Direct E-Transmission of Election Results from the Polling Units Is Mandatory, Not Directory, Under Nigeria’s Election Laws; Non-Compliance May Be Considered Fundamental, Fatal

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By Sylvester Udemezue

Before I start, and for the avoidance of doubts, may I respectfully refer to my earlier declaration, which remains my position:
“…President Buhari has obviously worked hard and spoken hard … to make the 2023 elections free, credible, peaceful, hitch-free and successful in producing a winner whose victory reflects the will of the majority of the electorate; whose victory represents the exact outcome of the votes cast, so that after all is said and done, Nigerians can say with considerable amount of certainty that we voted in an atmosphere devoid of manipulation and electoral malpractices and our votes really counted. …I believe, and if all these desires and plans come to pass as planned and as promised, my candidate Buhari would have won, and would indeed have become the actual, true and ultimate winner of the 2023 elections, being the hero of the elections and the man of the match who goes away with the golden booth. Below are [ELEVEN] of the many reasons my candidate before the during the 2023 election is Mr President Buhari, although (regarding the candidates whose names are on the ballot) whoever among them wins in a free and fair election is my candidate” [See: “Eleven Reasons Why He Is My Own Candidate For The 2023 Elections In Nigeria And Only His Victory Would Make Me The Happiest”; 24 February 2023; https://barristerng.com/eleven-reasons-why-he-is-my-own-candidate-for-the-2023-elections-in-nigeria-and-only-his-victory-would-make-me-the-happiest/]. Accordingly, as a work done by one who is not a politician and who therefore remains nonaligned in party political matters, the present commentary is strictly a legal opinion devoid of politics or extraneous considerations. I support whoever emerges the winner or winners through credible elections that comply with law. I say this because I know it’s very easy to be misunderstood during election seasons, especially in Nigeria. However, as I once wrote In a commentary titled, “The Place For “Kick-Backs” & “Bribes” In Our Efforts To Kick Back Corruption & Kick-Start Responsible Governance In Nigeria (A Legal Opinion By Sylvester Udemezue)” [https://barristerng.com/the-place-for-kick-backs-bribes-in-our-efforts-to-kick-back-corruption-kick-start-responsible-governance-in-nigeria-by-sylvester-udemezue/; 23 October 2018], “A major duty legal researchers and rule of law campaigners owe society in the practice of constitutional democracy for promotion and sustenance of responsible and responsive governance is to constantly offer legal opinions on issues of law to guide our leaders and institutions in the discharge of leadership responsibilities”. It is in view of this that I have decided to undertake a short investigation into whether the statutory provisions and requirements on electronic transmission of election results under the Electoral Act 2022 and the Regulations and Guidelines for Conduct of Elections, 2022 are mandatory or merely directory. A provision in a statute is said to be MANDATORY if the omission to follow it renders the proceeding to which it relates illegal and void, while a provision is said to be DIRECTORY if its observance is not necessary to the validity of the proceeding. An article by Jim Evans and published on 02 January 2018, by Cambridge University Press under the title “Mandatory And Directory Rules” has the following explanation: “Very broadly, mandatory rules are those procedural rules the breach of which necessarily invalidates the process to which they relate, while directory rules are procedural rules the breach of which does not necessarily have this effect”.

 

Section 60(5) of the Electoral Act 2022 provides that “The presiding officer SHALL transfer the results including total number of an accredited voters and the results of the ballot in a manner prescribed by the Commission”. The use of “shall” here, it’s respectfully submitted, implies that the presiding officer MUST transmit the results as prescribed by the INEC Guidelines. The Independent National Electoral Commission (INEC) on 3 June 2022 released the *Regulations and Guidelines for the Conduct of Elections, 2022*. The Regulations and Guidelines were issued pursuant to Section 149 of the Electoral Act, 2022 and the Regulations and Guidelines supersede all previous regulations and/or guidelines on the conduct of elections, issued by the INEC. The new Regulations and Guidelines cover elections and arrangements for their conduct, accreditation and voting procedure at elections, and collation of election results and making returns.They apply to the conduct of elections to offices of: “President and Vice President; Governor and Deputy Governor; National Assembly (Senate and House of Representatives); State Houses of Assembly; Chairmen and Vice-Chairmen of the Federal Capital Territory (FCT) Area Councils; and Councillors of FCT Area Councils Legislature.”

