The Nigerian Judiciary and Electoral Technology

Elections in Nigeria, have always posed major challenges in the polity. Efforts by the Independent National Electoral Commission (INEC) to modernise and deploy technology to resolve these seemingly intractable challenges, haven’t yielded much results. Former INEC National Commissioner, Festus Okoye examines some of the technological innovations that INEC has introduced, and the attitude of the Apex Court towards them. He also recommends the intensification of voter education on the specific roles that the technological devices play in the electoral process, in order to foster greater public confidence in the integrity of elections

Introduction

T he Judiciary has played and continues to play a critical and fundamental role, in the technological innovations introduced by the electoral management body in Nigeria. It has played and continues to play a guardianship role in the Independent National Electoral Commission’s technological innovations, pointing the way forward to greater use of technology,  and, at other times, the gaps, the pitfalls, and the legal imperatives involved in technology development, application, and deployment. 

INEC and Technology 

On the other hand, the electoral management body in Nigeria has been deploying technology in the electoral process, based on its understanding of societal and technological changes and movements. It has gradually infused technology into the electoral process mostly in voter registration, accreditation, candidate nomination, observer and media accreditation, result upload, and verification of results. 

Before the gradual infusion of technology in the electoral process, candidate nomination, voter registration, and accreditation processes remained manual or analogue, and this created a lot of challenges leading to irregularities and hotly disputed elections. This led to strident calls for changes in the legal framework and the use of technology, to obviate pernicious human interference in the electoral process. 

The electoral management body decided that technology would play a major role in producing free, fair, and credible elections, and started to develop and infuse technology into the electoral process. The gradual and graduated infusion of technology in the electoral process, resulted in using small bye-elections to test-run innovations before rolling them out on a large scale. Some new technological innovations were captured in its Regulations and Guidelines, and sometimes in the Electoral Act.  

Courts and the Election Petitions Tribunals have, at various times, been called upon to determine whether the technological innovations deployed by the electoral management body are consistent with the law and or captured in the electoral legal framework. The Courts have been called upon, to determine the limits and extent of the application of technological innovations in the electoral process. 

Even though the courts and the tribunals have been very supportive of the technological innovations of the electoral management body and have advocated and continue to advocate the robust use of technology in the electoral process, there still exists a cloud of uncertainty and misinformation on the role and stand of the courts regarding the use and application of technology in the electoral process.  Hence, some Nigerians feel that the Courts, especially the Election Petitions Courts and Tribunals, are against technology in the electoral process. Is this a question of public perception coloured by partisan political considerations, or the Lawyers misreading and misjudging the import and implications of some technological innovations? Is the misunderstanding a function of the nature of election petitions? It is important to examine some of the technological innovations of the electoral management body and determine the attitude, disposition, and position of the Apex Court towards them. 

The Courts and the Smart Card Reader (SCR)

The electoral management body, introduced the Smart Card Reader for the 2015 general election. According to Professor Mahmood Yakubu, Chairman of the Independent National Electoral Commission(INEC), the Smart Card Reader (SCR) was introduced to do several things, namely, to verify that the Permanent Voters Card (PVC) provided by the voter during voting is genuine, to authenticate that the holder of the card is the legitimate owner and finally, to ensure that only voters who were accredited to vote voted. Where is the source of the confusion and controversy surrounding the introduction and application of the SCR? What accounts for the confusion? Is the confusion a product of insufficient knowledge of the SCR, or plain mischief to discredit the electoral process? 

The Supreme Court intervened in several cases on the place of the Smart Card Reader in the electoral process. In the case of Shinkafi v Yari (2016) 7 N.W.L.R. Part 1511, part of the issues submitted to the Court for resolution revolved around proving over-voting and substantial non-compliance. The Court stated that it is trite law that, for a petitioner to prove over-voting, he must tender the voters’ register, and the Statement of Result in the appropriate forms, which would show the number of registered accredited voters and the number of actual votes, relate each of the documents to the specific area of his case in respect of which the documents are tendered, and show that the figure representing the over-voting, if removed, would result in victory for the petitioner. 

However, Counsel to Shinkafi opined that, with the introduction of the Smart Card Reader Machines, it would no longer be necessary to tender the voters’ register and other steps set out earlier in proving over-voting in the electoral process. 

