New Telegraph

Electoral Act amendment: Hope rises for card reader

WALE ELEGBEDE writes on whether the fresh move by the Senate to further amend the nation’s Electoral Act with a view to making the use of card readers compulsory for elections would not be another wild goose chase

 

On the march again, is perhaps the right phrase to describe the fresh push by the Senate to kick-start another round of process to further amend the 1999 Constitution with a view to making the use of card readers compulsory for elections in the country.

 

Tagged “The Electoral Act (amendment) bill, 2021 (SB. 680), the proposed legislation, which has already passed first reading, was sponsored by the Senate spokesperson, Senator Ajibola Basiru (Osun Central).

 

The lawmakers’ previous efforts to legitimise the bill met with a brick wall following the decision of President Muhammadu Buhari to withhold his assent three consecutive times. His first rejection was in March 2018, when he said the proposed law would usurp the constitutional powers of the Independent National Electoral Commission (INEC) to decide on election matters

 

In September 2018, the President also turned down the bill for the second time, asking the National Assembly to revise some clauses. In December of the same year, when the bill was rejected for the third time, the President said signing it into law could “create uncertainty and confusion” in the 2019 elections.

The renewed move

 

However, in the new move by the lawmakers, the bill seeks to amend the Electoral Act by providing for the compulsory use of card readers for accreditation. The bill also makes provision for separate periods for accreditation and voting, with a further provision that accreditation should commence by 8:00am and close by 1:00pm.

 

By the provisions of the proposed amendments to the Electoral Act, the accreditation process shall comprise of the verification of voters using the card reader and register of voters.

 

Furthermore, the bill provides that where the votes cast at an election in any polling unit exceeds the number of accredited voters on the voters register and card reader in any polling unit, the result of the election in that polling unit shall be declared void. It also provides that another election be conducted where the result at that polling unit may affect the overall result in the Constituency.

 

The latest innovation also provides legal backing to the use of card readers for elections in Nigeria. Prior to the introduction of the card reader machine in the nation’s election by the INEC ahead of the 2015 elections, the modus operandi of elections was generally characterized by snatching of ballot boxes and over-voting — from local government, governorship to presidential polls.

 

The outcomes of the elections were not a true reflection of the huge expenses incurred in the conduct of the elections. For instance, in 2011, Nigeria spent N139 billion on elections; N116.3 billion in 2015 and N189.2 billion in 2019. Yet, the polls were marred by irregularities.

 

Initial cold shoulder

 

Although public outcry greeted the introduction of the card reader machines in the wake of the 2015 general elections, as many Nigerians, particularly politicians, opposed it on the ground that the country has not developed to a level for such technology to be deployed for elections, INEC, then under Prof. Attahiru Jega, was never deterred by the misgivings.

 

To justify its belief on the efficacy of the card reader, the electoral commission did a test-run of the card reader technology in what it termed “mock voters’ accreditation” in 12 out of the 36 states of the federation ahead of the polls to determine its strength and weakness.

 

The test reported over 90 per cent success rate, although there were some hitches in some states.

 

That, perhaps, fired Jega and members of his team up in their determination to deploy the card reader for the general election. INEC’s insistence paid off as the 2015 general elections, which saw the defeat of an incumbent president for the time in Nigeria’s political history, was a sharp departure from what obtained in the past, when elections were characterised by snatching of ballot boxes and stuffing.

 

This was justified by commendations the commission received after the elections from both local and foreign observers. For instance, observer teams from the African Union (AU), European Union (EU) and the Commonwealth gave the election management body pass mark for its impartial handling of the polls. They equally described the elections as peaceful and transparent.

 

The appreciable success over deployment of the card reader for the 2015 polls further heightened calls for Nigeria to embrace electronic voting and the device was also used in the 2019 elections, but not without its limitation especially from the purview of the Electoral Act.

 

The card reader

 

A portable electronic voter authentication device, the INEC’s card reader is configured to only read the Permanent Voter Cards (PVCs) issued by the electoral commission.

 

It was designed specifically for the accreditation process and authentication of eligible voters before voting. The machine was configured to only read the PVCs of a particular polling unit and can only work on election day. The device uses a cryptographic technology with ultra-low power consumption and one core frequency of 1.2 GHz and an Android 4.2.2. The device is positioned by its operator (usually a trained INEC official) to read the embedded chip on the PVC.

