Fifteen Critical Questions Towards Determining Whether Results E-Transmitted Directly From Polling Units, Are Not A Mandatory Part of the Collation Process Under the Electoral Act 2022

By Sylvester Udemezue

Despite the clear provisions of sections 47, 50, 60, and especially 64 of the Electoral Act 2022, some lawyers still try to argue that the Electoral Act 2022 does not provide for mandatory electronic transmission of election results directly from the polling units immediately upon conclusion of balloting/voting and signing of the Form EC8A and before collation starts. Some have also argued that electronic transmission is not a necessary part of the collation process under the Electoral Act, 2022. Resolving these issues is necessary to determine whether electronic transmission of results directly from polling units on election day, is mandatory under the Electoral Act, 2022.

Before we even talk about the provisions of the Regulations and Guidelines for Conduct of Elections 2022, made pursuant to the Electoral Act 2022, and which is INFERIOR to the Act, and must yield to the Act in any area of inconsistency, let us look through the Electoral Act itself and ask some questions for purposes of determining the true/correct provisions of the extant law, the Electoral Act 2022. My intention in this work is not to raise an argument but rather to establish some crucial points by raising some critical questions. Respectfully, I beseech us to graciously consider or address these questions, as a sure way towards a quicker and seamless resolution of the issues arising:

1. If the election results were not required under the Electoral Act to be electronically transmitted directly from the polling units on the election day, that is, even before WARD Collation Officer begins his job (of collation), and if the E-transmitted results are not a necessary part of the Collation process under the Electoral Act, 2022, why does section 64(4) of the Electoral Act 2022* expressly require that for purposes of “VERIFICATION AND CONFIRMATION” of the manually-collated results of the election, the Collation Officer (whether at the Ward level, LGA level, State level or the Federal level) MUST compare the manually-collated results (that is, the original hardcopy of Form EC8A) with the votes or results transmitted directly from polling units? Please, which “transmitted results” is the Electoral Act 2022 talking about at that level of Collation?

Recall that collation precedes declaration and return. For the avoidance of doubts, section 64 (4) of the Electoral Act 2022 provides: “(4) A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the—(a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act ; and (b) the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act”.

2.If the results were not required under the Electoral Act to be transmitted directly from the polling units on the election day, before the Collation Officer begins his job of Collation and announcement of results, and if the E-transmitted results are not a necessary part of the collation process under the Electoral Act, 2022, why does section 64(5) of the Electoral Act 2022 EXPRESSLY DIRECT that where the manually-collated results are at variance with the votes or results transmitted directly from polling units, the Collation Officer must use the electronically transmitted version for Collation?

Section 64 (5) of the Act provides: “(5) Subject to subsection (1), a collation officer or returning officer shall use the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act and the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act to collate and announce the result of an election if a collated result at his or a lower level of collation is not correct”.

3. If the election results were not required under the Electoral Act to be electronically transmitted directly from the polling units on the election day, that is, even before the WARD Collation Officer begins his job (of Collation), and if the E-transmitted results are not a necessary part of the Collation process under the Electoral Act, 2022, why does section 64(6) of the Electoral Act 2022 expressly DIRECT that where the election/results are DISPUTED during collation, the Collation Officer (whether at the Ward level, LGA level, State level or the Federal level) must refer to the votes or results as recorded and transmitted directly from the affected polling units, among other items for the purpose of resolving the disputes?

Section 64 (6) of the Act provides: “(6) Where during collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the collation officer or returning officer shall use the following to determine the correctness of the disputed result*—(a) the original of the disputed collated result for each polling unit where the election is disputed ; (b) the smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed for the purpose of obtaining accreditation data directly from the smart card reader or technology device; (c) data of accreditation recorded and transmitted directly from each
polling unit where the election is disputed as prescribed under section 47 (2) of this Act ; and
(d) the votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed, as prescribed under section 60 (4) of this Act”.
NOTE: In section 64 (6), the Electoral Act expressly listed SEPARATELY (A) the original (hard) copy of the manually-collated results and (B). the version transmitted directly from the polling units. See section 64 (6)(a)&(d) of the Act. This means that the Act expressly envisages dual collation mode (MANUAL collation and direct electronic transmission from the polling units).

