NASS: Manual or Electronic Rigging? (Part 2)

Introduction

Last week, we saw how the National Assembly (NASS) was thrust into chaos, during the consideration of the Electoral Amendment Bill on 15th July, 2021. While this amendment should have been an upgrade to the Electoral Act, 2010, the reverse seems to be the case. Today, we shall conclude our discourse.

Senate’s Ruling on Electronic Transmission of Results

The Senate passed the Electoral Act (Amendment) Bill, 2021, after a clause-by-clause consideration of the Report of the Committee on INEC. The Committee on INEC had reported that “INEC may transmit results of elections by electronic means, where and when practicable”. Senator Aliyu Sabi Abdullahi (APC, Niger) proposed an amendment to this recommendation, on the basis that electronic transmission of results would disenfranchise some Nigerians in areas with poor or no network coverage. Senator Albert Bassey Akpan (PDP, Akwa Ibom) contended this proposal via a motion which was unsuccessful, after a voice vote. The approval of Senator Sabi’s amendment by Senate President, Ahmad Ibrahim Lawan, was met with chaos and uncomplimentary verbal exchanges amongst Senators.

Senator Enyinnaya Abaribe (PDP, Abia), then cited Order 73, calling for division and allowing Senators to contest the ruling of the Senate President. The Senators took turns to vote on the amendment proposed by Senator Sabi, and at the end, 52 Senators voted for Sabi’s amendment while 28 voted against it. All 52 Senators who voted for the amendment were from the APC ruling party, while the 28 who voted against were of PDP. There is no other parliamentary or legislative decision taken elsewhere in the world, where the divide is based solely on a political basis, rather than a merit basis.

Consequent upon the conclusion of the open voting, the Senate President, thus, approved the amendment which provided for electronic transmission of results during elections, but with a caveat that, “the national network coverage is adjudged to be adequate and secure by Nigerian Communications Commission (NCC), and approved by the National Assembly”.

APC’S Unruly Role in this Taboo

It was reported by The PUNCH, that the All Progressives Congress (APC) had rallied its Senators to reject moves to adopt electronic transmission of election results in 2023. The source gathered that APC had been reaching out to its lawmakers through zonal caucuses to insist that their position on this controversial issue would test their party loyalty.

Recall that the Senate Committee on INEC, had recommended the use of electronic transmission of results in its election.

The Committee was chaired by Senator Kabiru Gaya (APC, Kano) who, on Thursday, 15th July, 2021, voted against the use of electronic transmission. When questioned as to why he voted against the recommendation in the report of the Committee he headed, he said, “If you prepare something and you later saw an improved version of it, you can go for it. There is nothing wrong if the Chairman of a Committee, supports the amended version of a report he presented”. How is voting against electronic voting an improved version? What exactly does it improve? In my opinion, I believe it further solidifies the allegations that the APC rallied its Senators to vote against the electronic transfer of election results,. and speaks truth to it.

In a publication by PremiumTimes.ng on the 16th of July, 2021, a high-ranking APC member, whose anonymity was preserved, stated as follows:

“This is politics and as the governing party, you don’t allow the opposition to dictate the pace. Those in opposition certainly know something we don’t know. The way they (PDP) were pushing for this electronic transfer of results or electronic voting thing using NGOs, international agencies and all that, should tell you something”.

This statement says it all. It highlights that, the debate on the electronic transmission of votes was merely a power play battle for the APC, and not a battle for the betterment of future elections in Nigeria, and the Nigerian citizens in general. It is a despicable truth, that urgent and relevant issues affecting the country and its citizens are argued on a power level, rather than with the interests of the country at heart.

Is the Senate’s Ruling Constitutional?

NO! The decision of the Senate on the electronic transmission of election results, lack any form of constitutionality. For the avoidance of doubt, Section 78 of the 1999 Constitution provides that “the registration of voters and the Conduct of Elections shall be Subject to the Direction and Supervision of [INEC]”. The Constitution further provides that: “INEC OPERATIONS SHALL NOT BE SUBJECT TO THE DIRECTION OF ANYBODY OR AUTHORITY”. The words direction and supervision suggest that INEC is the primary body to determine how elections are to be conducted, and also supervise the conduct of elections.

Thus, the Constitution expressly and impliedly provides that INEC is not subject to the governance of anybody, authority or agency, let alone to talk of a body that is not recognised by the Constitution (NCC).

It is obvious that the “electronic transmission of election results” constitutes the conduct and supervision of election, which INEC has been exclusively tasked with. It is equally obvious that the National Assembly has the power to create laws and amend Acts, but such power to create and amend laws must be consistent with the 1999 Constitution, which is the highest law of the land, the grundnorm and fons et origo.

The supremacy of the Constitution to all other laws and Acts, has been emphasised in a plethora of cases. In UGBOJI v STATE (2017) LPELR-43427(SC), the Supreme Court per AMIRU SANUSI, JSC (Pp 23 – 23 Paras B – D), held thus:

“My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria of 1999, as amended, had by Section 1, made provision to emphasise or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution, or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G. Ondo State v AG of the Federation and Ors (2002) 9 NWLR (pt 772) 226”.

Therefore, where the provisions of the Constitution conflict with the provisions of Acts or Bills passed by the National Assembly and State Houses of Assembly, the Constitution prevails. See also the cases of OLAGBENRO & ORS v OLAYIWOLA & ORS (2014) LPELR-22597(CA); A-G ABIA STATE v A-G. FEDERATION (2006) 16 NWLR (Pt. 1005) page 265 at Pages 290 and 291; AINABEBHOLO v EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD. & ANR. (2007) 2 NWLR (PART 1017) page 33 at page 50 paragraph G and P, 151 paragraphs C-D.