Hon. Justice Okoro, J.S.C, delivering the lead judgement stated thus:

“My understanding of the function of the Card Reader Machine, is to authenticate the owner of a voter’s card and to prevent multi-voting by a voter. I am not aware that the Card Reader Machine has replaced the voter’s register, or taken the place of statement of result in appropriate forms”.

The issue of the place and relevance of the Smart Card Reader surfaced again, in the case of Okereke v Umahi & ors (2016) LPELR-40035(SC) (Pp. 36-38 Paragraph C). The Appellants in the case contended that, the “use of the Electronic Card Reader Machine for accreditation of voters was provided for in the Approved Guidelines and Regulations for the conduct of the 2015 General elections, citing paragraph 13 of the Approved Guidelines and Regulations”.

The Court found that:

True, indeed, the Card Reader Machine traces its paternity to the above Guidelines and Regulations. Regrettably, its probative pedestal in the vocabulary of electoral jurisprudence has generated conflicting interpretations from their Lordships of the different Divisions of the Court of Appeal: divergent interpretations I have, judicially, noticed. However, with the intervention of this Court, in its recent decision in Shinkafi v Yari (supra), it is hoped that practitioners and all other Courts will begin to appreciate the position of the said Card Reader Machine, and the Reports generated therefrom, in election litigation. 

The issue of the place and relevance of the SCR surfaced again in Nyesom Wike v Peterside (2016)7 NWLR (Part 1512)/ LPELR-40036(SC) (Pp. 60-62 Paragraph D). However, it was Hon. Justice Mahmud Mohammed, J.S.C.:104-105, who suggested that the critical stakeholders should take steps to recommend to the National Assembly, further amendment to the Electoral Act 2010 (as amended) by incorporating in the Act, the use of the Smart Card Reader Machine in future elections.

The Supreme Court established the fact that to prove over-voting, a petitioner must go back to the basics and tender the voters’ register, and the Statement of Result in the appropriate forms, which would show the number of registered accredited voters and the number of actual votes, relate each of the documents to the specific area of his case in respect of which the documents are tendered, and show that the figure representing the over-voting, if removed, would result in victory for the petitioner. The Court established that the SCR is a product of the Guidelines and Manual of the Electoral Commission, and that the Commission made the Guidelines and Manual under the powers derived from the Electoral Act. It underscored that only the National Assembly can change the legal position of the SCR in the electoral process. It can be seen that, rather than ordain an analogue system for voter accreditation, the Supreme Court favoured the use of technology for voter accreditation, but only suggested that the law must be amended to give the SCR its proper place in the accreditation ladder. 

The Birth of the Bimodal Voter Accreditation System (BVAS)

The electoral management body took up the challenge, and the National Assembly, through its Joint National Assembly Committee on Electoral Matters, obliged and started entrenching the SCR in the Electoral Act. Before this period, the electoral management body retired the SCR and introduced the Bimodal Voter Accreditation System (BVAS). The electoral management body determined the need, for a multi-functional system that performs multiple functions simultaneously. 

For voter accreditation, the electoral management body added Facial Technology, pioneered in the 1960s, and can record as much as a 99.9% success rate. With bi-modal authentication, no person can come to vote more than once, as the face of the person would have been captured during authentication; this further ensures one-person-one-vote.

On 25th January, 2022, both Houses of the National Assembly passed an Act to repeal the Electoral Act, No. 6, 2010, and enact the Electoral Act, 2022 to regulate the conduct of Federal, State, and Area councils in the Federal Capital Territory elections; and for related matters. On 25th February, 2022, the then President of the Federal Republic of Nigeria, Muhammadu Buhari, signed it into Law as the Electoral Act, 2022. 

Section 47(1) of the Electoral Act 2022 provides that a person intending to vote in an election, shall present himself with his voter’s card to a Presiding officer for accreditation at the polling unit in the constituency in which his name is registered, while Section 47(2) provides that to vote, the presiding officer shall use a smart card reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission. 

The National Assembly wrote into the law the use of the Smart Card Reader for voter accreditation, and qualified the provision and gave the electoral management body the discretion to use any other technological device for voter accreditation. Being the law, the electoral management body conducted the Governorship election in Osun and Edo State with the BVAS.  It also conducted the 2023 general election with the BVAS.

