Appraising The Necessity Of Electronic Transmission Of Results To The Validity Of Presidential Election Under The Electoral Act, 2022- PART 1

By Godfree Matthew Esq.

ABSTRACT

The coming of the Electoral Act, 2022 was welcomed by many people because of one peculiar feature, which is the introduction of electronic transmission of results from the polling Units and other related provisions. These transmissions of results from polling units are expected to be reflected at the collation centres and declaration of the results. Many people were happy with this innovation because it is unprecedented and it was thought to be an antidote to electoral fraud. The partial success of this approach during the elections in Ekiti and Osun states gave initial hopes to Nigerians that all is well.

However, things got twisted and hopes were dashed when these results from polling units were not uploaded to the INEC’s server at the Collation Center during the Presidential election of February 25, 2022. This led to divisive opinions that impugned the integrity and credibility of INEC in the conduct of a transparent and credible election. In the course of these divergent opinions many misconceptions ensued such as ‘electronic transmission’ of results is not provided by Electoral Act, and that uploading results from polling units are not sine qua non to the validity of the Presidential Election. It is the attempt to clarify these misconceptions that gave birth to this work. This work seeks to clarify such misconceptions about our electoral laws. Thus, this work further established that the Electronic transmission of results is recognized under The Electoral Act, of 2022.

Most importantly, it has established that uploading Election Results is a prescribed procedure that needs to be complied with, and where it is not done, it can qualify as one of the grounds of the petition upon which the validity of the election can be challenged under section 133 of the Electoral Act. This work adopts the doctrinal methodology by referring to statutes, case laws, learned legal literature and other complimentary sources.

INTRODUCTION

On the 27^th of February 2023, at the Collation Center in Abuja, Senator Dino Melaye and other Party agents drew the attention of The INEC Chairman Professor Mahmoud Yakubu to the facts that the results from the Polling Units of Some States were not uploaded. The response to the INEC Chairman was not satisfactory to the expectations of Senator Dino Melaye and other party agents. Consequently, they walked out of the collation Centers. Ever since they walked out, a lot of comments were made for and against the legal validity of election transmission of results and uploading of those results in determining the validity of an election. In addressing these issues this article examines the following questions:

Is Electronic Transmission of Results recognized by the Electoral Act, 2022?,
Is Uploading of Election Results Transmitted from the Polling Unit a Condition Precedent before the Declaration of Presidential Results?, and;
Can the Validity of an Election be challenged for Not Complying with Electronic Transmission and Uploading of Election Results?

The above posers will be examined in the subsequent headings of the above posers. For ease of readability and analyses, this work will be structured into three series to be published. The first poser raised in the above paragraph shall be the first issue that will be discussed in this work.

Is Electronic Transmission of Results Recognized by The Electoral Act, 2022?

The answer to the above question can best be done by x-raying the phrase, electronic transmission. In x-raying the imports of this phrase, it is pertinent to look at the dictionary meanings of both words ‘electronic’ and ‘transmission’. The word electronic as an adjective is defined as ‘(of a device) having or operating with components such as microchips and transistors that control and direct electronic currents.’[1]In the same sequence, transmission is defined in the following words: (a) the act or process of transmitting, and (b) transference of force between machines or mechanisms, often with changes of torque and speed.[2]

Based on the above definitions, it is clear that the phrase ‘electronic transmission’ is the process of transmitting data from one machine to the other. It is a process that deals with the exchange of information between one machine and another via an electronic devices. Such exchange of information could be from hard copies to soft copies, or from soft copies to be reproduced in hard copies.

Additionally, the phrase electronic transmission is defined as:

Transfer of data or information through an authorized electronic data or information through an authorized electronic data interchange system consisting of, but not limited to, computers, modems and computer networks.[3]

Further, electronic transmission is defined as:

Any form of communication not directly involving the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by the such recipient through an automated process.[4]

From the above definitions, for a transaction to qualify as an electronic transmission, there must be a transfer of data from one authorized source to another. Such sources of transfer of electronic data could be done through the exchange of communication via computers, modems and other computer networks. It also deals with the exchange of data from one computer to another. It is from this prism that INEC assured Nigerians that they will be posting election results from the polling unit to its website and National Voter Data Register. Thus, the exchange and transmission of election results from polling units to INEC Websites as well as the uploading of results from polling Units to Collation Units is a procedure that transfer of data from one computer to another.