Paragraph 38 of the Regulations and Guidelines, 2023 makes Electronic Transmission of Results
and Upload of Results to IReV mandatory. The paragraph requires that when voting and announcement of results have been completed at a polling unit, the Presiding Officer “(1) must Electronically transmit the result of the polling unit to INEC’s collation system; (2) Must use the BVAs to upload a scanned copy of the EC8A result sheet to the INEC Result Viewing Portal (IReV); and (3) [must thereafter] Take the BVAS and the original copies of all forms in a tamper evident envelope to the RA/Ward Collation officer in the company of security agents. Polling Agents may accompany the PO to the RA/Ward Collation Centre”. [See: PLAC Publication: Simplified Electoral Act 2022, and INEC Guidelines. FEBRUARY 22, 2023 <https://placng.org/Legist/plac-publication-simplified-electoral-act-2022-and-inec-guidelines/>]. Thus, the Regulations and Guidelines require that the presiding officer must electronically transmit the results DIRECT from the polling units, after which the results would then be taken manually to the collation centres. This means that the Regulations and Guidelines prescribe TWO levels of collation:(1). Electronic Transmission (collation) which must be done direct from the polling units; and (2). Manual collation which would then follow after electronic Transmission. Note that the manual collation is the LOWER LEVEL OF COLLATION. See section 64(5) of the Electoral Act 2022

Now, what’s the legal effect of failure to comply with these provisions on DIRECT ELECTRONIC TRANSMISSION FROM THE POLLING UNITS, one may ask? Before answering this question, let’s look also at Section 64(5) of the Electoral Act, 2022 which requires that “the collation officer or returning officer shall use the accredited voters recorded and transmitted DIRECTLY FROM THE POLLING UNITS under section 47(2) of this Act and the votes or results recorded and TRANSMITTED DIRECTLY FROM POLLING UNITS under section 60(4) of this Act, to collate and annouce the results if a collated result at his or a lower level of collation is not correct”. It is respectfully submitted that the legal and practical implications of the provisions of Section 64(5) of the Electoral Act 2022, are:


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1️⃣ Electronic Transmission of election results direct from the polling units is MANDATORY;
2️⃣. Collation of results manually (the lower level of collation) is still allowed;
3️⃣. Where there is a conflict between RESULTS TRANSMITTED ELECTRONICALLY DIRECT FROM THE POLLING UNITS and results as collated manually, the results as transmitted electronically DIRECT FROM THE POLLING UNITS shall prevail;
4️⃣. In order to determine whether such a conflict exists, there must have been direct electronic transmission from the polling units, before the manual transmission. Both must co-exist.
5️⃣. The results transmitted DIRECT FROM THE POLLING UNITS *(higher level collation)* are the yardsticks for measuring the authenticity of the results collated manually *(lower level collation);*
6️⃣. The collation officer at the collation centre, must be afforded the opportunity of measuring the authenticity of the manually-collated results by matching them against the electronically transmitted results. This opportunity may only exist where there has been direct electronic Transmission from the polling units before the manual collation, so that both must be present to enable the collation officer to make an informed determination.
7️⃣. Failure to transmit the results electronically DIRECT from the polling units is a *fatal* violation of the law, because the collation officer is then denied the mandatory opportunity to verify the authenticity of the manually collated results by matching them against the electronically transmitted results.

From all the aforesaid, it could reasonably be concluded that failure to transmit results DIRECT electronically from the polling units is more than a substantial non-compliance with extant law. From the law, it appears that the foundation of the authenticity of the entire electoral process in Nigeria, under the Electoral Act 2022, is hinged on electronic Transmission of the results direct from the polling units. Where this fails, the affected election fails because its credibility has been completely lost on account of absence or failure of DIRECT ELECTRONIC TRANSMISSION FROM THE POLLING UNITS; direct electronic transmission being the surest safeguard provided by the extant electoral laws for determining the authenticity and credibility of the results of the elections. It’s therefore a flagrant desecration of the extant electoral law to refuse/fail to transmit the results electronically DIRECT from the polling units. It’s respectfully hereby restated that there can hardly be any talk of CREDIBLE and FAIR elections under the Electoral Act 2022 without direct electronic transmission of results from the polling units.

