Introduction
It is no news that the 2023 presidential election has been concluded and winners returned elected. Unexpectedly, the outcome of the election left many in awe, wondering on the credibility of the poll as the major innovation aimed at curbing electoral malpractices of any magnitude was not substantially complied with by the electoral umpire. This threw the country into disquiet, palpable fear and stole the joy on the faces of Nigerians. It is the believe of many that their hope of birthing a new Nigeria has been dashed, shattered and sold by INEC a government institution clothed with the power of midwifing the peoples’ dream.
As expected, legal luminaries of impeccable character and knowledge, researchers, opinion holders, stakeholders, election observers and concerned Nigerians expressed divergent views on the performance of INEC in the conduct of the 2023 presidential elections. Prominent among critics are former president Olusegun Obasanjo and a United States Republican Senator, Risch who expressed dissatisfaction at the conduct of INEC for failing to exercise credibility, transparency and throwing away the trust reposed on them. A Former Minister of Justice and Attorney General of the Federation, Michael Aondoakaa, SAN describes INEC’s refusal to implement Electronic Transmission of Results on the day of election as “changing the goalpost in the middle of the game” which to many is fraudulent, surreptitious, disastrous, a clandestine move, rape of transparency amounting to usual Nigerian election abracadabra and conundrum which the institution is known for.
It is on this background, yearning of Nigerians for a better democracy and view to arresting the palpable tension, this article posits to explain INEC as a product of law, analyze its walk on a slippery path and to further discuss the effect of its failure to electronically transmit the 2023 Presidential election to its prescribed (IReV) portal.
INEC As A Child of Law
Section 153 (1) paragraph (f) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) established the Independent National Electoral Commission (INEC). Similarly, section 15 (a) of the Third Schedule of the Constitution provides: “The Commission shall have the power to organize, undertake and supervise all elections, to the offices of the President and vice-president, the Governor and Deputy Governor of a State to the membership of the Senate, the House of Representatives, and the House of Assembly of each State of the Federation.” From the foregoing sections, the power of INEC as body clothed with the power to conduct election in Nigeria is sanctioned and circumscribed in section 153 and 15 of the Third Schedule respectively.
On a similar note, section 1 (1) of the Electoral Act provides, “the Independent National Electoral Commission as established by section 153 of the Constitution (in this Act referred to as “the Commission”)- (a) is a body Corporate with perpetual succession; and (b) may sue and sued in its Corporate name”
The above section corroborates the provision of the Constitution on the status of INEC as a “child of the Constitution.” It is however, not in doubt but necessary to drive home my point. As a child of the Constitution, it is natural, evangelical and commonsensical for INEC to observe in-toto the provisions of the Constitution, the Electoral Act and its Manual in the conduct of election at any level and this is no doubt the yearning of the masses who suffers the deficit of trust and want of transparency occasioned by the Commission.
INEC Walked on a Slippery Path
Section 60 (1) (2) (3) and particularly subsections (4) and (5) of the Electoral Act provides the manner of counting and transfer of election results. Subsections (4) and (5) is reproduced herein for emphasis: “4 the presiding Officer shall count and announce the result at the polling unit;” “5 the presiding Officer shall transfer the results including total number of accredited voters and results of the ballot in a manner as prescribed by the Commission.”
Further, section 148 of the Electoral Act provides, “the commission may subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration.” The king of the provisions of the Electoral Act is section 149 which validate the actions of INEC officials, notices, form or document made or given as it relates to the electoral Act and the Constitution in the conduct of elections.
Following from the above, in view of the extant laws, bequeathing a foundation for seamless democratic process came the birth of the 2023 Manual for Election Officials or better put “Guidelines”. Clause 2.9.0 captures Electronic Transmission/Upload of Election Result and Publishing to the INEC Result Viewing (IReV) Portal. It provides, “one of the problems noticed in the electoral process is the irregularities that take place between the polling Units (PUs) after the announcement of results and the point of results collation. Sometimes results are hijacked, exchanged, or even destroyed at the PU, or on the way to the collation centers. It becomes necessary to apply technology to transmit the data from polling Units such that the results are collated up to the point of result declaration. The real-time publishing of polling unit-level results on IReV Portal and transmission of results using BVAS demonstrates INEC’S commitment to transparency in results management. This commitment is backed by sections 47 (2), 60 (1, 2 & 5), 64 (4a & 4b) and 64 (5) of the Electoral Act, 2022 which confers INEC with the power to transmit election results electronically. The system minimizes human errors and delays in results collation and improves the accuracy, transparency, and credibility of the results collation process.”