Again, by the above definitions, electronic transmission could mean the physical transfer of information via computers. This means that it could be a transfer of physical information in paper form that could be transmitted through computer networks which form records of transactions. And such information can be retained retrieved or reviewed by the recipient.[5] This simply means that a paper could be captured in a computer as PDF and transmitted to another computer or computer networks to be retrieved, retained and assessed by the recipients. It is for this reason that the Chairman of INEC on February 2023 directed that Results Sheets (Form EC8) of all polling Units should be captured in the BVAS and uploaded to the INEC Website.[6]

Furthermore, it is important to note that the various meanings of electronic transmission given by the dictionary are relevant under Nigerian law. This is because in Nigerian law, words defined by a dictionary have a weighty relevance in law, especially where such words were not defined by statutes or case law. This position is supported by the decision of the Supreme Court in the case of AGF v AG LAGOS State (2013) Pt 1380 where it was held that where there are neither judicial nor statutory definitions recourse should be had to dictionary meanings.

Another dictionary definition that connects the legal meaning of electoral transmission of results to the Electoral Act, 2022 is the one given by lawinsider.com dictionary.[7] It defines electronic transmission as the “delivery of information in an electronic format acceptable to the applicable recipient thereof”.[8] The reference to an ‘electronic format’ as an acceptable means of receiving information by the recipients, accords with INEC directives that results should be transmitted and uploaded to its server (as the acceptable means of receiving transmission).

What makes the reference to electronic format apt to the legal definitions of electronic transmission of results is that the Electoral Act, 2022 defines the phrase ‘electronic format’. Section 153 of the Electoral Act, 2022 is a particular section which deals with the interpretations of terms covered by the Electoral Act. One such term that relates to the electronic transmission of results under section 153 of the Electoral Act, 2022 is ‘electronic format.’ The phrase electronic format is defined in section153 of the Electoral Act, 2022 as:

The electronic version of the Register of Voters or National Electronic Register of Election Results as the case may be, created, recorded, transmitted or stored in a digital form or in other intangible forms by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means and which may be converted to or reproduced in paper documents.

Gleaning from the wording of the above provision, one can deduce references to the electronic transmission of results. A community reading of that paragraph on the electronic format in section 153 clearly reveals that electronic transmission is reflected in our electoral jurisprudence. Thus, it could be safe to conclude that the electronic transmission of results is provided for under the Electoral Act, 2022. It is of further importance to note that, it could be that it is through reference to electronic transmission under section 153 of the Electoral Act, 2022 that other sections relating to electronic transmission of results found anchorage.

Another, implied reference to the electronic transmission can be traced to the Regulations and Guidelines for the Conduct of Election, 2022 (subsequently refers to as ‘Electoral Guidelines. 2022’). The Electoral Guidelines, 2022 draw its authorship from the provision of section 160(1) of the 1999 Constitution and section 149 of the Electoral Act, 2022 which empower INEC to make regulations for the purpose of giving effect to the Electoral Act, 2022 and its administration.

It is from these provisions of the law that INEC makes express provisions for electronic transmission and uploads of results to INEC Viewing Centers in clause 38. Contrary to comments from other quarters that the Electoral Act did not provide for the Electronic transmission of results, such proponents did not appreciate the correct position of Nigerian electoral jurisprudence. This is because, by the decisions of our courts, Electoral Guidelines are consistent with the Electoral Act and the 1999 Constitution of the Federal Republic of Nigeria. See the case of: (a) FALEKE V INEC & ANOR (2016) 18 NWLR (PT.1543) 61.P.157, Paras. B-E; F., and (b) APP V INEC (2019) LPELR-48465 (CA).

Furthermore, the discussion on the existence of electronic transmission of results in our electoral jurisprudence will not be complete without reference to the dictum of ABBA AJI J.S.C. in the case of Abubakar V INEC.[9] In this case, His Lordship agrees with the existence of electronic transmission of results as an integral part of our jurisprudence when he held 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 means of proving the same.

In conclusion, from this legal literature, it is established that by the dictionary renditions, the electronic transmission of results is recognized by the law. Of specific interest is that the Electoral Act, 2022, being a specific legislation, makes reference to the electronic transmission of results in section 153. To cap it all, since the case law recognizes electronic transmission of results, it is therefore safe and firm to conclude that, electronic transmission of results is jurisprudentially, judicially and statutorily recognized under Nigerian law.

The next series of this writing will examine the question: Whether Uploading Election results transmitted from the Polling Unit a Condition Precedent for the Declaration of a Presidential Result? In this arm of the discourse, the writer will examine the systematic procedures for the electronic transmission of results under Nigerian electoral laws. Equally, the question of whether such procedures outlined by the law for the transmission of electronic results are discretionary or mandatory will be x-rayed. After, that the position of law on whether uploading election results is a condition precedent for the declaration of presidential results will be analyzed.