The Judiciary and the BVAS

With the root of the BVAS firmly entrenched in the Electoral Act 2022, the Judiciary was called upon once again to determine the place of the BVAS in the electoral process. However, the controversy assumed a different dimension, and in the case of Oyetola v INEC (2023)11 N.W.L.R. Part 1894, part of the case revolved around the evidence required to prove non-accreditation, improper accreditation, and over-voting under the Electoral Act, 2022.  

The Court held that: 

“The INEC database or National Electronic Register of Election Results, is not relevant evidence in the determination of whether there was non-accreditation or over-voting or not in an election in a polling unit, and cannot be relied on to prove over-voting”. 

The case of Oyetola v INEC (Supra) re-established the fact that the evidence required to prove non-accreditation, improper accreditation, and over-voting under the Electoral Act 2022 is the Bimodal Voter Accreditation System (BVAS), the Register of Voters and the polling unit result in INEC Form EC8A. The case also established that the BVAS report or the back-end report is not useful or relevant to prove non-accreditation, improper accreditation, and over-voting. It established that the INEC database or back-end server is not part of the accreditation process or record of accredited voters, but a post-election record created by Section 62 of the Electoral Act 2022, and named therein as the National Electronic Register of Election Results to keep reliable and verifiable records of past election results polling unit by polling unit. 

INEC, Result Upload and Electronic Transmission of Results

In the 2019 general election and the petition filed thereafter by the candidate of the People’s Democratic Party, Atiku Abubakar, against the candidate of the All Progressives Congress, Muhammadu Buhari, the question was whether the Independent National Electoral Commission had a server into which results were electronically collated and transmitted. Atiku Abubakar and the People’s Democratic Party alleged that according to the figures in the INECs server from the results of elections covering 35 States and the FCT, Atiku Abubakar scored 18, 356,732 valid votes against the scores of Muhammadu Buhari of 16, 356,732 votes with a margin of 1, 615,302 votes. Muhammadu Buhari stated that he won the election with 14 191,847 votes against Atiku Abubakar, which stood at 11 262,978, with a gap of 3 818 869 votes. On the other hand, INEC stated that it did not transmit the result of the Presidential Election held on 23rd February, 2019 into any server via Smart Card Reader as there is no such provision in the Electoral Act, 2010, and that the election results were manually collated and declared at the various collation centres. 

The Supreme Court found and held that the evidence of PW59 concerning the server, on which all other evidence confluence, crashed and crumbled when he revealed that the website www.factsdontlieng.com has no ascertainable domain, anonymous and does not have the features of a regular and authentic website. 

Nevertheless, the Hon. Justice Abba Aji JSC stated thus:

“I am fully in support of the fact that electronic voting or electronic transmission of election results is, and ought to be part and parcel of our voting system, and the means of proving same. Documents produced by computers are an increasingly common feature of all businesses and spheres of life, and more and more people are becoming familiar with their uses and operations. Computers vary immensely in their complexity, and in the operations they perform”. 

Again, on 16th July, 2022, INEC conducted an election for the Governorship of Osun State. The Commission declared Adeleke Ademola Jackson Nurudeen, candidate of the People’s Democratic Party (PDP), as having won the election. Adegboyega Isiaka Oyetola, candidate of the All Progressives Congress (APC), challenged the elections and the return by the Election Petitions Tribunal.  The case dwelt extensively on the electronic transmission of results, the role and reliance on the INEC Result Viewing Portal and its relationship to the Collation System. The Court found and held that:

“As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process, and play particular roles in that process. The Collation System is made up of the centres, where results are collated at various stages of the election. So, the polling unit results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result, as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal, is to give the public at large the opportunity to view the polling unit results on election day”. 

In light of the Supreme Court decision in the case of Abubakar v. I.N.E.C (2020) 12 N.W.L.R Part 1737 and Oyetola v. I.N.E.C (Supra), it is important to critically study and analyse the controversy surrounding result upload, or the transmission of results during the 2023 general election. It is not in doubt from the analysed authorities, that the Supreme Court of Nigeria as an institution and the various Justices, support the use of technology in the electoral process. Most of them, through their judgements, urged an amendment of the legal framework to domesticate technology in the Electoral Act, and introduce electronic voting machines in the electoral process in Nigeria. Why has the controversy on the place of technology in the electoral process, persisted? 

