‘Nigeria must be seen to respect and enforce treaty obligations’
The Electoral Act Amendment Bill has generated a lot of interests among Nigerians, especially with the drama that played out on the floor of the two chambers of the National Assembly over the electronic transmission clause. In this interview, the Independent National Electoral Commission (INEC) National Commissioner, Information and Voter Education, Mr. Festus Okoye, tells ONWUKA NZESHI that the electoral umpire prefers a law that gives it broad powers to deploy technology as much as possible in the electoral process
How would you appraise the Electoral Act Amendment Bill recently passed by the National Assembly?
The National Assembly has not passed the final version of the Electoral Act Amendment Bill. Both Houses of the National Assembly must harmonize their positions before it becomes a bill of the National Assembly and forwarded to the President of the Federal Republic of Nigeria for assent.
Some of the proposed amendments are products of the experiences garnered by the commission in the conduct of elections. Some of the proposed amendments derive from judgements, orders, comments and advice by the different strata of our superior courts of record in pre-and post-election matters.
Some of the proposed amendments are based on the contributions by the different stakeholders during the retreats, public hearings, technical committee sessions and other engagements of the Senate Committee on INEC and the House Committee on Electoral Matters.
There are a couple good proposals in the bill but it is not safe to speculate on the final product from both Houses as issues may change and clauses may change from the harmonization meeting. It is rational and proper to wait for the final outcome of the harmonization and assent by the President.
In your own estimation, does this law fulfill the long quest for robust electoral reforms in Nigeria?
Democracy is not a finished product. It is a product of people’s experiences and their projections, hopes and dreams for the future. Law must be dynamic and respond to changing circumstances and situations.
The proposed amendments are a product of the Nigerian reality meant to address some of the shortcomings of the existing legal framework and respond to the dynamics and motions in the society. Some of the proposed amendments will address some of the challenges of our electoral process.
The overall consideration is to midwife an electoral regime that will domicile the electoral process in the hands of the Nigerian people, deepen the use of technology in the electoral process, strengthen the independence of the electoral management body, reduce the influence of money in our elections and make the votes of the people count. As the country progresses, other issues will arise and must be addressed.
Are there aspects of the bill which you feel the lawmakers should have handled better to enhance the job of INEC?
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) gives the National Assembly the power to make laws for the peace, order and good governance of the federation.
The law makers utilise their processes and procedures to consult their constituents, critical stakeholders and other interests in coming to a final decision on a particular bill or legislation. The President may veto bills forwarded to him for assent but the National Assembly may override presidential veto.
The commission would prefer to have broad powers to deploy relevant technology in the electoral process depending on its appreciation of the environment, level of technological development in the country and the dynamics of the international electoral environment.
The commission believes that it will be counter-productive to prescribe a particular brand of technology in the law as technological solutions to various and varying issues can change and it may adversely affect the commission.
The commission appoints Retuning Officers in elections and would prefer broad powers to review declarations and returns made by Returning Officers before giving the courts the final say on the validity of such returns. The commission will also prefer a reduction in the number of byeelections in the country through a process of representative accountability.
The passage of the bill triggered a contrary reaction from your office, when you faulted the clause barring electronic transmission of results. Is it true that INEC currently has the capacity to transmit election results electronically?
The commission is clear and has clearly, unequivocally and unambiguously stated that it has the capacity to electronically transmit results of elections. The commission has been piloting different electronic solutions.
The commission has uploaded polling unit results to INEC Result Viewing Portal and this enabled the Nigerian people engage the electoral process and view results in real time. This has reduced human interference in the outcome of elections.
On January 30, 2018, the commission had meetings and discussions with the Nigerian Communications Commission (NCC), leading to the establishment of INEC/NCC Joint Technical Committee on use of modern telecommunications technology on the conduct of elections.
During the meeting, the commission underscored the four core areas of the collaboration to include real time communication, involving live transmission of election results electronically; ensuring the security and integrity of the system and collated data from the polling units from tampering by intruders and the possibility of proving mobile BTS’s to remote, unserved and underserved areas for election purposes NCC presented the Cellular Network coverage map for Nigeria.
At the meeting of March 28, 2018 held between NCC, the commission and the network operators, the consensus is that the requirements for the electronic transmission of results proposed by the commission is practicable. However, the operators tabled five issues that must be taken on board in broader discussions.
These include high level of confidentiality on the part of all involved; that the committee should not lose sight of the commercial components of the proposed solution; that a deeper understanding of the INEC system, tools, and platforms is needed for the operators to customize a solution for electronic transmission of results; that time is of the essence and there is need for a test run and validation of the proposed system before deployment and a non-disclosure agreement to protect data, equipment and systems.
