By Eric C. Ezugwu
The Independent National Electoral Commission (INEC) was established pursuant to Section 153(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria. By Section 153(2) of the Constitution, the INEC was clothed with numerous powers enumerated under Item 15 of Part 1 of the Third Schedule to the Constitution. By Item 15(a) of that part of the Schedule, the INEC is empowered to organize, undertake and supervise all elections to the office of the president and vice president among others. Also, by Item 15(i) of that same part of the Schedule, INEC was mandated to carry out other functions as may be conferred upon it by an Act of the National Assembly. An Act of the National Assembly simply means the law made by the House of Representatives and the Senate and signed into force by the President of the Federal Republic of Nigeria.
It is in consonance with Section 153(2) and Item 15(i) of Part 1 of the Third Schedule to the Constitution that the National Assembly enacted the Electoral Act 2022. Prior to the coming of the Electoral Act 2022, there was previously the Electoral Act of 2010 which was amended in 2015 but was completely repealed by the 2022 Act. During the regime of the 2010 Electoral Act, the INEC adopted manual transmission of results from the polling units up to the National Collation Centre. This position was affirmed by the Court of Appeal when confronted with the question of interpreting Section 52 of the 2010 Act and paragraph 22 of the Regulations and Guidelines for the Conduct of Elections 2019 (Exhibit P27) in the case of ABUBAKAR & ANOR V. INEC & ORS (2019) LPELR-48488(CA). The Court of Appeal in that case held:
“Undeniably, the procedure for collation and transmission of election results in the above paragraphs of Exhibits P27 and P28 is manual and by the Election Officials at the different and all levels or stages of the election from the polling units/voting points…to the National Level. There is no provision in either Exhibit P27 or P28 for transmission of election results electronically either by the use of Smart Card Reader or other means, at any level of an election. In addition, there is no provision in the Amended Electoral Act authorizing or empowering 1st Respondent or any of its officer or official… to transmit results of the election electronically to any server through the use of Smart Card Reader.”
For purposes of clarity, the chain of the presidential election cycle starts from the Polling Unit headed by the Presiding Officer, to the Ward Collation Centre headed by the Collation Officer, to the Local Government Collation Centre headed by the LG Collation Officer, to the State Collation Centre headed by the State Returning Officer, and to the National Collation Centre headed by the Chief Returning Officer who is usually the INEC Chairman.
The law under the 2010 Electoral Act was that the results of the polling units would be announced immediately after counting at the polling units by the Presiding Officers. Also, the law required the Collation Officers at the Ward Collation Centers to announce the ward level results after counting. The same applied to the LG Collation Officers, the State Returning Officers and the Chief Returning Officer who was required to declare the winner of the presidential election based on the available results. The court of appeal in explaining this procedure under the Old Act held:
“Exhibits P27 and P28 show that the results of the elections were to be manually collated; entered into various appropriate forms by Election Officials and results announced publicly at every stage of the electoral process,” ABUBAKAR & ANOR V. INEC & ORS (Supra).
It became very obvious under the 2010 Electoral Act that the manual transmission of results gave room for electoral malpractices such as manipulation, mutilation, alteration, subtractions and additions in the original result sheet (Form EC8A) which were mainly done between the ward collation centers and the National Collation Centre in the case of the presidential elections. This situation became a mischief which needed to be cured, and whether it was truly cured by the 2022 Act, we shall find out below.
By virtue of Section 60(4) & (5) of the 2022 Act, the Presiding officer in charge of a polling unit shall count and announce the result of his polling unit, and he shall thereafter transfer the result in the manner prescribed by INEC. This section did not expressly specify the means through which the result is to be transferred. However, it is the elementary principle of law that a section of legislation is not read in isolation but in community with other relevant sections. See RT. HON. ROTIMI AMAECHI V. INEC & ORS (2008) 5 NWLR (PT. 1080) 227 AT 314. Thus, it is necessary to explore other related and relevant sections of the Act.
In Section 64(4)(b) of the 2022 Act, the Collation Officer before announcing the result at the Ward Collation Centre shall verify and confirm that the result given to him by the Presiding Officer was correct and consistent with what the Presiding Officer had transmitted to INEC directly from the Polling Unit. Again, the Act failed to expressly mention the word “electronic” to qualify the word “transmitted” thereby leaving one to wonder whether the Act meant manual transmission or electronic transmission.
