Has the ninth Senate acted beyond its powers by attaching conditions to electronic transmission of election results by the Independent National Electoral Commission (INEC)? Lawyers analyse the matter, writes ROBERT EGBE
Fifty-seven years after electronic voting systems made its debut in America for the country’s 1964 presidential election, an aspect of it – electronic transmission of results – is causing controversy in Nigeria.
Last week, the National Assembly passed the Electoral Amendment Bill. If signed into law by President Muhammadu Buhari, it will repeal and re-enact the 2010 Electoral Act.
The bill made critical interventions regarding the Independent National Electoral Commission (INEC)’s introduction of modern technologies into the electoral process, particularly accreditation of voters, electronic voting and electronic transmission of results from polling units.
INEC is authorised by law to organise and supervise elections in the country.
But, to the chagrin of many Nigerians and the main opposition Peoples’ Democratic Party (PDP), the senators empowered the Nigerian Communications Commission (NCC) and the National Assembly to determine the use of electronic transmission in an election.
Last Thursday, a majority of members of the upper chamber voted for an amendment of Section 52 proposed by the Deputy Whip, Sabi Abdullahi, that: “The commission may consider electronic transmission provided the national network coverage is adjudged to be adequate and secure by the Nigerian Communications Commission and approved by the National Assembly.”
Fifty-two senators voted in favour while 28 voted against. Twenty-eight senators were absent during the voting process.
However, the House of Representatives countered the senators the next day. It ceded the prerogative to decide the mode of transmitting election results to INEC.
The House upheld Clause 52(2) which allows INEC to determine when, where and how voting and transmission of results will be done.
Its version states: “Voting at an election and transmission of result under this bill shall be in accordance with the procedure determined by the commission.”
Benefits of real-time transmission of polls results
Collation centres are widely acknowledged as the ground zero of results manipulation, even after election results would have been announced at polling units.
To check this, INEC permitted real-time transmission of polls results from polling booths during the September 19, 2020 Edo governorship elections and that of October 10, 2020 in Ondo.
It introduced a dedicated online portal known as ‘INEC Result Viewing’ that enabled Nigerians to view results from polling units in real-time during the Edo State governorship election, as well as the Nasarawa Central state constituency bye-election in 2020.
This enabled the contestants do their own tally, thereby making it difficult for would-be riggers to manipulate results at collation centres.
Countries transmitting election results electronically
The case for real-time transmission of polls results is hard to fault. Globally, more and more countries are resorting to this tech to improve polling credibility.
The United States, for instance, uses touch screens for voters to mark choices, scanners to read paper ballots, scanners to verify signatures on envelopes of absentee ballots, and web servers to display tallies to the public. There are also computer systems to maintain voter registrations, display electoral rolls to polling place staff as well as machines to count ballots.
America is not alone.
Brazil successfully adopted nationwide electronic voting including transmission of results in 2000.
India has also successfully implemented a home-grown electronic voting system. Since 2004, the Electoral Commission of India has been deploying electronic voting machines in nationwide parliamentary elections. The Indian electronic voting machine (EVM) enjoys great credibility due to voter education, competent logistics planning and robust stakeholder outreach.
Similarly, Estonia has implemented Internet Voting for all parliamentary elections since 2007. In the 2015 parliamentarian elections, 1/3 of Estonians chose to vote online thanks to a highly effective voter education effort and election stakeholder buy-in. Estonia is the first country to offer internet voting as an option in all elections.
In the Philippines, given the logistics involved in organising elections in a country spread out across 2,000 inhabited islands and a past ripe with chaotic elections, the Commission on Elections (COMELEC) implemented an automated voting system for the 2010 elections. They selected an Optical Mark Recognition (OMR) system. Some 90,000 optical scan voting machines were successfully used in the 2010, 2013, and 2016 elections. The automated voting system has contributed to peaceful elections because election results have been released very quickly. In the May 2016 presidential election the winner was known within four hours of polls closing.
There are however, many countries which do not permit electronic transfer of results, including France and the United Kingdom, for instance.
‘Where and when practicable’
Section 52(3) of the bill was originally composed to read: “The Commission may transmit results of elections by electronic means where and when practicable.”
Some lawmakers and independent observers raised eyebrows about the implications of the phrase, suggesting that it could be used to disenfranchise voters.