4.If the election results were not required under the Electoral Act to be electronically transmitted directly from the polling units on the election day, that is, even before Collation Officer begins his job (of collating result), and if the E-transmitted results are not a necessary part of the Collation process under the Electoral Act, 2022, why does section 64(7)&(8) direct that where the election or results are DISPUTED DURING COLLATION, the Collation Officer MUST NOT announce the election results until he has resolved the disputed results/election using the materials listed in section 64 (6) which MUST include

(1) The original hardcopy of the manually-collated results (Form EC8A, duly signed) transmitted DIRECT from the affected polling units [see s. 64(6)(a)];

(2). the smart card reader or other electronic device used for the accreditation of voters [see s. 64(6)(b)]; ;

(3). data of accreditation recorded and transmitted directly from the affected polling units [see s. 64(6)(c)]; and

(4). the votes and results of the election were recorded and transmitted directly from each polling unit (electronically transmitted version of the results) [see s. 64(6)(b)]. Section 64 (7)&(8) provides: “(7) If the disputed result under subsection (6) were otherwise found not to be correct, the collation officer or returning officer shall re-collate and announce a new result using the information in subsection (6)(a)-(d). (8) Where the dispute under subsection (6) arose at the level of collation *and the returning officer has satisfied the provision of subsection (6) (a)-(d), the returning officer shall accordingly declare the winner of the election”.

5.Respectfully, may I crave your indulgence to inquire whether you are in alignment with the fact that, nothing in sections 47, 50(2), 60(1)-(5) and or 64(4)-(8) of the Electoral Act 2022 gives INEC any discretion to make a decision whether or not to transfer/transmit election results directly from the polling units? The Act has settled that direct transmission/transfer from the polling unit is MANDATORY.

Do you agree that sections 50(2),60(5) and especially 64(4)-(8) leaves no one in doubt about this. Section 50(2): “(2)Subject to section 63 of this Act, voting at an election and TRANSMISSION of results under this Act shall be in accordance with the PROCEDURE determined by the Commission”. [Hence, the transmission must be done on election day, in addition to manual collation — taking the hardcopy of the results sheet to the collation centre — which is the usual age-long collation, but INEC is left to determine the manner/procedure/style of the TRANSMISSION]. Section 60(5) provides that “The presiding officer shall TRANSFER the results including the total number of accredited voters and the results of the ballot in a MANNER as prescribed by the Commission” [transfer from the polling units by the polling units officer is mandatory, but INEC should determine the manner of transfer. If you examine sections 50(2) and 64(4)-(8) of the Act, you would agree that

(A) the transfer talked about is electronic Transmission;

(B). The time of transfer is at the conclusion of voting/ballot, recording and signing — immediately after the procedure set out in s. 60(1)-(4) of the Act,

(C) the person to do the transfer is the Presiding Officer/Polling Unit Officer; and

(D) the transfer/transmission envisaged here is not done FROM THE INEC OFFICE, but from the polling unit, before hard copies of the election materials are moved physically to the INEC (collation) office]. I have already reproduced section 64 (4)-(8), which seals the afore-stated FOUR points. Hence, there is no conflict between sections 50(2) and 60(5) and (65(4)-(8) of the Act; they’re very consistent with one another. Accordingly, and this is what Justice Nwite of the Federal High Court said in Labour Party v. INEC when it held that __Only INEC Can Determine Mode Of Transmission”.

Thus, INEC cannot determine (a) WHETHER there should be transmission because the law already makes transmission mandatory, (b) the TIME of transmission because the law already determines the transmission is done by the Presiding Officer from the polling unit on election day. [See ss. 50(2), 60(5) and 64(4)-(8) of the Act]. I must repeat: the discretion given to INEC by the Electoral Act is to determine/choose the manner/mode of transmission. For this purpose, as seen all over the world, there are many modes of transmission of results from the polling units, including the following:

(1). There is an e-transmission of RAW results. This is the manner/mode of transmission adopted by Kenya. However, this could be manipulated if any outsider gets access to the server/IReV/Portal say by hacking;

(2) There is the real-time, on-the-go transmission of votes/voting (electronic voting). This is the manner/mode of transmission adopted by the Nigerian Bar Association (NBA). This is however susceptible to manipulation (ojoro/wayo) as we have witnessed over the years in the NBA elections; and

(3). There is a third mode, which goes thus: upon completion of voting at the polling unit, recording of the results in the Result Sheet provided by the Electoral Commission, and signing/endorsement of the Result Sheet by relevant persons (the Polling Unit Officer, Party agents and the Police), an electronic device (BVAS card reader or whatever) would be used to scan/snap the original result sheet and then *from the polling unit (I mean, before leaving the polling unit)* and to transfer/upload/transmit/send the scan copy/picture/photo (of the Result sheet, as duly signed) to the INEC server, portal or IReV.

