By Law, INEC Has No Discretion On Whether To Transmit Election Results Direct From The Polling Unit; Transmission From The Polling Units is Mandatory — See the breakdown!

By Sylvester Udemezue

The Law Says INEC Must Transmit/Transfer Results Direct From The Polling Units; But Gives INEC The Discretion To Determine The MANNER Of Transmission/transfer

When you read section 64(4)&(8) , you’d completely agree that the word “transfer” as used in section 60(5) means “transmitted directly from the polling units” in a manner determined by INEC pursuant to section 60(5).

There is a huge difference between WHETHER to transmit/transfer and HOW to transfer/transmit. The law insists that INEC must transfer/transmit the results DIRECT from the polling but in MANNER chosen by INEC. Section 60(5) directs that “The presiding officer shall transfer the result including the total number of accredited voters and the results of the ballot in a manner prescribed by the commission”. INEC in the exercise of this discretion on MANNER OF TRANSMISSION/ TRANSFER, chose (1) transmission of photo or Form EC8A (2) after which all election materials, including the hardcopy of the Form EC8A, are then taken by hand to the Collation centre. Section 64 (4)-(8) of the Electoral Act 2022 provides and envisages that electronically transmitted results must be in the IReV/ portal BEFORE the Collation Officer starts his work. Read the section. The words are very clear.

Sorry for the repetition, the Electoral Act 2022 makes itself very clear about the indispensability (mandatoriness) of electronically transmitting the polling-unit-level result immediately after voting FROM THE POLLING UNIT on election day.
Besides, one FHC case in a judgement by my Lord, Nwite, J had said it’s for INEC to determine the manner of Collation. INEC to determine the manner of transfer but not whether to transfer.

Thus INEC is to determine “MANNER” means () “HOW” transmission/transfer to the IReV would be done, and not () “WHETHER” transmission to the iReV would be done.

The Act has answered in the POSITIVE, the question WHETHER transmission from the polling unit must be done, but left to INEC’s discretion the question HOW the e-transmission to the iReV should be done:

QUESTIONS ARISING:

A). Did INEC determine the manner (the “HOW”) of Collation? Yes, by making the Regulations and Guidelines for Conduct of Elections which was signed into law on 24 May 2022.
In the Regulations Guidelines, INEC adopted DUAL COLLATION MODE:
(1).  E-transmission of election result sheet (Form EC8A); and
(2). Manual collection of results

B). Did INEC make electronic transmission mandatory in the Regulations/Guidelines? Yes.

C). Can INEC amend the Guidelines? Yes. See Clause 106 of the Regulations/Guidelines: “These Regulations and Guidelines are made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act 2022. The Commission may from time to time make additional regulations and guidelines for m purposes of conducting elections in the form of amendments to these Regulations and Guidelines, supplements to them or as Schedules all of which shall form part and parcel of these Regulations and Guidelines”

D). Did INEC amend the Regulations/ Guidelines before 25 February 2023?
No!!!!

E). Is INEC bound by all provisions of the Regulations/ Guidelines?
Analogy:
The Constitution gives the CJ Of The High Court powers to make Rules for practice and procedure at the State High Court. The CJ makes Rules. The question is, is the CJN’s court bound to obey the rules made by the CJ? Can the CJ sitting as a court of law, alter/change the Rules of Court in the middle of court proceedings, without going through the procedure for amendment?

E). Did INEC on countless occasions expressly tell Nigerians that electronic transmission from the polling unit is mandatory and that it (INEC) would comply with it? Sure. The occasions are countless: I shall list out all shortly. The promise was too humongous, and firm. Even the INEC Chairman PERSONALLY spoke on several occasions, saying that electronic transmission was mandatory and that INEC was not going back on electronic transmission.
Was there any one occasion where INEC gave any indication it would not electronically transmit election results directly from the polling units?
Nooo. On the contrary, on *22 February 2023* (three days before the presidential election in Nigeria), Speaking at a meeting with leaders of foreign election observers, the Chairman of the Independent National Electoral Commission, Prof. Mahmood Yakubu DECLARED:
“After the process is completed at the polling unit, the image of the polling unit result will be taken by the BVAS and uploaded into what we call the INEC Result Viewing Portal where citizens can see polling unit level results as the processes are completed at polling unit level”. He then assured that the BVAS would perform well on Election Day, adding “we are confident that on Saturday, the machines will work and perform optimally.”

E). In case of any conflict/inconsistency between the Regulations/ Guidelines 2022 and the Electoral Act 2022, which one should prevail? Sure, the Electoral Act, being an Act of Parliament. When the Electoral Act permitted INEC to exercise discretion, the INEC has an obligation to not deviate from the Electoral Act — INEC has no power to permit what the Act forbids or to forbid what the Act permits.