 

This procedure displays the information of the voter, followed by fingerprinting. It usually takes about 10 to 20 seconds to validate a voter. On completion of accreditation process, a close V key is used to close the accreditation process and the total number of voters accredited can be previewed using a query key beside the close V key and thereafter, the result may be forwarded to INEC using the Communication key.

 

The ability of the card reader to perform the above described functions as well as keeping a tally of the total numbers of voters accredited at the polling unit and forwarding the information to a central database server over a GSM network makes the card reader, informed its welcome by many as elections in the country have before then usually been bedeviled by allegations of irregularities with the resultant violence and the legal battles that follow as a result of resolving electoral conflicts.

 

Supreme Court intervention

 

Of course, technical hitches and failures were suffered by a great number of the smart card reader machines in the election field and this compelled INEC to issue a corrigendum allowing the use of incidence forms for accreditation of voters. Incidentally, the Electoral Act did not capture the innovation of the smart card reader and the courts have become an indispensable platform to resolve crisis emanating from the usage of the device.

 

The matter got to a head, when the Supreme Court failed to take the reports from card reader machines into consideration in its judgements on the governorship elections in Akwa Ibom, Abia, Ebonyi and Rivers states in 2015 general elections.

 

Heavy criticism had emanated then from various quarters as to why the apex court, which simply gave judgements without giving reasons behind the decisions   reached, did not factor in reports from the card readers.

 

But, later offering explanation to Nigerians as it promised, the Supreme Court said although the use of the Electronic Card Reader Machine for accreditation of voters was provided for in the Approved Guidelines and Regulations for the conduct of the 2015 general elections, the device was however, never ‘intended to supplant, displace or supersede’ the Voters’ Register.

 

The explanation was given by seven-man panel of Justices of the Supreme Court, led by the then Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed. The panel declared: “True, indeed, the card reader machine traces its paternity to the above Guidelines and Regulations.

 

Regrettably, its probative pedestal in the vocabulary of electoral jurisprudence has generated conflicting interpretations from Their Lordships of the different Divisions of the Court of Appeal. “With the intervention of this court, in its recent decision in Shinkafi v Yari (supra), it is hoped that practitioners and all other courts will begin to appreciate the position of the said card reader machine, and the reports generated therefrom, in election litigation.

 

“Prior to the authorisation of its use by the Guidelines and Manual (supra), the Electoral Act, 2010 (as amended), in sections 49 (1) and (2), had ordained an analogue procedure for the accreditation process. As a corollary to the procedure outline above, section 53(2) of the said Act (that is, the Electoral Act) enshrined the consequences for the breach, negation or violation of the sanctity of the actual poll sequel to the consummation of the accreditation procedure in section 49 (supra).”

 

“With the advantage of hindsight, INEC, pursuant to its powers under the said Electoral Act, authorised the deployment of the said card readers. Even with the introduction of the said device, that is the card reader machine, the National Assembly, in its wisdom, did not deem it necessary to bowdlerize the said analogue procedure in section 49 from the Act, so that the card reader procedure would be the sole determinant of a valid accreditation process.

“Contrariwise, from the Corrigendum No 2, made on March 28, 2015, amending paragraph 13(b) of the Approved Guidelines, it stands to reason that the Card Reader was meant to supplement the Voter’ Register and was never designed or intended to supplant, displace or supersede it.”

 

“Indeed, since the Guidelines and Manual, which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the Voters’ Register whose judicial roots are, firmly, embedded or entrenched in the selfsame Electoral Act from which it) the Voters’ Register). Directly, derives its sustenance and currency.

 

“Thus, any attempt to invest it (the Card Reader Machine procedure) with such overreaching preeminence or superiority over the Voters’ Register is like converting an auxiliary procedure into the dominant procedure of proof, that is, proof of accreditation.

 

This is a logical impossibility. Indeed, only recently, this court in Shinkafi vs Yari, confirmed the position that the Card Reader Machine has not supplanted the statement of results in appropriate forms; hence, the appellant still had the obligation to prove petition relating to accreditation of voters and overvoting as enunciated in several decisions of this court.”

 

Stakeholders speak

 

The Secretary-General of the Conference of Nigeria Political Parties (CNPP), Chief Willy Ezugwu said that the proposed amendment of the electoral act to accommodate compulsory use of card reader during the election is a welcome development. H

 

e applauded the Senate initiative to give legal backing to the use of card reader in the Nigerian electoral system. He said the lawmakers should be mindful of the challenges posited by the use of card reader in previous elections in the country.