How do you see the clause that seeks to subject the powers of INEC to the whims and caprices of other agencies such as the NCC?
The commission is a creation of the constitution and the law. The commission derives its powers from sections 118, 153, 158, 160 and the third schedule to the Constitution. The commission does not share these powers with any organ of government.
The commission is permitted to consult other agencies that have expertise in some areas to assist in the execution of its core mandate. The commission can also impose duties on any staff of the said agencies.
The version of the bill passed by the Senate is subject to concurrence by the House of Representatives and hopefully, the joint committee of both houses will pay close attention to the powers of the commission as set out in the constitution and lean on the side of the rule of law and due process.
Is it true that based on the passage of the bill, INEC has cancelled all its procurement orders for digital equipment and devices to enable electronic voting and transmission of results?
The business of the commission is anchored on transparency and due process. The commission is not engaged in the business of speculation and fortune telling. The commission is committed to deepening the use of technology in the electoral process.
The commission projects to procure at least 200,000 electronic voting machines for use in our elections. Based on this, the commission invited different companies to demonstrate their electronic voting machine solutions and the commission is evaluating these submissions.
The deployment of electronic voting machines in the electoral process is not dependent on the new electoral legal framework. An electronic voting machine with a paper trail will obviate any form of challenge and fears being expressed relating to the powers of the commission to deploy such machines.
Moreover, section 52(2) of the Electoral Act provides that “voting at an election under this Act shall be in accordance with the procedure determined by the Independent National Electoral Commission.”
What will happen to the Smart Card Readers and other devices which INEC deployed in the recent elections in Ondo and Edo states?
The Smart Card Readers; the INEC Voter Enrolment Device and the Z-Pad are important components of the electoral process and the commission will continue to deploy them. The proposed amendment to section 49 of the Electoral Act captures the deployment of the Smart Card Reader and or any other device for voter accreditation.
The commission will continue to upload polling unit results for public viewing. There is nothing in the law that prohibits the commission from deploying these electronic solutions.
Do you think that the new law addresses the key challenges of electoral violence and vote buying and result manipulation?
The law cannot address all the challenges of our electoral process. The existing law has substantially addressed the challenge of electoral violence, vote buying and result manipulation.
These are serious electoral offences. Unfortunately, those persisting in their bad behavior will continue to violate the law and the constitution. The time has come to break the cycle of impunity through the creation of an Electoral Offences Commission and Tribunal.
The commission will deal with the issue of investigation, arrest and prosecution of electoral offenders.
More fundamentally, the leaders of the political parties must develop the democratic spirit and come to terms with the fact that sovereignty rests with the Nigerian people.
There is a school of thought that says INEC has enough powers under the existing Act to deploy digital technology as much as possible in the conduct of elections. Do you share this view?
The commission will continue to deepen the use of technology within the existing legal framework. Unfortunately, the existing legal framework configured our electoral process to run manually.
Our preference is for the lawmakers to give the commission broad powers to deploy technology as at and when due.
It will be difficult to deploy full technology in the face of sections 63 of the Electoral Act. Section 63(1) of the Act provides 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.
Section 63(2) also provides that: “The form shall be signed and stamped by the Presiding Officer and counter signed by the candidates or their polling agents where available at the polling unit” and section 63(3) provides that: “The Presiding Officer shall give to the polling agents and the police officer where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.”
There seems to be a delay in the signing of the bill into law. Are we not likely to fall into the legal trap, which forbids any amendment to the legal framework at a certain time before the election?
The commission is not vested with the power to make laws. The commission works on the basis of the existing legal framework. The commission made far reaching submissions to the Senate Committee on INEC and the House Committee on Electoral Matters.
It is the responsibility of the National Assembly to conclude work on the bill and forward to the President for assent. Nigeria is a member of ECOWAS and African Union and both have protocols governing elections and Nigeria must be seen to respect and enforce its treaty obligations and protocols.
What basic pillars should an ideal Electoral Act have to produce free, fair and credible polls?
The electoral legal framework must be clear, unambiguous and not subject to arbitrary change. The Electoral Management Body must be independent and must be seen as such.
The political parties must have a level playing ground and no political party must be subjected to discriminatory practices. The people must be in a position to go to the polls unhindered and without coercion or violence being applied to blunt their choices. The adjudicatory organs of government must dispense justice fairly and speedily.
Don’t you think that our international partners such as the European Union (EU) could withdraw their support for INEC if Nigeria bungles the current efforts to reform the electoral process?
The commission has good relationship with its international partners. These partners support the commission in the areas of training, printing of materials, provision of equipment and communications.
The commission does not get and does not accept monies from its partners. It is good practice for the lawmakers to be forward looking and see Nigeria first before other considerations.