Professor Mahmood Yakubu (INEC Chairman) on 22 February 2023 explained to this mode/model when he declared to the international observers, in Abuja, thus: “That is a matter of law. After the [voting] 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”. 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>].

Do you agree that by this declaration, INEC confirmed my position, that it is not for INEC to determine WHETHER OR NOT TO TRANSMIT; INEC only has the discretion to determine the model/mode/manner of the transmission of results from the polling units. Recall that INEC has the duty to ENFORCE the Electoral Act. The above declaration shows INEC understood the provisions of section 47,50(2),60(5) and 64(4)-(8) of the Act perfectly well, before the elections. I shall reproduce other public declarations by INEC, before the election.

I have listed at least three models/modes/manner of transmission of results from the polling units. So, the extant position is that *INEC in the exercise of the discretion given to it by sections 50(2), 60(5) and 64(4)-(8) of the Electoral Act 2022, *chose the third mode/model/manner/style* of transmission.

INEC had expressed its choice/discretion in Clauses 38 and 48 (a) of the Regulations and Guidelines for Conduct of Elections made/signed into law by the INEC Chairman on 24 May 2022, and (although INEC has the power to amend the Regulation/Guidelines, by virtue of Clause 106 of the Regulations and Guidelines) the Regulations and Guidelines has remained not-amended even till today.

 Permit me to observe further that the transmission style/procedure/mode/manner chosen by INEC is the best and the most secure anywhere in the world, because once the signed Polling Unit Result Sheet, has been scanned/snapped and the photo sent/transferred/transmitted to the INEC server/IReV/portal, TWO THINGS BECOME IMPOSSIBLE:

(A). No one can manipulate or alter the scanned copy already uploaded to the INEC IReV/portal/server (website). Before you can change the scan copy already uploaded on the IReV, you must first get the signatures of

(1) polling unit officer,

(2) all the Party agents who signed it; and (3). The police officer who signed at the polling unit. Do not forget that all these people have left the polling unit and gone to their various destinations. On 25 February 2023, each polling unit had 18 different party agents, plus the polling unit officer and the police officer (a total of 20 persons) signing the Result Sheet (which INEC calls Form EC8A). How can anyone be able to manipulate the scanned copy even if there’s hacking? Happily, in a Press Release titled, “INEC’S PRESS RELEASE of 26 February 2023, titled “CHALLENGES EXPERIENCED WITH THE INEC RESULTS VIEWING PORTAL (IReV)”,* INEC publicly said on 26 February 2023 that the INEC server/portal was not hacked or sabotaged. Hear INEC statement while rendering apologies for its “failure” to transmit results DIRECT from the polling units on 25 February 2023:

“The Commission is aware of challenges with the INEC Results Viewing Portal (IReV)…. The Commission regrets this setback, especially because of the importance of IReV in our results management process. The problem is totally due to technical hitches related to scaling up the IReV from a platform for managing off-season State elections, to one for managing nationwide general elections.

It is indeed not unusual for glitches to occur and be corrected in such situations. Consequently, the Commission wishes to assure Nigerians that the challenges are not due to any intrusion or sabotage of our systems and that the IReV remains well-secured. Our technical team is working assiduously to solve all the outstanding problems…. We take full responsibility for the problems and regret the distress that they have caused the candidates, political parties and the electorate”.
[See: INEC’S PRESS RELEASE of 26 February 2023, titled “CHALLENGES EXPERIENCED WITH THE INEC RESULTS VIEWING PORTAL (IReV)”
[See: “INEC speaks on slow update on IReV election result portal, allays fears”;_ 26 February 2023; https://www.premiumtimesng.com/news/headlines/584674-inec-speaks-on-slow-update-on-irev-election-result-portal-allays-fears.html].

6. A very important question: why was INEC on 26 February 2023 (just a date after the presidential elections) issuing press releases to explain and APOLOGIZE to Nigerians, and to take full responsibility for the failure to upload results on election day, if electronic transmission directly from the polling units is not mandatory? 

