Enemies of democracy and electoral laws amendment

Election is the most important pillar of democracy. It is government by the people – the only way that the people realise the sovereignty which belongs to them. Two hundred million Nigerians cannot directly represent themselves in government, but they can participate in government through the election of their representatives. The representatives hold the office in trust for them and are expected to be accountable to them. However, and unfortunately, in Nigeria, this is not so, for the simple reason that the so-called representatives of the people were not voted into office by the people themselves. They rigged and manipulated their way into office. They are not accountable to the people but to the institutions that corruptly and fraudulently brought them to power.

Electoral laws guide the conduct of elections in Nigeria. The electoral laws include the Constitution, Electoral Act, and the Regulations and Guidelines for the Conduct of Elections. Even in the best of times and with the best of Electoral Act, elections are a challenge in Nigeria because of lack of character on the part of the institutions, especially, the legislature, executive, judiciary, and the Independent National Electoral Commission (INEC) that are constitutionally mandated to oversee the conduct of elections in Nigeria. It is the duty of the legislature to make or amend the laws. The executive has the duty to implement and enforce the laws, while the judiciary interpret the laws and settles disputes arising from the laws. INEC conducts the elections in accordance with the law. In its conduct of elections, INEC is expected to be independent.

Rule of law demands that everything must be done in accordance with the law. Where there are no adequate laws to guide the conduct of elections, the process is already rigged before it begins. The enactment of sufficient laws is the foundation for a successful election. Since the fall of man in the Garden of Eden, no human being is perfect and none is good enough to be entrusted with absolute power. It is the law that checks the excesses of every man. The legislature is the institution entrusted with the powers in a democracy. Once the legislature is compromised, democracy is endangered. It is in realisation of the danger our democracy has been consigned to by fraudulent elections that the legislature promulgated the Electoral Act 2022, which introduced electronic transmission of polling units results in real-time to be used to verify the correctness of the manually transferred polling unit results and legitimised the use of electronic card readers in the accreditation process. The INEC is empowered to determine the electronic device to use during elections.

Unfortunately, this discretion given to INEC to choose the electronic device to use because of the constant improvement in technology has been mistaken to be a discretion on whether to electronically transmit polling units results or not. The provisions of the Electoral Act 2022 were very clear on electronic transmission of results. The Act even declared that no collation should take place if electronic transmission has not been done. See sections 47, 50(2), 60, 62, 64(4) of the Electoral Act.

It is pertinent to note that the seven Justices of the Supreme Court in Atiku’s presidential election appeal to the Supreme Court differed extensively on whether the electronic transmission of results is mandatory or discretionary for INEC. Tijjani Abubakar, JSC, held in Atiku’s case (Atiku v I.N.E.C. (No.2) (2023) 19 NWLR (Pt. 1917) 761 at 1020-1021 paras D-D.) that: “The point must be made clearly that, the mere fact that the 1st respondent deployed BVAS machines and the IReV portal does not change the settled position that neither the Electoral Act nor the Regulations and Guidelines make it mandatory for results to be electronically transmitted or collated.” On the other hand, Agim, JSC, stated that: (Atiku v I.N.E.C. (No.2) (2023) 19 NWLR (Pt. 1917) 761 at 1042 paras D-G.) “The Electoral Act in S. 50(2) and S. 60(5) provide for the transfer or transmission of the polling unit result after announcement of the result at the polling unit and provides in S. 62(1) that after the recording and announcement of the result, the presiding officer shall deliver same along with election materials under security and accompanied by the candidates or their polling agents, where available, to such person as may be prescribed by the commission. It is therefore clear from the above provisions that the Electoral Act requires that the polling unit results be delivered to the Ward Collation Centre, by an earlier electronic transmission of same using the BVAS to the Ward Collation System and by a subsequent physical delivery of same and all election materials to the Ward Collation officer. As it is, the Electoral Act in Ss. 50(2), 60(5) and 62(1) requires the Presiding Officer to transmit the polling unit result and then physically deliver same along with election materials to the Ward Collation Officer at the Ward Collation Centre. It is obvious from the wordings of the said provisions that both transmission and physical delivery must be done.”