To find answers to this seemingly ambiguous provision, it is apt to adopt the mischief rule of interpretation to ascertain the true intents of the lawmakers and the actual intendment of the Act. The Mischief Rule of Interpretation was laid down in 1584 in Heydon’s case and it simply means evaluating the problem that prompted the making of the Law. Citing the Heydon’s case with approval, the Supreme Court in ONYEANUSI V. MISCELLANEOUS OFFENCES TRIBUNAL (2002) LPELR-2066 (SC) held:
“In order to properly interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s case (1584) 3 Rep. 7a to consider how the law stood when the statute to be construed was passed, what the mischief was, for which the old law did not provide, and the remedy provided by the statute to cure that mischief.”
As earlier mentioned, the position of things under the 2010 Electoral Act was that the presidential election results were manually transmitted from the polling units through to the National Collation Centre which gave room to lots of electoral malpractices. In a bid to cure that mischief, the new Electoral Act introduced the transferring and transmitting of results directly from the polling units by the Presiding Officers even before moving to the Ward Collation Centers, as the remedy. The reason for this was to nip electoral malpractices or what is commonly known as rigging in the bud. Therefore, if disputes arise as to any discrepancy between the results at the ward or local government Collation centers and those of the polling units, those of the polling units shall prevail. This is the spirit of Section 64(6) of the 2022 Electoral Act.
Also, adopting the laws of reason, it beats every imagination that the Presiding Officer could possibly adopt manual transmission of the polling unit result to INEC headquarters which is kilometers away, before moving to the Ward Collation Centre which is just a few meters away from the polling unit. Thus, one is safe to conclude that by the community reading of Sections 60(4) &(5) and 64(4)(b) & (6) of the 2022 Act, the Act could only have intended electronic transfer and or transmission of results directly from the polling units before moving to the Ward collation center to submit the results to the ward collation officer in line with Section 62(1) of the Electoral Act.
Assuming without conceding that the above conclusion is wrong, there is still another angle to it. Pursuant to Section 148 of the Electoral Act 2022, the Act empowers the INEC to make regulations, guidelines and manuals for the conduct of elections. It was in line with the above section that the INEC enacted the Election Regulations and Guidelines 2022 which provided in clause 38 that:
“the Presiding Officer shall electronically transmit or transfer the result of the polling unit, direct to the collation system as prescribed by the Commission; use the BVAS to upload a scanned copy of the EC8A to the IReV as prescribed by the Commission.”
The combined effect of Sections 60(4) &(5) and 64(4)(b) of the 2022 Act and Clause 38 of the Election Regulations and Guidelines is that the Presiding Officer must directly transfer or transmit a scanned copy of the Original Result (Form EC8A) to the INEC server at the polling unit after announcing the result. Any transfer or transmission done thereafter at a place different from the polling unit and by a person other than the Presiding Officer is not only illegal but also very crass as it defeats the essence for which the new Act was enacted.
It is apt to mention that these Regulations and Guidelines are not mere ethics or moral principles that may not have the force of law. They are in fact, subsidiary legislation made pursuant to Section 148 of the 2022 Act, and as such, have the same weight and force of law as the Electoral Act itself. In BEST NJOKU V. CHIEF MIKE IHEANATU (2008) LPELR-3871 (CA), the court held that a subsidiary legislation is one that was subsequently made pursuant to the powers conferred by the principal legislation to which it is complimentary; it has the force of law. Therefore, a subsidiary legislation cannot be desecrated by anybody, not even by its maker. The Regulations and Guidelines for the Conduct of Elections 2022 are subsidiary legislation made by INEC pursuant to the powers conferred by Section 184 of the Electoral Act, 2022 and they cannot be violated by anybody, INEC inclusive.
This puts the argument to rest as to the legality or otherwise of electronic transmission of results in Nigeria under the 2022 Electoral Act as Electronic Transmission of results is not only legal; but also constitutional owing to the fact that the INEC is a creation of the Constitution which empowered the National Assembly to enact the Electoral Act which in turn empowered the INEC to enact the Guidelines.
Whether the INEC complied with the Constitution and the enabling laws in the conduct of the 2023 General Election is a question which shall be determined by the Election Petition Court.
Eric C. Ezugwu Esq., LL.B, BL is Managing Partner, Kingshill Legal Consult, Abuja, Nigeria.