Una no go kill person for this country. Some lawyers are part of Nigeria’s problems. Please, see: “#NigeriaElections2023: INEC Speaks On Why Result Viewing Portal (IReV) Is Not Working, Blames Technical Hitches For Challenges” [ThenigeriaLawyer; 26 February 2023].

7. Having gone through the above-cited and reproduced provisions of the Electoral Act 2022, do you now agree that it is not correct to argue that “the Electoral Act 2022 DOES NOT SAY ANYTHING ABOUT ELECTRONIC TRANSMISSION OF RESULTS” or that the electronically transmitted results are not a necessary part of the Collation process?*

8. Do you agree that the Electoral Act 2022 does not just stop at providing for Electronic Transmission of results; the Act EXPRESSLY provides for (to quote the Act verbatim) “the votes and results of the election recorded and TRANSMITTED DIRECTLY from polling units” See section 64 (4)-(8). Thus, the Electoral Act 2022 MAKES IT MANDATORY that, upon conclusion of voting at the polling units and filling/recording and signing of Form EC8A by relevant persons, the election results (i). Must be electronically transmitted (ii). DIRECTLY from the polling units (iii). On election day (iv) before the Polling Unit Officer and his team would take the hardcopy of Form EC8A to the Collation centre? Dual collation procedure! Do you not agree?

9. Are you not aware that Section 64 (6)(a) refers to a hard copy of the results as collated while Section 64 (6)(d) talks about the electronically transmitted version of the results? Even sections 64 (4)&(5) direct that the manual version (original hard copy of the results) must be compared with the results transmitted DIRECTLY FROM THE POLLING UNITS. Hence the Act clearly envisages a DUAL collation mode.

That is why INEC assured on 26 February 2023, after it had failed to comply with the law, that “These results cannot be tampered with and any discrepancy between THEM and the PHYSICAL RESULTS used in collation will be thoroughly investigated and remediated, in line with Section 65 of the Electoral Act 2022″. Please, see: “#NigeriaElections2023: INEC Speaks On Why Result Viewing Portal (IReV) Is Not Working, Blames Technical Hitches For Challenges”. Do you agree that the “them” mentioned by INEC refers to the results e-transmitted directly from polling units to the iReV/portal/server on election day, as separate from the “physical results”?

10. Okay, even if you don’t agree with all these, do you agree that the Court of Appeal has on 24 March 2023 EXPRESSLY ACKNOWLEDGED, AGREED, CONFIRMED AND AFFIRMED that the Electoral Act 2022 expressly and clearly envisages a MANDATORY DUAL COLLATION MODE

[(a) manual collation AND (b) electronic transmission directly from the polling units, of a picture of Form EC8A as duly signed) in the 24 March 2023 Court of Appeal judgment in Adeleke Nurudeen v Oyetola (cited below), where the Court of Appeal took time in the lead judgment delivered on 24 March 2023 to explain (a) that there is a mandatory dual collation procedure under the Act and

(b) THE MATERIAL TIME for e-transmission of the election results under the Act? According to the Court of Appeal (quoting the Court verbatim), “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) in which he signs that particular result and counter-signed by party agents, the result will then be scanned and uploaded to the INEC result viewing portal for public viewing”.
Permit me to reproduce what His Lordship, Hon Justice Shuaibu, JCA said on pages 35-36 of the CTC of the judgement in the case (ADELEKE NURUDEEN v. OYETOLA (unreported Appeal No: CA/AK/EPT/GOV/01/2023)): His Lordship declared thus:

“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) in which he signs that particular result and counter-signed 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”

11.Do you agree that INEC made the following public statements before 25 February 2023:

1). In a Press Release titled “ELECTRONIC TRANSMISSION & COLLATION OF RESULTS” which comes under the general heading “2023 General Election Updates” and published by INEC on its own website (<https://main.inecnigeria.org/?page_id=11312), the INEC wrote as follows: _”One of the most progressive provisions of the Electoral Act 2022 is the provision for result management from the Polling Units (PUs) to various levels of collation and declaration of winners. The process, as provided by the Act, is basically still manual…. However, *the law also provides for the electronic transmission of results. In the event of a dispute arising in the course of collation, the electronically-transmitted result shall be used to resolve it.

