THE POSITION OF LAW ON ELECTRONIC TRANSMISSION OF RESULTS BY INEC USING THE BIOMODAL VOTER ACCREDITATION SYSTEM (BVAS) _- Ibrahim Muhammad Usman

The Independent National Electoral Commission (INEC) is a federal agency established under section 153 (1)(f) of the 1999 Constitution of the Gederal Republic of Nigeria with the powers to regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions as enshrined under the canopy of section 160 (1) of the 1999 Constitution, this section confers upon the Independent Electoral Commission the Powers to issue out guidelines and Mannual for Election officials 2023 as well as the INEC Regulations and Guidelines for Conduct of Elections 2022.

Section 4 of the 1999 Constitution as well as item number 67 of the exclusive legislative list empowers the National Assembly to enact a law that regulates the modus operandi of the Independent National Electoral Commission (INEC) by virtue of being an agency of the federal government, the enactment of the Electoral Act 2022 (as Amended), this Act was recently amended to meet up with the standard and the reality of the Internet revolution of the Twenty-first century standard, the Act has provided certain mechanisms that are brought in place for the purpose of baptising and sanitising the Nigeria’s Electoral process that has long been characterised with lack of transparency and rigging, the amended Electoral Act has made a provision for the mandatory electronic transmission of election results and this provision is meant to beonbserv3d and strictly adhered to, some of the relevant provisions that affirm this position have been examined below.

Electronic transmission of election results is not an option but a mandatory requirement of the Electoral Act 2022, this is backed up by the provisions of sections 47(2), 60(1,2 & 5), 64(4a & 4b) and 64(5) of the Electoral Act 2022. For the avoidance of doubt, section 64 (4a & 4b) as well as other relevant sections cited are similar in wording and meaning, the section provides thus:

“A collation officer or returning officerat an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the—
(a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act ; and
(b) the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling unitsunder section 60 (4) of this Act”.

The use of Bimodal Voter Accreditation System (BVAS) has received a statiory backup under section 47 of the Electoral Act 2022 where the section prescribed the use of Card Reader or any other technological device that may be prescribed by the Commission (INEC) for the accreditation, authentication and verification of voters in an election, to this end, there is no contemplation as to the use of Bimodal Voter Accreditation System (BVAS) in the electoral process, the provisions of sections 47(2), 60(1,2 & 5), 64(4a & 4b) and 64(5) of the Electoral Act 2022 mandate the electoral officers to transmit electronically and transfer the results of all the elections at the polling unit, especially the Presiding Officer, non-compliance with this statutory requirement is fatal. The court in UKPONG & ORS. v. ETUK & ORS (2011) LPELR-CA/C/NAEA/269/2011 held that:

“there is no definition of the term “non-compliance” in the Electoral Act but it simply means failure to abide by, obey, follow or comply with the provisions of the Electoral Act in the process and conduct of an election.” Per GARBA, J.C.A (P. 47, paras. G-C).

It is evidently glaring that where the Presiding officer fails to transmit and upload the result of the polling unit of which he presides over, his conduct will be termed as non-compliance as state in the case of UKPONG & ORS. v. ETUK & ORS (Supra). The electronic transmission and upload is a condition precedent that authenticates and validate every election result as stated in the case of PANALPINA WORLD TRANSPORT HOLDING AG. v. JEIDOC LIMITED & ANOR (2011) LPELR-CA/L/522/2009 where the court emphatically interpreted the term ‘condition precedent’ to mean thus:

“An act that is to be performed before some right, dependent thereon accrues, connotes a condition precedent.” Per PEMU, J.C.A.(P. 27, Para. A)

It is of paramount importance to always consider the law first and place it above our sentiments and observe that the law is what it is and not what it ought to be, this issue has been settled by the plethora of provisions of the Electoral Act 2022 and opens no room for cunning debates.

Ibrahim Muhammad Usman, SABUK is an undergraduate pupil of law from Bayero University Kano, he can be contacted via the following contact details.
Phone: 08145101965
e-mail: imuhammadusman66@gmail.com