E-Transmission of Results and Senators’ Unclean Hands

Justice for the ‘Queen’s College 3’

Before I go into the word for today, I would like to make a brief observation – we have definitely not forgotten – it’s been about four years since my fellow QC (Queen’s College, Yaba, Lagos) Girls, Praise Sodipo, Vivian Osuniyi and Bithia Itulua, lost their lives as a result of an epidemic in the school, caused by the grossly unhygienic and inhumane conditions that the QC Girls were forced to live in, where faeces and other bacteria were the main contents of the liquid that these young ladies were given to consume as drinking water, and use for all other purposes – water that was not fit for human consumption. It’s looking like these three beautiful young girls, will not get the justice they deserve. On the contrary, Dr Lami Amodu, who was the Principal of my alma mater, QC, in 2017 when this ugly incident occurred, instead of facing criminal charges of Voluntary Manslaughter (amongst others) with her cohorts, was spirited away and rewarded with the Principalship of another school far from Lagos, and no one heard about the unfortunate incident again. Unbelievable!

The level of lack of accountability on the part of Nigerian public officials, with the connivance or enablement of Government, is past alarming, to say the least. Aside from the few who are unfortunate enough to be used as token scape goats to show that Government is fighting evil and corruption etc, the bulk of them are able to get away with murder, like Dr Amodu! To the best of my knowledge, Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) only grants immunity from suit and legal process to a selected few as stated therein, not every public official in Nigeria. Dr Lami Amodu and her cohorts, should be brought to justice.

Non-Confirmation of Lauretta Onochie

Last week, two incidents occupied the front burner of events in Nigeria – the non-confirmation of Lauretta Onochie as an INEC National Commissioner, and the rancorous passing of the Electoral Act Amendment Bill 2021 (EAMB) by the National Assembly (NASS). Why did the Senate ascribe their failure to confirm Ms Onochie, to the Federal Character provisions of Section 14(3) of the Constitution? Are we babies? When did Federal Character begin to be a factor in making appointments in this administration? If this is a ruse to somehow re-present Ms Onochie again as a candidate for INEC National Commissioner in the future, many Nigerians including my humble self, repeat unequivocally that Ms Onochie is partisan, and therefore, does not satisfy the requirement of being unbiased in order to qualify to be a member of the electoral umpire. She also perjured herself at the Senate Committee hearing. Such a person, is unfit to hold such a delicate and crucial position. See Third Schedule to the Constitution Part 1 F – INEC Section 14(2)(a) & 3(b) on partisanship and unquestionable integrity.
It is this type of behaviour by Legislators, plus their blatant self-centredness, over and above the needs of those they represent, that fuels the distrust and contempt which Nigerians feel for many of them, and Politicians generally. This suspicion is what we have seen play out, in the latest Nigerian political saga of electronic transmission of election results!

Electoral Act Amendment Bill 2021

While I haven’t had a chance to peruse the EAMB, a cursory look at it showed that our self-serving Politicians failed to amend Section 31 of the EA, which provides that INEC shall neither reject nor disqualify a candidate for any reason whatsoever. Any Aspirant who wants to challenge the documentation of another, must go to court.

With the ANDP and the two underaged candidates they presented in the last Bayelsa Gubernatorial election, I used their case to illustrate how nonsensical this provision can be when the Constitution has a made a specific provision in a matter, and the candidate clearly does not qualify; and the evidence of such non-qualification of the candidate is included in the documents submitted to INEC.

In the ANDP case, their candidates were less than 35 years of age, contrary to Section 177(b) of the Constitution. I concluded that, in such a case, it is the Constitution, and not INEC that has rejected or disqualified the candidate, and surely the time of the court should not be wasted on such clear cut matters. INEC should be able to weed out such obvious non-starters from incipiency.

But, because Politicians are fond of taking their chances in court, doing forum shopping to where they may find favour, this provision was not amended to, at least, include a proviso that in a case where the failure to meet the criteria is as clear as a bell, such as the ANDP candidates, or a baby or a Chinese or Haitian person wanting to run for office here, INEC should be able to decline such applications that do not meet these clear and basic conditions ab initio.

I must say that the debate on whether transmission of results should be done electronically or manually, eliciting the claim by Senators that only about 50% or so of Nigeria has network coverage, confirms the poor state of Nigeria’s infrastructural development, and how stagnant we can be in terms of progress. Naturally, the blame for this cannot be laid solely at the feet of this administration; it is the collective culpability of successive administrations. Successive Governments have simply failed to meet the economic and social objectives set out in Sections 16 and 17 of the Constitution, required to attain the requisite level of development Nigeria should have achieved by now.