These are clearly provided for in Sec. 60 of the Act which deals with the counting of votes, their entry into specific forms endorsed by INEC officials and candidates/polling agents and their transfer to collation centres. Furthermore, Sec. 64 (4), (5) and (6) of the Act provides for the recording and transmission of accreditation data and election results directly from the PUs using the Smart Card Reader or any other electronic device determined by the Commission… the law provides for a dual mode.

The FIRST MODE is the 4-step manual procedure at PUs involving: (1) Counting of ballot papers; (2) Recording of results on a specific form (EC8A); (3). Endorsement of EC8A by candidates/polling agents; and (4) physical delivery to collation centres. The second mode entails a 2-step electronic procedure from PUs involving: (a) Recording of accreditation data; and (b) Direct transmission of results… After an election and the completion of the results management procedure at the PU, The Presiding Officer should take the following action (i). Transmit a clear image of EC8A for purposes of collation. This goes to the IReV; and (ii). Deliver by hand, the hard copy of EC8A and the BVAS to the Registration Area (RA) Collation Officer.

2. The Collation Officer, with the support of the RATECH, should have access to IReV. The result held temporarily as part of IReV and the number of accredited voters in the BVAs should be compared with what is recorded in the manually-delivered result to effect collation (Sec. 64[4] and [5] of the Electoral Act 2022). The IReV result or the scanned image of the EC8A from the BVAS should also be used in case any issue arises during collation and there is a need to resolve any dispute regarding the results (Sec. 64[6]), following the procedure provided in the clause 93(a) of the Commission’s Regulations and Guidelines for elections, 2022.

3. The same scenario should be implemented from one level of collation to a higher one until the result is declared and a return is made 4. This approach integrates the IReV images into the collation process to satisfy the electronic (direct) transmission of results”.

2). On February 07, 2023, on its verified Twitter handle, INEC was found to have written as follows: “The Chairman of the Commission…expressed satisfaction with the optimal performance of the BVAS in all the States of the Federation. The use of the BVAS for voter verification and authentication is a mandatory provision of section 47(2) of the Electoral Act and every registered voter must undergo the process of accreditation.

The Commission will also upload polling unit-level results (Form EC8A) and the accreditation data to the INEC Result Viewing Portal. This is also a mandatory provision of sections 50, 60, and 64 of the Electoral Act 2022. For the 2023 general elections, the Commission will recruit 707,384 Presiding Officers and Assistant Presiding Officers, about 17,685 Supervisory Presiding Officers, 9,620 Collation/Returning Officers as well as 530,538 PU Security Officials, making a total of 1,265,227” [See <https://twitter.com/inecnigeria/status/1622829482540146688?lang=en>].

3). There was an allegation in early November 2022, made publicly, that INEC was conspiring with some people to jettison the e-transmission of election results in real time. INEC had immediately come out to publicly debunk the allegation, assuring Nigerians that all results of the 25 February 2023 elections, must be e-transmitted direct from the polling units to the iReV, on the election day. See: ”2023: INEC Denies Plan To Jettison Electronic Results Transmission” The statement issued by its spokesman, Festus Okoye, on 11 November 2022, read:
“Our attention has been drawn to reports in a section of the media of alleged plans by the Commission to rig the 2023 General Election by abandoning the direct and real-time electronic upload of polling unit results to the INEC Result Viewing (IReV) portal by the Registration Area Technical Support Staff (RATECHSS).

The claim is patently false. The Commission has repeatedly reassured Nigerians that it will transmit results directly from the polling units as we witnessed in Ekiti and Osun State Governorship elections and 103 more constituencies where off-cycle Governorship/FCT Area Council elections and bye-elections were held since August 2020.

The results can still be viewed on the portal. The IReV is one of the innovations introduced by the Commission to ensure the integrity and credibility of election results in Nigeria. It is therefore inconceivable that the Commission will turn around and undermine its own innovations.” [See: <https://thewillnews.com/2023-inec-denies-plan-to-jettison-electronic-results-transmission/>]

4). On October 26, 2022, during INEC’s quarterly meeting with political parties for the year 2022, in Abuja, INEC Chairman, Mahmood Yakubu declared:”…let me once again reassure Nigerians that there is no going back on the deployment of the Bimodal Voter Accreditation System (BVAS) for voter accreditation. There is no going back on the transmission of results to the INEC Result Viewing Portal (IReV) in real-time on Election Day.