But Abuja-based lawyer Dike Chukwumerije disagreed. He said writing the phrase into the Electoral Act would not have disenfranchised voters living in areas where the electronic transmission of results is not practicable.
He explained why in a Facebook post last Friday.
Chukwumerije said: “Because ‘MAY’ is not ‘SHALL’. It means INEC does not have to transmit results electronically, except it decides it is practicable to do so. It means that in areas where electronic transmission of votes is not possible, INEC will transmit results in the same way it does today. That is, by carrying the result physically from the polling unit, to the local government, to the Senatorial District, to the State, and then to Abuja.
“It means that even in areas where electronic transmission is practicable, INEC will, after sending these results electronically, still transmit them physically, since we will need the physical results to compare the electronically transmitted results against. You see? It means that there is no scenario – if the phrase is passed into law – under which any voter would be disenfranchised.
“Because, in truth, that phrase has NOTHING to do with the right, or access, to vote. That remains sacrosanct. That phrase is about creating a secondary way of cross-checking the original figures entered in at the polling unit against the ones we find at the collation centre. That phrase is about making it easier to detect when figures have changed in the course of moving from polling unit to Abuja. That phrase is about setting up another layer of checks against one of the more notorious ways of rigging in modern Nigeria. You see? That phrase is about freer and fairer elections.”
Neverthelesss, Abdullahi proposed the amendment to the clause and a majority of the Senate voted that the NCC and the National Assembly would need to give approval to INEC for electronic transmission of results at any given election.
When his position was put to vote, 52 senators voted in favour while 28 voted against, with 28 absentees, exclusive of the Senate President.
The Senate’s Majority Whip, Orji Kalu, explained why he rejected the original clause in favour of Abdullahi’s.
“I am voting ‘no’ because there is no telecommunications network in my village and I will not want my people to be disenfranchised,” Kalu said.
Similarly, the statutory chairman of the committee, Deputy Speaker Idris Wase argued that those without network coverage would be disenfranchised.
“I make bold to say that only less than 20 per cent of my constituency has network coverage,” he said at the plenary.
“What happens to our brothers in Maiduguri, Yobe where masts are down,” he added.
Countries where electronic transmission of results failed
It may not seem like it, but the senators may have a point, somewhat, albeit on different grounds.
Malawi in 2014 bought a sophisticated electronic transmission system for its elections, but it was so sophisticated that most districts could not get it to work.
The fax system used as a back-up collapsed under the strain, and in the end, after days of delay, the results were hand-carried to the national headquarters.
The controversy in Nigeria is also reminiscent of the situation Zambia faced in 2014, when the Electoral Commission of Zambia (ECZ) announced that it would not use mobile phones to transmit election results in the 2015 presidential by-election from polling stations to constituency centres.
ECZ chairperson at the time, Irene Mambilima, said the commission would not use the electronic (mobile phones) transmission of results from polling stations, but would rely on polling agents to physically deliver the results to the 150 constituency centres.
She said, however, that the election results would be transmitted electronically from constituency centres to the Commission’s headquarters and the national results centre at Mulungushi International Conference centre in the capital Lusaka.
Like in Nigeria, the ECZ position followed opposition to electronic transfer by political parties claiming that the system could be manipulated by the ruling party in order to rig the elections.
INEC’s powers, duties reduced
Stakeholders have argued that with the new clause passed by the Senate, INEC’s only job now is to conduct election. The NCC would suggest e-transmission of results, while the National Assembly would ratify the suggestion.
Ceding the power to determine the use of electronic transmission in an election to political office holders and politicians could be problematic.
Following serious disagreement among members last Thursday, House of Representatives Speaker, Femi Gbajabiamila, invited the NCC to address the House on whether the country had attained the capacity to seamlessly transmit election results from across the 36 states and the Federal Capital Territory (FCT), using available telecommunications services.
NCC’s Director of Technical Services, Malam Ubale Maska, while testifying before the lawmakers, disclosed that only 50.3 per cent of the 190,000 polling units in the country were covered by 2G and 3G networks.
Claiming that the remaining 49.7 per cent was without network coverage, the NCC official maintained that only a 3G network could adequately transmit the results.
Maska further admitted that INEC server was susceptible to manipulation by hackers even as the INEC Chairman, Mahmood Yakubu, failed to appear before the House to state his own side of the issue.
INEC counters NCC
INEC reacted to the NCC’s position last Saturday and dispeled insinuations about its ability to transmit election results electronically in 2023.
