operational level, have been allegedly compromised to make what should have worked not work and to revert to the manual transmission of results which is manipulated and the results doctored. “The Chairman of INEC may claim ignorance but he cannot fold his hands and do nothing when he knows that the election process has been corrupted and most of the results that are brought outside BVAS and server are not a true reflection of the will of Nigerians who have made their individual choice. “At this stage, we do not need wittingly or unwittingly to set this country on fire with the greed, irresponsibility and unpatriotic act of those who allegedly gave money to INEC officials for perversion and those who collected the blood money. “Let me appeal to the Chairman of INEC, if his hands are clean, to save Nigeria from the looming danger and disaster which is just waiting to happen. If the Chairman can postpone elections four days to the election, he can do everything to rectify the errors of the last two days – no BVAS, no result to be acceptable; and no uploading through server, no result to be acceptable”.
Atiku, Obi’s rejection of poll results
In the meantime, the presidential candidates of the Peoples Democratic Party (PDP) and Labour Party (LP), Atiku Abubakar and Peter Obi, have rejected the outcome of the presidential election, saying the poll was ‘grossly flawed in all aspects’. The duo at separate press briefings condemned INEC’s conduct of the presidential election In his submissions, Atiku faulted the conduct of the elections, saying INEC, shattered the hope of Nigerians with the conduct of the election. He said the election was neither free nor fair, adding that preliminary assessment has placed it as the worst conducted election since the country’s return to democracy. On his part, Obi said the presidential election was conducted in clear deviation from the electoral rules and guidelines. “This will probably go down as one of the most controversial elections ever conducted in Nigeria. The good and hardworking people of Nigeria have again been robbed by the institutions and leaders whom we trusted”, Obi said. Atiku and Obi have since gone to court to challenge the results declared by INEC.
Speaking on the issue, a Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, noted that the development would no doubt speak negatively on the credibility of the election, saying it is very unfortunate that INEC failed to play by the rules. “This was an election in which we all had so much confidence. We thought Professor Mahmood Yakubu was going to perform the final miracle that would make Nigeria better.
“But unfortunately, the stories INEC is telling are very embarrassing. Let us hope that people don’t mess up this country this time around”. Another silk, Godwin Omoaka, argued that the electoral body has violated the law by choosing not to comply with the provisions of the Electoral Act. “This is a tragedy for our democracy and for an electoral umpire to be on the wrong side of the law and to resort to computing and transmitting with the analogue system which is outdated and not in accordance with the law. I am worried and seriously concerned as to how events are unfolding currently. “INEC should do the right thing to save Nigeria and to save our democracy. For me, I think INEC is wrong, the chairman of INEC has failed Nigerians, and Nigerians are asking him to do the needful and rectify the situation to save our democracy.
“The credibility of the election is being called into question. You can see parties boycott the Collation Centre, they don’t want to participate in it. You can see foreign observer missions, civil societies are already complaining about the conduct of the election. So, it calls him to question as to the integrity and credibility of the election and it is only INEC at this point that can do the right thing”, Omoaka said. On his part, Mr. Femi Falana (SAN), said INEC ought to have uploaded the presidential election results, more so that the results of the National Assembly elections were uploaded in their portal and INEC also assured Nigerians that the results would be uploaded to its server.
Falana said: “The important thing, for now is that the results have been announced and the complaints can be taken later at the Election Petition Tribunal. But it cannot call for incitement or making provocative statements. “Members of the political class must be warned that the Nigerian people are not prepared to have the destruction of the political process”. In his submissions, a Senior Advocate of Nigeria (SAN), Jibrin Okutepa, maintained that in line with constitutional provisions, results from polling units must be uploaded on the Results Viewing Portal (REV) of the Independent National Electoral Commission (INEC). This he said is also in accordance with paragraph 38 of the INEC manual made pursuant to Section 149 of the Electoral Act 2022 and the 1999 Constitution as amended. Okutepa said: “There is no doubt that INEC is under a statutory obligation to transmit election results electronically.
The starting point of the argument is paragraph 38 of the INEC manual made pursuant to Section 149 of the Electoral Act 2022 and the 1999 constitution as amended. “That paragraph which deals with the transmission of results at the polling units is crucial and it imposes a statutory obligation on the part of INEC to upload polling units results on its portal. “Before proceeding further, it is important to note that polling units’ results are the pyramid upon which other results are built.
Therefore, it is required that the moment polls come to a close and the results are declared, the results must be uploaded on INEC servers or portal. “Paragraph 38 of INEC Manual 2022 made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended and Section 149 of the Electoral Act 2022 provides 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), as prescribed by the Commission. “Take the BVAS and the original copy of each of the forms in tamper evident envelope to the Registration Area/Ward Collation Officer, in the company of security agents. The polling agents may accompany the presiding officer to the RA/Ward Collation Centre. “The word used in paragraph 38 of the manual made pursuant to the Electoral Act 2022 is ‘shall’. It is mandatory and compulsory.
INEC has no option. So the failure to upload results and follow the procedures set out in paragraph 38 of the manual made pursuant to the Electoral Act 2022, is a fundamental breach that has the potential of rendering the election results that did not follow those procedures null and void”. An Abuja-based lawyer and coordinator of an NGO, Free and Fair Election, Dr. Bright Enado, noted that the Electoral Act provides in Section 47 that a voter in an election must present himself with his voter’s card to a presiding officer for accreditation at the polling unit in the constituency in which his name is registered. “The presiding officer will also use a smart card reader or any other technological device for the accreditation of voters, to verify, confirm or authenticate the particulars of the voters.
“The law also states that “where a smart card reader or any other technological device fails to function in any unit and a fresh card reader or technological device is not brought, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours. “Section 60 of the Electoral Act states that “the presiding officer shall, after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the commission as the case may be. “More so, Section 60 (5) of the Act states that the presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the commission. “The prescribed manner here is the BVAS, which INEC introduced to ensure that the electoral process is credible.
The BVAS was introduced by INEC in line with Section 148 of the Electoral Act, which gives INEC power to make guidelines and regulations to ensure the full effect of the law. “Therefore, the non-compliance by INEC is a breach of the law and by that, the results as presented without transmission should be void. The effect on this on our democratic system is grave, as its consequence might bring about an anarchy”, Enado added. Speaking in the same vein, a political activist, Inibehe Effiong, said: “the electronic transmission of votes provided by the Electoral Act and in the guidelines issued by INEC has not been complied with.
“The INEC chairman has compromised and made it clear that he has no credibility and reputation to organise credible elections by first failing to offer a cogent explanation for the blatant non-compliance with the law with regards to the electronic transmission of votes. “This has repudiated what should have ordinarily been a credible election process. The provisions of the Electoral Act under Section 60, which provides for the mode of transmission, have not been complied with. This makes the entire election process questionable. In fact, this election lacks credibility and should be nullified”.
*Additional report by Tunde Oyesina and Francis Iwuchukwu