There will be no Incident Form that enables ineligible persons to vote using other people’s Permanent Voters Cards (PVCs) during elections. We are committed to ensuring that the 2023 General Election is transparent and credible, reflecting the will of the Nigerian people.” [See: “2023: No Going Back On Electronic Transmission Of Results, INEC Reassures”; Channels TV]

5). Speaking at a meeting with leaders of foreign election observers on 22 February 2023, The Chairman of the Independent National Electoral Commission, Prof. Mahmood Yakubu explained the mode of transmission chosen by INEC pursuant to sections 50(1)&(60(5) of the Electoral Act 2022, which mandated e-transmission but permits INEC to determine the mode of transmission.

The INEC Chairman told them that while RAW ELECTION FIGURES will not be transmitted electronically to avoid, what the presiding officers were required to do was to use the BVAS to snap the election results on the results sheet from each polling unit and upload them on INEC Result Viewing Portal for Nigerians to see. Hear the INEC Chairman: “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 the 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>]

6). During the process leading to the making of the Electoral Act 2022, INEC presented to the National Assembly, suggestions to include in the then-proposed Electoral Act 2022, provisions to mandate ELECTRONIC TRANSMISSION OF RESULTS DIRECT FROM POLLING UNITS ON ELECTION DAY. The National Assembly had rejected INEC’s suggestions, claiming that INEC had no capacity to electronically transmit election results directly from the polling units on election day. However, following further deliberations and INEC’s assurance to the National Assembly, that it (INEC) had the power to electronically transmit results DIRECT from polling units on election day, the National Assembly accepted INEC’s demand to include electronic transmission of results in the Electoral Act 2022. This is what gave rise to the provisions of sections 47, 50, 60, and 64 of the Act.

12. Finally, do you now agree that INEC in having declared publicly on many occasions that it was mandatory to use the BVAS to electronically upload the results from the polling units level to the INEC server/portal/IReV, INEC was actually not making a gratuitous promise (a promise binding only in honour) but was stating the correct legal position or interpretation of the Electoral Act 2022?

13. Do you agree that INEC’s own understanding of the Electoral Act 2022 was that electronic transmission of results (a picture of the result sheet: Form EC8A) direct from the polling units on election day, IS MANDATORY?

14. Do you agree that INEC’s understanding/interpretation as expressly revealed in its many public declarations and press releases before the 25 February 2023 presidential election, is on all fours with the declaration/explanation given by the Court of Appeal in its 24/03/2023 judgment in *Adeleke Nurudeen v Oyetola?* Accordingly, INEC didn’t misunderstand the Electoral Act! Do you agree that the Independent National Electoral Commission (INEC) is the one who officially has the obligation, power and responsibility to enforce the provisions of the Electoral Act 2022 and other laws made pursuant to the Act? Do you now agree that INEC knew before 25 February 2023, that

a.electronic transmission from the polling units to the internet/server/IReV/Portal (by whatever name called) is mandatory under the Electoral Act and (

b. that the electronically transmitted results are a necessary part of the result collation process/procedure under the Electoral Act, 2022

15. Do you agree that since the Electoral Act has made electronic transmission of results from the polling units, MANDATORY, no part of the INEC Regulations and Guidelines or other subsidiary law or laws, has/have the power/authority to make DIRECTORY OR OPTIONAL what the Electoral Act has made mandatory?

Do you agree that since the votes/results e-transmitted from the polling units on election day are a mandatory/necessary part of the verification and confirmation of the manually-collated results during the collation process [as provided by section 64 (4)-(8)] and the dispute-resolution process during collation [as provided by section 64 (4)-(8)] under the Electoral Act 2022, it would be ultra vires and void for INEC to purport to make any directive or prescription that tends to downgrade or dispense with the MANDATORY/necessary place or role reserved by the Act DURING COLLATION for the results electronically transmitted directly from the polling units on election day?

Thus, any part of the Regulations and Guidelines for Conduct of Elections 2022, which is inconsistent with the Electoral Act 2022 could be considered to be void and ineffective on account of its inconsistency with sections 47,50,60, and especially 64 (4)-(8) of the Electoral Act 2022. Please see the discussion, titled “CLAUSES 48 AND 93 OF THE REGULATIONS AND GUIDELINES ON ELECTRONIC TRANSMISSION” in the learned paper/article referred to below:
Udemezue, Sylvester, “Legal Safeguards for Credible Management of Post-Ballot Processes In Nigerian Elections Under the Electoral Act 2022” (March 20, 2023). Available at SSRN: <https://ssrn.com/abstract=4393989> or <http://dx.doi.org/10.2139/ssrn.4393989>. (SSRN-Generated Citation).