Indeed, the submission of Agim, JSC, that “it is obvious from the wordings of the said provisions that both transmission and physical delivery must be done”, reflects the position of the law. However, the Learned Justice ought to have included section 62(2) as one of the authorities that mandate the electronic transmission of polling units results to the collation system since he has mentioned section 62(1) that mandates the manual transfer of the polling unit results. This will legitimise the National Electronic Register of Election Results (NERER) as part of the election process which should be used for collation and not just discarded as a post-election record for the viewing pleasure of the public and historians. After all, the same Supreme Court held that “it is trite that provisions of an enactment are not to be read in isolation, but jointly.”

Owing to this confusion as to the correct position of the law, the Supreme Court pleaded with the legislature to amend the provisions of the Electoral Act, to make it clear to INEC that it is mandatory on it to transmit elections electronically to guarantee the integrity of the results. The court went further to declare that whosoever that stands in the way of electronic transmission of results is an enemy of democracy. Abba Aji, J.S.C., was very elaborate in explaining the purpose of the Electoral Act, 2022 in Atiku v INEC 13 (13 (No.2) (2023) 19 NWLR (Pt. 1917) 761 at 876-877 paras F-B.) thus: “Modernity and technology stare us in the face, and we cannot turn back the hand of time. To go against the use of technology or electronic transmission or transfer of election results in this hi-tech time and period is to be an enemy of democracy and to stick to the vicious cycle of election rigging, manipulation, falsification and subterfuge. Sincerely, the enactment of the 2022 Electoral Act was greeted with much relief and celebration, because we thought it would put things right and Nigerians will have their legitimate mandates delivered to them. In fact, the use, ease, fastness, security, convenience, accuracy, betterment and comfort of the use and deployment of electronic gadgets and devices in elections and transmission/transfer of results cannot be overemphasised nor compared with the old, rugged, uncertain and insecure system of manual voting and transmission of results. Surely and I believe that the new Electoral Act came in to address and cure the mischief that bedevilled the old Electoral Act, by introducing electronic voting and transmission/transfer of votes, which ought to have been adhered to by the commission, considering the promises and presentations in connection there to the Electoral Act made by INEC to Nigerians and the billions of Naira released for that purpose.”

It is to ameliorate this perceived legislative oversight and confusion that Abba Aji JSC, declared that he “will also encourage that the Legislators should nip to the bud the issue of laxity and latitude given to the commission to choose whichever method of transmission it wants; but adhere to a mandatory, clear and unarguable duty and obligation to be carried out by INEC via a clean and unambiguous statute.” (Atiku v I.N.E.C. (No.2) (2023) 19 NWLR (Pt. 1917) 761 at 877 paras B-C.)

It was shocking to hear from the Senate that it decided to retain the nebulous provisions which make it appear discretionary on INEC to electronically transmit results. By adopting this belligerent attitude against the amendment of the Electoral Act to reflect compulsion on INEC to transmit results electronically, the Senate has declared itself an enemy of democracy and consequently an enemy of the people by the express declaration of the Supreme Court. The only hope we have for the survival of our democracy is the House of the Representatives, which has passed the amendments in the Electoral Act that reflected most of the concerns of the Nigerian people. It was gratifying to understand that even the joint committee on electoral laws amendment of the National Assembly recommended mandatory electronic transmission of results. The strategy now should be that the House of Representatives and the democratic Senators should insist, during harmonisation of the different versions passed by the Senate and House of Representatives, that the mandatory electronic transmission of results stays. Anything short of this is a threat to the survival of our democracy. Moreover, Senator Godswill Akpabio should resign immediately for misleading the Senate and the Nigerian people or be removed from office. It is not enough for the Senators to be crying like children due to Akpabio’s numerous misdemeanours. They should remove him immediately. His cup is full.