It is clear that the ruling of the Senate on electronic transmission is unconstitutional, null, void, of no effect, and is dead on arrival. Therefore, while the Electoral Act (Amendment) Bill, 2021 may be constitutional and valid, the amendment made to Clause 52(3) which subjects the national coverage to be adjudged to be adequate and secure by the NCC and approved by the National Assembly before INEC can transmit votes electronically, is null and void to the extent of its inconsistency with the 1999 Constitution.

It must also be stated here that, the Constitution reserves the right to expressly make provisions, and such provisions are interpreted literally. An Act, Bill or even the courts cannot add words to the Constitution, nor subtract from it. As a result, the golden latin maxim of expression unius est exclusion alterius – the explicit mention of one thing is the exclusion of another – applies to the Constitution. The Constitution expressly provides for INEC to supervise and conduct all elections, but did not provide for INEC to be supervised or subject to the direction of anybody, arm of government or agency. See the cases of PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS v MIGFO (NIG) LTD & ANOR (2012) LPELR-9725(SC); EHUWA v ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR-1056(SC); and, WEST AFRICAN UTILITIES METERING & SERVICES LTD v AKWA IBOM PROPERTY AND INVESTMENTS CO. LTD (2019) LPELR-47089(CA). Therefore, the Senate’s decision to subject to it INEC’s constitutional power to conduct elections via electronic transmission of votes (if INEC so wishes) is patently null and void, unconstitutional, unlawful, dead on arrival, and of no effect whatsoever and howsoever.
The Way Forward

Upon the conclusion of the open voting session at the Senate on Thursday, 15th July, 2021, the Senate President, Ahmed Ibrahim Lawan, stated that:

“there is no victor, no vanquished in this affair…we want an electronic transmission system for our electoral process, however, we want to ensure that no Nigerian is disenfranchised in this process, and time will definitely come when all parts of Nigeria will have coverage that we all need to deploy our technology to ensure electronic transmission of election results. This has come to settle the issue of what INEC can do, and what INEC cannot. We have given INEC an electoral Act amended, to enhance its performance”.

This statement of Ahmed Lawan can be tackled from three perspectives. First, there is clearly those “vanquished” by their decision – the entire citizens of Nigeria. The citizens of Nigeria have once again been subjected to the horrors, chaos and dastardly acts of election rigging, ballot box snatching, disruption of polling units, fightings, maimings and killings in upcoming elections. The Rule of Law that provides that no one, including the Executive, Legislature and the Judiciary, should act ultra vires (above the law) has suffered heavily. The future of peaceful, free, fair and secure elections has also taken a dive for disaster. So, yes, there is “the vanquished in this affair”.

Second, INEC has come out to state that the claims that Nigeria does not have enough network coverage to guarantee the electronic transmission of election results, is false. INEC maintains that all network providers in Nigeria have assured them of 100% coverage for electronic transmission of results. To this effect, INEC’s Director of Publicity and Voter Education, stated that: “In January 2018, INEC approached NCC that it wants a technological-driven Commission, and both have been working closely to deliver free, fair and credible elections in our country for the benefit of our citizens. They are also aware that two network providers, MTN and Airtel, have assisted JAMB conduct their examinations across Nigeria.” In the same way, these network providers, alongside other network providers in Nigeria, can assist INEC to ensure 100% network coverage for the electronic transmission of election results, as assured. In any event, where the network coverage in Nigeria is not 100%, what stops the Senate from ordering the NCC to ensure that the network coverage be guaranteed before 2023? Why become penny wise, and pound foolish? Why not thrust Nigeria into the technological advancement that a developing country like Nigeria lacks? Questions, questions, questions.

Lastly, the Senate cannot settle what INEC can and cannot do. INEC is an independent body, as guaranteed by the Constitution. Although the Senate can amend the Electoral Act of 2010 and make subsequent provisions affecting INEC, it CANNOT make provisions which encroach on INEC’s independence. Therefore, their decision that the national network coverage is adjudged to be adequate and secured by NCC and approved by the National Assembly (and any other future decisions that affects INEC’s independence), is contrary to the provisions of the 1999 Constitution and is null and void.

Conclusion

Simple. Let INEC be. Let INEC supervise and conduct elections in Nigeria, however it sees it fit. If INEC makes a turnaround and decides that electronic transmission of election results is not practicable, then that is within their purview. If they maintain however, such transmission is feasible, then it is also within their supervisory functions. INEC should not be intimidated by the Electoral Act (Amendment) Bill, 2021. If same is made into law, they can go to the Nigeria courts and seek a declaration of its consistency with the 1999 Constitution. INEC should continue to be bold, brave and courageous in granting free, fair and credible elections in Nigeria.

To conclude, I totally agree with the statement of Comrade Paul Ikechukwu Njoku that:
“The Ahmed Lawan-led 9th clueless and rubber stamp Senate, has on Thursday, July 15, 2021, dubiously adopted a legislative banditry which obviously castrated the absolute and operational independence of our electoral umpire, INEC, (in contravention of Section 78 of the 1999 constitution) by voting to allow the National Communications Commission (NCC) and the National Assembly to specifically downplay and technically usurp the philosophy of the usage of electronic transmission of results in our elections, devoid of the absolutism of INEC and what was proposed and campaigned in the Electoral Act Amendment Bill. We say No to election rigging. We say NO to legislative banditry against our electoral process. Power belongs to the people”. (Concluded).

Serious and Trivial
There are two sides to every coin. Life itself contains not only the good, but also the bad and the ugly. Let us now explore this.

“Sometimes change will not be given to you; you must ask for it” – JM.

THOUGHT FOR THE WEEK
“There are three critical ingredients to democratic renewal and progressive change: good public policy, grassroots organising and electoral politics”. (Paul Wellstone)