 

He said: “Our experience in government initiatives like the cashless policy and the previous elections in the country where card readers had been failing to accredit voters should be considered in the process. We are also concerned that government itself would want to manipulate and use to marginalize oppositions.

 

“Once it is made compulsory and the card reader did not function, it means that election would not hold in particular polling unit where the card reader fails to function. We know how elections are in Nigeria.

 

Once the electoral body declares in a particular place that the percentage of those who were excluded due to card reader malfunction from the number of registered voters are insignificant to upturn the election, you will see some people would be systematically disenfranchised. “Another challenge and fear is that, wouldn’t it be subject to government manipulations both at state and federal levels.

Like political opponent in their own domain would deliberately make sure that the card readers do not function to full capacity. So, how do you now account for such kind of situation?” Ezugwu advocated for a speedy amendment of the Electoral Act to enable INEC test-run its efficiency either in Anambra or Ekiti governorship elections before 2023 general elections.

 

He said that may not remove those fears Nigerians are nursing that the card reader may not function very well. He noted that if that happens, it will also impact the credibility of such elections. According to him, rather than making use of card reader compulsory, the Senate should amend the electoral act and the constitution to capture the use of electronic voting that would include the card reader.

 

But if their attention is only on the card reader, he advised the lawmakers to make a provision in the event that the card reader fails to function optimally.

“Instead of making it compulsory and there is no other way you can go about it, there should be a transparent remedy in case the card reader fails to function. We have all been using our ATMs to make payments and we have been seeing how it has been working. Sometimes the money is deducted from your account and it will take you months to get a remedy for it.

 

Sometimes people get frustrated and abandon the money to the bank. So, such issues should be taken into account in the amendment.” On his part, the Executive Director of Centre for Convention on Democratic Integrity (CCDI), Mr. Olufemi Aduwo, said the Senate and INEC should focus more on the voters register as against card reader which is susceptible to electronic glitches.

 

He said: “I think we should look beyond the usual ritual of the Senate and focus on the feasibility of the process. I doubt if this will work. Even the ICT level in this country cannot guarantee anything. “The attention should be on the voters register and not in an electronic device that could suddenly develop faults without any backup.

 

INEC has three functions which include voters’ registration, the conduct of elections and delineation of constituency, which they have not been able to do for the past 20 years.

 

“You will see how they will start foot-dragging on this amendment and before you know it, election has come and they will say there is a need for another amendment. It’s like a barber’s chair, always revolving every senate session.”

 

Also speaking with New Telegraph, human rights lawyer, Inibehe Effiong, said the passage and assent to the card reader is long overdue. His words: “By INEC’s regulation and guidelines, they have made the use of card reader imperative in election.

 

But because those interventions from INEC do not have the approval of the National Assembly, they are not binding and they cannot be the basis of challenging the outcome of an election. “Of course, the Supreme Court has made it very clear in several cases that except there is an act of parliament, the use of card reader cannot be mandatory.

 

So, it is important for the National Assembly to resolve this. I think they should go further by recognising electronic collation and transmission of results. There shouldn’t be anything like manual accreditation in the electoral process. This is a step in the right direction; I only hope they will act on it expeditiously.

 

“The excuses of the President in not assenting to the last amendment were that there were some clerical errors in the language of the bill that was sent to him, but he never sent a clean copy as an executive bill to the National Assembly.

 

He also claimed that the bills were too close to the 2019 elections for his to assent. But since then, after the election has come and gone, President Buhari has not shown any commitment towards electoral reforms. But we hope this time, those excuses will not be made again,” he said.

 

On the importance of using technology in deepening the electoral process, he said: “electronic accreditation, voting and collation of results should be implemented through the National Assembly. I endorse the Electoral Reform Bill and demand its swift passage.”

 

He added: “Although INEC had gone ahead of the National Assembly to introduce the Permanent Voters Card and the Smart Card Reader through their guidelines, the Supreme Court has made it clear that non-reliance on them cannot be the basis for challenging election results since the National Assembly has not incorporated them into the Electoral Act. Nigerians should continue to insist on the passage of the Electoral Reform Bill.”

 

No doubt, the card reader has gained currency as elections game changer in Nigeria, the ongoing amendment, if eventually assented to by President Buhari, will surely give absolute and exclusive legitimacy to it

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