The provisions on Direct electronic transmission of results are put in place to cure the mischief (rampant manipulation of results) which had persisted as a result of the lacuna in the previous/old law. Where electronic Transmission fails, the whole purpose of the Electoral Act 2022 is grossly defeated and the election fails for being illegal and invalid. The requirements of the Electoral Act 2022 and the Regulations and Guidelines on DIRECT ELECTRONIC TRANSMISSION OF ELECTION RESULTS FROM THE POLLING UNITS are a MANDATORY REQUIREMENT which may NOT be flouted with impunity, it seems. It is truism in law, that breach of a MANDATORY statutory provision is fatal to the act done in breach thereof. Hence, in AMALGAMATED TRUSTEES LTD V. ASSOCIATED DISCOUNT HOUSE LTD (2007) LPELR-454(SC), the Supreme Court said (Per OGBUAGU ,J.S.C ( Pp. 75-76, paras. F-A ), “It is settled that not every breach of a statutory provision, renders an act void, and that to be void, it must not be merely directory, but mandatory. See Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; (1997) SCNJ 600 at 649 – per Ogundare, JSC (of blessed memory).” Further, where a statute prescribes that an act MUST be done in a particular way, that act can only be validly done in the prescribed manner. Also, in SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC), the Supreme Court said (Per KARIBI-WHYTE ,J.S.C pp. 19-20, paras. F-C) that: “It is well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory, such power can only be exercised within the limits prescribed by the statute. – See Bowaje v. Adediwura (1976) 6 S.C.143.”

This being the case, it is most unfortunate, embarrassing and heart-rending, that INEC had collected over N350 billion from the coffers of the Federation of Nigeria (on the condition that it would comply with the law through mandatory direct electronic transmission of results from the polling units as prescribed by law with the aim of giving Nigerianns credible elections in 2023) only to turn around to flagrantly flout the laws of the land by deliberately refusing or failing to electronically transmit directly from the polling units, more than 80 percent of the results. This is a national shame and embarassment, perpetrated in the full glare of the world. See: *See: *2023: NO GOING BACK ON ELECTRONIC TRANSMISSION OF RESULTS, INEC REASSURES* (Channelstv; 26 October 2022).

Meanwhile, In a release titled “ELECTRONIC TRANSMISSION & COLLATION OF RESULTS” which comes under the general heading “2023 General Election Updates” and published by INEC on its own website (<https://main.inecnigeria.org/?page_id=11312> accessed on 28 February 2023 at 1.00pm), the INEC wrote as follows:
“One of the most progressive provisions of the Electoral Act 2022 is the provision for result management from the Polling Units (PUs) to various levels of collation and declaration of winners. The process, as provided by the Act, is basically still manual involving the recording of results on forms (as determined by the Commission) and their delivery to various levels of collation until declaration and return are made. However, the law also provides for electronic transmission of results. In the event of dispute arising in the course of collation, the electronically-transmitted result shall be used to resolve it. These are clearly provided for in Sec. 60 of the Act which deals with the counting of votes, their entry into specific forms endorsed by INEC officials and candidates/polling agents and their transfer to collation centres. Furthermore, Sec. 64 (4), (5) and (6) of the Act provides for the recording and transmission of accreditation data and election results directly from the PUs using the Smart Card Reader or any other electronic device determined by the Commission”.

Then, explaining the Import of the Legal provisions clearly, INEC says that “the law provides for a dual mode. The first mode is the 4-step manual procedure at PUs involving: (1) Counting of ballot papers; (2) Recording of results on specific form (EC8A); (3). Endorsement of EC8A by candidates/polling agents; and (4) physical delivery to collation centres. The second mode entails a 2-step electronic procedure from PUs involving: (1) Recording of accreditation data; and (2) Direct transmission of results”.