*CONCLUSION:
The law is crystal clear, but the problem is, some lawyers either deliberately or inadvertently allow their political leanings, parochial interests and other petty, irrelevant and extraneous considerations to influence, dictate or interfere with their discussions about/on strict issues and matters of law such as this one. A few days ago, Femi Falana SAN, drew our attention to a declaration by Chief Justice Maraga of the Kenyan Supreme Court: “The greatness of any nation depends on its fidelity to its Constitution and adherence to the rule of law and above all, respect to God”. [See: “The Law And You: Electoral Justice In Kenya And Nigeria”, By Femi Falana, SAN; LawAndSocietyMagazine; 13/04/2023].

In AMAECHI V. INEC (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227 that the Supreme Court (per PIUS OLAYIWOLA ADEREMI, JSC) had to warn and remind us, that “In all countries of the world which operate under the rule of law, politics [is] always adapted to the laws of the land and not the laws to politics. Let our political operators allow this time-honoured principle to sink well into their heads and hearts”.

However, with the rampant manner extant laws are now being desecrated with impunity, and treated with contempt in Nigeria, in favour of the arbitrary will, whims and caprices of people in authority, one has begun to ask the exact same question as was once asked by Sol Luckman in his literary work, The Angel’s Dictionary, namely: Has Nigeria become a “Banana Republic: a lawless society where the monkeys rule”? As Tiffany Madison said, “When the Rule of Law disappears, we are ruled by the whims of men”. So, one may ask, have we not arrived in such a scenario in Nigeria? Anyway, in the book titled, You Can’t Be Neutral on a Moving Train: A Personal History of Our Times, the author Howard Zinn wrote: “Perhaps the most important thing I learned about democracy [is] that democracy is not our government, our constitution, our legal structure. Too often they are enemies of democracy”.

So, applying this to our current scenario, would not be making sense if one said that the entire government, governance and legal structure in Nigeria have gone into a perpetual conspiracy against the masses of the Nigerian people, as the enemies of the people. Or, could it be, that there exists in Nigeria, some distinct set of unwritten laws which now takes precedence over the known laws of the land, and which forms the ultimate guiding formula and doctrinal foundation of actions and decisions of Nigerian leaders?

Sir Thomas Jefferson, a founding father and the third President of the United States of America had warned that “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution…on every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed”.

Nigeria’s INEC proved on 25 February 2023 that it cannot be trusted with too much trust and confidence. So, happily, the Electoral Act 2022, in line with Thomas Jefferson’s warning/advice had bound INEC’s hands by making it mandatory, that results must be electronically transmitted directly from the polling units on election day. INEC’s hands were bound on whether there should be the electronic transmission of results. The Act only allowed INEC to work out the details of the already compelled/MANDATED e-transmission.

And INEC chose the third model/mode/style (which I consider the best: transmission of scanned copy duly signed Form EC8A), which is different from the Kenyan model (transmission of raw results) and also different from the Nigerian Bar Association model (electronic voting). I think the words of A.E. Samaan are apt here: “The U.S didn’t achieve its liberty or prosperity by mistake. It was by design, and the architects were the Founding Fathers. Rights given by fads and fashion are just as easily taken away. Let no one mess with the Constitution. The Constitution matters.”

Only adherence to the rule of law can fetch Nigeria genuine progress and happiness; thus, until the Rule of Law alone rules over Nigeria, Nigeria is doomed to remain stagnant and backwards-moving, while the world makes rapid progress leaving us far behind. Finally, Abraham Lincoln warned, “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”

On a lighter note, and as per all the arguments up and down, left and right among lawyers (over clear issues), don’t mind us; it is part of the lawyer’s culture, life and business to argue and disagree. Joyce Carol Oates, an American writer captured it well: “A lawyer is basically a mouth like a shark is a mouth attached to a long gut. The business of lawyers is to talk, to interrupt one another and to devour [one another] if possible”.
God help Nigeria

Respectfully,
Sylvester Udemezue (Udems).

Source: barristerng

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