Section 64 (4)-(8) of the Electoral Act leaves no one in doubt that election results ought to have been transmitted from the polling units on the election day, to enable the collation officer to use the electronically transmitted results during collation, for verification and confirmation of the manually-collated results.

F). Does the Electoral Act envisage mandatory e-transmission of election results directly from the polling units AFTER voting, as a mandatory result collation procedure?
Absolutely yes!
See section 64 (4)-(8) of the Act.

Hence electronic transmission is MANDATORY — INEC has no choice on this one because electronically transmitted results are MANDATORY for verification and confirmation of manually collated results during collation). Neither INEC nor the Regulations and Guidelines made by INEC have any authority to permit the non-transmission of results from the polling units. The ACT has thus answered the *POSITIVE* question WHETHER* the results must be transmitted to the iReV on election day. See section 64 (4)-(8). The only thing the Act left open to be decided by INEC is HOW the results would be transmitted to the iReV from the polling unit
.

Is it the raw election results/votes that would be e-transmitted in real-time directly from the polling units; or
Is it the final recorded results as announced at the polling units which are contained in the results sheet (Form EC8A, duly signed) that would be e-transmitted direct from the polling units?

And INEC, in the Regulations and Guidelines made a choice– chose that a photo/snapshot/picture of the duly signed results sheet (Form EC8A) must be e-transmitted to the iReV immediately after the conclusion of voting at the polling unit. And INEC explained why it chose this option:

“The BVAS confirms that the cards issued by the commission and presented by the voter are genuine and the voter is authenticated using the fingerprint and where it failed, the facial. Where both fail, the voter can’t vote. That is a matter of law. *After the process is completed at the polling unit, the image of the polling unit result will be taken by the BVAS and uploaded into what we call the INEC Result Viewing Portal where citizens can see polling unit-level results as the processes are completed at polling unit level. The difference between what Kenya did in 2015 and what we are doing is that we are not transmitting raw figures for collation. In fact, the law does not allow for electronic collation of results.

So, we don’t transmit raw figures because raw figures transmitted online are more susceptible to hacking while images of a document are not susceptible to hacking. Like every new technology, initially, it will present its own challenges. In the last elections in Osun and Ekiti, the BVAS performed well. But this is the first time that we are deploying the machine for national election, we conducted a mock accreditation exercise and the exercise had some issues we have addressed. So, we are confident that on Saturday, the machines will work and perform optimally.”
See:
“HOW ELECTION FIGURES WILL BE TRANSMITTED —INEC” (The Punch; 22 February 2023; <https://www.google.com/amp/s/punchng.com/how-election-figures-will-be-transmitted-inec/%3famp>).

Conclusion:
By the combined reading of the Act and the Regulations/ Guidelines, e-transmission of a snapshot/picture/photo of the duly signed Form EC8A (polling unit level result) to the iReV from the polling units on the election day, is mandatory.

INEC and some people just refused to obey the law, for fear that obeying the law might lead to an unexpected outcome.
It’s unfortunate that anyone is trying to justify the brazen atrocious subversion of the law, committed by INEC in broad daylight on 25 February 2023.
I shall now refer to the explanation by my Lord, Shuaibu , JCA of the Court of Appeal on the mandatory procedure for collation of election results under the Electoral Act 2022. In the judgment delivered on 24 March 2023 in the case of ADELEKE NURUDEEN v. OYETOLA (unreported Appeal No: CA/AK/EPT/GOV/01/2023), the Nigerian Court of Appeal affirmed that electronic transmission of election results is mandatory under the Electoral Act 2022 and that also gave a clear hint about the Provisions of Electoral Act on the *material/mandatory time for e-transmission of election results. The court held (Per Shuaibu, JCA in the lead judgment delivered on 24 March 2023, on pages 35-36 of the certified true copy of the judgement) as follows:
_”BVAS is a device used to register voters. It accredits voters before voting on election day and is used for transmitting results to the INEC viewing portal after voting. Thus it helps to scan the barcode or QR on the PVC or voter register before voting. Note that BVAS does not require internet connectivity during voting but it requires internet when transmitting results to the INEC portal. In light of the foregoing, it is correct to say that there is a dual mode of transmission of results under the extant Electoral Act, 2022.

After the close of the poll at the level of various units where the presiding officer would enter the scores of various political parties in Form EC8A (Polling Unit Result) which he signs that particular result and countersigned by party agents, the result will then be scanned and uploaded to the INEC result viewing portal for public viewing. It’s also *at that point the accreditation data that has arisen from that polling unit will also be uploaded, but the physical result, the BVAS result will also be taken to the Registration Area Collation Centre. At the Collation Centre, the Collation Officer will at this point have the benefit of seeing the original result and BVAS report *and the accreditation data as transmitted and the result sheet from the polling unit”.

Respectfully, submitted
Sylvester Udemezue.

Source: Barristerng