More importantly, the distrust of NASS and Politicians by most Nigerians, has been sealed with cynicism (and rightfully so), as we can see clearly that many of their decisions are driven purely by self-interest. The way they manipulate the law and the system for their own gain, is sickening. Many are of the opinion that the polarisation of NASS on the issue of the electronic transmission of results, has to do with the fact that the APC wants to have room to manipulate and rig the elections in 2023 with the use of manual transmission of results, especially since their popularity may be at an all-time low, while the PDP are dead set against manual transmission of results, because they have used it for rigging purposes in the past, and can see what the APC is trying to achieve from 1000 miles away. What is that Nigerian proverb? About what an elder (PDP) can see sitting down on the ground, a child cannot see even from the top of the tallest tree!

History of Section 52 of the Electoral Act

In 2018, aside from the issue of amending Section 25 of the Electoral Act (EA) regarding the sequence of the elections, which fell through (another proposed amendment, again, borne out of the self-interest of some who believed that they may not win in the elections if theirs took place after the the Presidential election – I believe it was referred to as the ‘bandwagon effect’), we had a similar debate about amending Section 52 of the EA and electronic voting. In the 2010 version of the EA, Section 52 strictly prohibited the use of electronic voting machines. The 2015 amendment to Section 52 of the EA (done just before the end of President Goodluck Jonathan’s tenure), permitted voting to be done in accordance with the procedure determined by INEC. This meant that it was up to INEC, to determine which procedure would be adopted to run elections (and it paved the way for the previously prohibited electronic voting). And rightfully so too, since Section 78 of the Constitution gives INEC the mandate to register voters and conduct elections subject to its direction and supervision. In fact, Section 78 uses the word ‘shall’, meaning that conduct of elections (and everything pertaining thereto) must be under the direction and supervision of INEC. The use of the word ‘shall’ in a statutory provision, imports that a thing must be done. See the case of Ugwu v Ararume 2007 12 N.W.L.R. Part 1048 Page 367 at 441-442 per Tobi JSC.

Yet another proposed amendment of Section 52 of the Electoral Act failed to sail through in 2018, when President Buhari declined to assent to the 2018 Amendment Bill. The proposed amendment of Section 52(2) of the EA provided thus: “The Commission shall adopt electronic voting in all elections or any other method of voting as may be determined by the Commission from time to time”. Personally, I found the wordings of this section a bit clumsy, for the simple reason that, by virtue of the definition of the word ‘shall’ as highlighted above, it is a contradiction to command that you must do something in a particular way, and in the same breath, say you can do the same thing any other way that is determined by INEC. See Ugwu v Ararume (Supra). The second part of the proposed amendment, seems to make nonsense out of the first part.

However, I could see what the drafters of the amendment were trying to do – make allowance for manual voting or some other means, maybe in case of failure of the electronic process. This was the version that was again resubmitted for the EAMB 2021. The Senate Committee however, reverted to the 2015 version, but was more specific than the old version, by actually stating that electronic voting may be used, but that transmission of results electronically may be done where and when practicable. The act of then subjecting the decision as to the practicability of electronic transmission of results to the NCC, a Government agency for that matter, and NASS who are also running in the elections, is not just preposterous, but makes nonsense of INEC’s independence; as an independent body so empowered by the Constitution, INEC cannot be subject to these other bodies – it is independent; unless the Constitution is amended so to provide. It is trite that the grundnorm can only be amended by means of its Section 9, and not by a statute, as the EAMB 2021 attempts to do with this NCC/NASS inclusion into the electoral process.

A community reading of all the amendments to Section 52 of the EA, shows that they have never actually made electronic voting in Nigeria mandatory, and this new version is no different. The EA has only moved from outrightly prohibiting electronic voting initially, to recognising it as a form of voting that may be used.

Conclusion

Now, in 2021, six years after the door to electronic voting in our country’s electoral process was opened, should we really still be having arguments about insufficient network to conduct elections?

In any event, INEC has come out to debunk this claim, and affirm that they are able to transmit results electronically from any part of the country, as they have done so in at least 20 elections in the last couple of years. So, what is the need for this debate?

Credible elections, is one of the most crucial elements of democracy. Electronic voting and processes, are possibly the best way to deliver unimpeachable elections, especially in environments like ours, where Politicians are prone to election rigging and malpractice – it is difficult to rig elections using this method. To this end, Africa has embraced electronic processes in their voting systems; the question is, why should Nigeria lag behind?

Proponents of electronic transmission of results, say lack of network is just an excuse to leave room for manipulation of results. I watched a television interview of a former staff of INEC. He said that the card readers etc function rather well, but saboteurs connive to make sure that they malfunction on election day so that the manual process will be adopted instead, paving the way for Politicians to influence and falsify the voters list and results to their own advantage. As if this is not bad enough, lawmakers want to observe the Constitution in the breach, by usurping INEC’s constitutionally provided role, by giving themselves the task of determining whether results should be transmitted electronically or not! – an integral part of INEC’s mandate to organise and conduct elections. Could there be a better example of conflict of interest than this? Lawmakers helping themselves, while hurting our nascent democracy? Unlawful Lawmakers. Tah!

In my humble opinion, the EAMB 2021 is not yet ready to be passed. It still requires fine tuning. I have highlighted only two sections therein – Sections 31 & 52, and it is obvious that they still need to be worked on.