As pointed out, on 25th January, 2022, both Houses of the National Assembly passed an Act to repeal the Electoral Act, No. 6, 2010, and enact the Electoral Act, 2022. Section 41(1) of the Act provides that the Commission shall provide suitable boxes, electronic voting machines, or any other voting device for the conduct of elections. Subsection 2 also provides that the forms to be used for the conduct of elections to the offices mentioned in the Act, shall be determined by the Commission. The National Assembly also made elaborate provisions on counting of votes, forms, post-election procedure, and collation of results. 

The 2023 general election, considered the issue of electronic transmission of election results. The candidate of the People’s Democratic Party (PDP), Atiku Abubakar, contested the 2023 Presidential Election, and INEC declared Tinubu Bola Ahmed of the All Progressives Congress (APC) the winner of the election and returned him elected.  Atiku Abubakar and the People’s Democratic Party filed a petition before the Presidential Election Tribunal. The Tribunal heard the case, and dismissed the petition. Atiku Abubakar and the People’s Democratic Party, appealed to the Supreme Court. Part of the issues the Apex Court considered, was whether the lower Court was right in refusing to hold that the failure of INEC to electronically transmit results from polling units nationwide for the collation of results of elections introduced by the Electoral Act 2022 and specified in the Regulations and Guidelines for the conduct of elections 2022 and the Manual for Election Officials 2023, does not amount to non-compliance which substantially affected the outcome of the election. In his contribution to the judgement, Hon. Justice Tijjani Abubakar, JSC (Pp. 365-372, Paras. D-A) opined that: 

“There is certainly no doubt the introduction of electronic transmission of election results, marks a pivotal advancement in the electoral processes of many nations globally. The adoption of electronic transmission systems represents a response to the imperatives of modernity and technology, seeking to address various challenges that have historically plagued manual transmission of election results, such as errors, delays, and susceptibility to manipulation, and possibly address the notorious issue of ballot box snatching. This introduction reflects a broader global trend of harnessing technology to improve governance, accountability, and public trust in electoral outcomes”. 

The Supreme Court made it clear that, “The INEC Result Viewing Portal (IReV) is not a collation system. There is a difference between a collation system and the IReV portal, though both are part of the election process. Whereas, the collation system is made up of centres where results are collated at various stages of the election, the IReV Portal is to allow the public to view the polling unit results on the election day”.

Conclusion 

The Nigerian Supreme Court, as the Guardian of the Constitution, supports the introduction and use of technology in the electoral process. They advocated that the Smart Card Reader/BVAS should be bowdlerised and incorporated into the Electoral Act, rather than making it part of the Regulations and Guidelines of the electoral management body. They have advocated and continue to urge greater use of technology in the electoral process, “since modernity and technology stare us in the face, and we cannot turn back the hand of time”.

While agreeing with the Supreme Court on the greater use of technology in the electoral process, Nigerians must address four distinct challenges. The National Assembly must amend the Constitution or the Electoral Act to bring about the desired changes in the Electoral Act, to make the BVAS the dominant mode of proving over-voting, and to make Electronic Voting Machines and electronic transmission of results mandatory. 

Secondly, technology is evolving, and sometimes it is not easy to keep pace with technological evolution. This technological evolution, must also be aligned with the technological and infrastructural development of the country. Fundamentally, the human element in the deployment of technology, is at the root of the electoral problem in Nigeria. The political elite must realign with democracy, and imbibe the democratic spirit that places the Nigerian people as the sovereign and determinant of electoral choices and preferences. 

The electoral management body must intensify civic and voter education, on the specific roles and functions of technological devices deployed in the electoral process. Some Nigerians see the BVAS as a machine for electronic voting, and some see the IReV as a device for mandatory transmission of election results. When the Supreme Court rules otherwise, there is the tendency to see the Court as siding with those who bring the electoral process to disrepute ,and may undermine public trust in the Judiciary and the electoral process. A concerted effort in civic education will not only clarify these technologies’ purposes, but also foster greater confidence in the integrity of elections, ensuring that citizens view the Judiciary as a protector of democratic values, rather than as a barrier to electoral reform.

Festus Okoye, Legal Practitioner; former INEC National Commissioner