The above clause is highly resounding, very clear, transparent, confessional and a testimony to the introduction of BVAS technology and the mandatory electronic transmission of results which are novel and needed in our electoral process. I wonder what it takes INEC to comply with this evangelical, all embracing and dirt cleansing proviso of its Guidelines.
Similarly, clause 3.4.4, step 12, 13 and 14 of the INEC guidelines are instrumental and instructive for the conduct of a credible election. For emphasis the steps are reproduced seriatim: “12 use BVAS to scan/take a picture of the completed, signed, stamped and dated form EC8A for PUs where elections are held OR Form 40G (PU) where elections are cancelled or Election Did hold” “13 Upload the scanned copy of the form EC8A for PUs where elections are held OR Form EC40G (PU) where elections Did not hold to INEC Result Viewing Portal (IReV) as prescribed by the Commission” “14 take the BVAS and the original copy of each of the forms in tamper-evident envelope to the Registration Area/Ward Collation Officer, in company of Security agents.” See further Clause 4.2.2 step 1 to 24 of INEC Election Manual for 2023 Elections.
From the foregoing, it is deductible that the intention behind the making of the Electoral Act, and the novel Manual for the Conduct of elections is to bequeath a solid democratic process devoid of malpractices, that meets the yearning of Nigerians and of course the commendation of international community. It is therefore a flagrant display of impunity for INEC to detour on the D Day after spending billions of scarce resources to fund INEC’s Jumbo budget for the sole aim of employing technology and taking care of logistics that would aid the success of the 2023 Presidential election.
More so, INEC Election Manual/Guidelines are not mere literature or piece of document that could be thrown away or jettisoned at the behest or whims of its officials to serve the interest of some prebendalisic politicians who hold Nigeria and Nigerians to ramson every at election year. INEC Manual/Guidelines command the force of law and substantial deviation from it without good course is fatal, calamitous, destructive and catastrophic to our democracy. In APP V INEC the Court of Appeal held that INEC Guidelines form part of the Electoral Act and non-compliance with them means non-compliance with the Electoral Act. See also the case of HON. JAMES ABIODUN FALEKE V INEC & ANOR (2016) 18 NWLR PT. (1543) 61.
INEC’s failure to adopt the electronic transmission of presidential election results on the flimsy ground of network glitch whereas same network glitch did not affect the e-transmission of National Assembly results held on the same day with the presidential is not only suspicious but amounts to taking a walk on a slippery path which may throw the country into a fresh round of political turmoil and confusion if the Court finds its walk a substantial breach. The ball has again shifted to the Judiciary which as the last hope of the common man must resound in all reasonable sense the effect of the slippery path INEC did walk.
Conclusion
The laws are clear even to the blind and audible to the deaf that it is the sacred responsibility of INEC as an electoral umpire to deploy resources, manpower, technology and expertise where necessary in order to serve the best interest of the Nigerian populace. This sacred responsibility must not be sacrificed on the altar of materialism and self-serving interest. INEC’s failure to transmit the presidential election results real-time as prescribed in its manual is a slap on the intelligence of Nigerians. Then I ask, shall we continue to live in sin that grace may abound? God forbid!
If INEC can easily cast to a waste bin its mission which is to serve as an independent and effective election management committed to the conduct of free, fair and credible elections for a sustainable democracy in Nigeria on election day then we must all brace up to demand accountability no matter the cost even as the gubernatorial election draw neigh. It should never be the case of Nigeria in the words of Joseph Stalin, a former Soviet dictator that “those who cast the votes decide nothing, but those who count the votes decide everything.”
Stephen Okangla writes from the University of Maiduguri. He can be reached vide: stephenokangla@gmail.com | 08132040369