Finally, towards explaining the procedure for implementation to ensure compliance with the law, INEC wrote:”

“After an election and the completion of results management procedure at the PU, the The Presiding Officer should take the following action (1).Transmit a clear image of EC8A for purposes of collation. This goes to the IReV; and (2). Deliver by hand, the hard copy of EC8A and the BVAS to the Registration Area (RA) Collation Officer. 2.The Collation Officer, with the support of the RATECH, should have access to IReV. The result held temporarily as part of IReV and the number of accredited voters in the BVAs should be compared with what is recorded in the manually-delivered result to effect collation (Sec. 64[4] and [5] of the Electoral Act 2022). The IReV result or the scanned image of the EC8A from the BVAS should also be used in case any issue arises during collation and there is need to resolve any dispute regarding the results (Sec. 64[6]), following the procedure provided in the clause 93(a) of the Commission’s Regulations and Guidelines for elections, 2022. 3.The same scenario should be implemented from one level of collation to a higher one until the result is declared and a return is made 4. This approach integrates the IReV images into the collation process to satisfy the electronic (direct) transmission of results”.

Truth is, many citizens of Nigeria, home and abroad, who had never been interested in the Nigerian electoral process owing to its general lack of credibility, had shown tremendous interest in this 2023 election, and actually returned to Nigeria and went out to vote because of (1) the legal PROVISIONS for mandatory electronic transmission of results direct from the polling units; (2). the various open assurances by the INEC that the law in this respect, would be complied with, and (3).The huge sum of money released to the INEC to ensure that the law was complied with and to ensure that the 2023 presidential elections were a true reflection of what actually transpired at the various polling units across the country.

In this instance, as reports show, abs as admitted by the INEC, INEC FAILED or REFUSED TO comply with the law by withholding in most States the passwords that would enable presiding officers across Nigeria to electronically transmit the results DIRECT from the polling units as MANDATED by both the Electoral Act and the Guidelines made by INEC itself. The INEC itself has confessed that it failed to transmit the results electronically DIRECT from the polling units, contrary to the law. See: “GeneralElections: INEC admits poor access to IReV, regrets delay” [26 February 2023: TheEagleOnline]. See also: INEC OFFICIALS HAVE SUCCESSFULLY UPLOADED 37,776 OUT OF 176, 846 EXPECTED RESULTS. Source: https://www.inecelectionresults.ng.

Reports had it that by the end of 25 February 2023, the INEC official from the polling Units across the country had only successfully transmitted and uploaded 37,776, of out of 176, 846 results from the 176,846 polling units in Nigeria. [<http://opr.news/s62e66661230226en_ng?link=1&client=news>]. INEC later confirmed its own failure. See also: #NigeriaElections2023: INEC Speaks On Why Result Viewing Portal (IReV) Is Not Working, Blames Technical Hitches For Challenges” and assuring “These results cannot be tampered with and any discrepancy between them and the physical results used in collation will be thoroughly investigated and remediated, in line with Section 65 of the Electoral Act 2022” [ThenigeriaLawyer; 26 September 2023]

Are we cursed as a nation? When shall we wake up to do things right like normal human being operating in the 21st-cevtury? Shall we just continue in sin and iniquity that grace may abound? In the case of in AMAECHI V. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227), Hon Justice PIUS OLAYIWOLA ADEREMI, JSC said: “I wish to say that in all countries of the world which operate under the rule of law, politics are always adapted to the laws of the land and not the laws to politics. Let our political operators allow this time-honoured principle to sink well into their heads and hearts.” His Lordship, IBRAHIM MOHAMMED MUSA SAULAWA, JCA, reexhoed this in WHYTE V KWANDE (APPEAL NO.CA/PH/161/99), in a judgment delivered on January 4, 2007, the Court of Appeal, Port-Harcourt division) when he declared, I should have thought that fairness, even handedness and above all respect for rule of law would characterize the behaviour and standards of such men who found themselves in public offices”.

POST SCRIPTUM:

Under the Electoral Act 2022, non compliance with mandatory provisions of the law is a ground for review (which may include, but not limited to, outright cancellation) of any results even after declaration/return has been made. The proviso to section 65(1)(c) of the Electoral Act, 2022 gives the INEC the power within seven days of the declaration of any election results and the return of any candidate, to REVIEW the DECLARATION or RETURN where INEC determines that the declaration or return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.

▪️To be continued!
Respectfully,
Sylvester Udemezue (Udems).
08109024556.
mrudems@yahoo.com.
(28 February 2023)



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