The commission said it had the capacity for electronic transmission of results from remote areas of the country.
“We have uploaded results from very remote areas, even from areas where you have to use human carriers to access,” INEC’s National Chairman and Commissioner for Information and Voter Education, Mr. Festus Okoye, said on Channels television.
“So, we have made our own position very clear, that we have the capacity and we have the will to deepen the use of technology in the electoral process.”
Gbajabiamila: House not against electronic transmission
Speaker Femi Gbajabiamila said the House was not against electronic transmission of result, but rather interested in ensuring that the vote of every Nigerian is protected.
He said: “We have consistently said that every vote must count. It is not about 10 or 20 per cent coverage or even 90 per cent. If one person’s vote is not counted, it will defeat what we have said on this floor that every vote must count.”
According to him, there is a “big difference” between electronic voting and electronic transmission of result.
Gbajabiamila added: “From my research, electronic voting does not even take place in any European country that I know of. Not in Germany, not in England, not in Spain, not in France or any part. In fact in Germany, they did a referendum on electronic voting and they voted against it.
“So, I don’t think that electronic voting is feasible right now. What we have been talking about is electronic transmission and from what we have been told today, we need to do more work so that everybody’s vote will be counted.”
Nigerians must be prepared to go to court – Banire
Dr Muiz Banire, SAN, in his article, ‘Electronic transmission of election results, a must’, lampooned the lawmakers who voted against electronic transmission, describing them as undemocratic.
Banire said: “It is distressing for Nigerians to learn that this progressive step is on the verge of being reversed by the anti-democratic forces in the National Assembly.
“In the attempt to rationalise the removal of the power of the INEC to deploy electronic transmission of results, several lame excuses have been put forth, prominent of which is the challenge of telecommunications network in some parts of northern Nigeria.
“Is this enough excuse to halt the progressive step? I do not think so…having identified the challenge of network unreliability in some parts of the country, the expectation would be to address the challenge by the National Communications Commission, in conjunction with the various telecommunication companies in the country.”
He urged Nigerians to be prepared to sue, should the President assent to the bill.
“We must be proactive by preparing to challenge it in the court, not necessarily to win the case but at least, to expose the dubious intention of our politicians in this regard by denying us the right to choose how we are governed. We can also start mobilizing against such retrogressive bills now.”
A national tragedy – Ozekhome
Activist-lawyer, Mike Ozekhome, SAN, also faulted the National Assembly for voting against electronic transmission of results.
Ozekhome, who was delivering a special lecture at the 2021 graduation ceremony/prize giving ceremony of the Pacesetters’ School Abuja, said the concept of democracy is no longer in practice in Nigeria.
He said the “national tragedy” in the last two days at the National Assembly was for the sole interest of politicians in order to rig elections.
“Why do we choose to kill electronic voting when across the world, even Democratic Republic of Congo here is using it? You are even now making INEC to be no longer independent. Why are we killing this country? Why are we on a journey of no destination?” he said.
Senate’s position unlawful – Ubani
A former Nigerian Bar Association (NBA) Vice President, Mr Monday Ubani, argued that what the National Assembly did on the electronic voting clause “is to pass a bill that clearly violates the constitution they swore to uphold.”
According to him, that act is “the biggest embarrassment of the century. It is more shocking and depressing to see those who claim to be lawyers amoFifty-seven years after electronic voting systems made its debut in America for the country’s 1964 presidential election, an aspect of ingst them running around all over the place to defend the absurd illegality.”
He argued that even a cursory look at the provisions of the constitution will make the “absurdity” clearer.
Ubani said: Section 78 of the 1999 Constitution as Amended provides:- “The registration of voters and conduct of elections shall be subject to the direction and supervision of Independent National Electoral Commission (INEC).
“The same Constitution in the Third Schedule, Part 1, F, S.15 provides that: “INEC has power to organise, undertake , and supervivise all elections”. The constitution further provides that in carrying out the aforementioned responsibilities, “INEC operations shall not be subject to the direction of anybody or authority.
“The question then, is the so called affirmation of network coverage and its security by NCC and approval of the National Assembly(a party to an election) not an undue interference to INEC’s power to transmit the result of an election which falls squarely under their constitutional power?
“How did the members of the National Assembly see their role in approving the issue of network coverage as proper under our constitutional democracy when the role assigned by the constitution to them is Legislation and not Execution of the laws they enact?”