The Senate, Electronic Transmission and Hollow Victory

The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

“Where there’s a Will, there’s a Way.”

– George Herbert

First Observation

It is rather unfortunate that the first observation that I am constrained to make, even before I go into the meat of the matter of today is that, given the way Nigeria has regressed in so many ways in the hands of the Politicians since the beginning of the Fourth Republic, a huge trust deficit has been created between the citizens and the Government, making most people permanently sceptical about Government and their policies. From one successive civilian administration to the other, the lot of Nigerians has worsened, and the people are yet to truly enjoy the dividends of democracy that they were promised during the quest for freedom from the Military. It was these promises that attracted Nigerians to democracy, along with the idea of freedom of expression and respect for fundamental rights – see Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution).

I remember when Madam US Secretary of State, Madeleine Albright, visited a few months after Nigeria’s return to democracy in 1999, she addressed us at an event in Abuja, and I remember her saying that it wasn’t enough to return to democracy; that the people must see the dividends of democracy, as quickly as possible. Albright stated that, it was imperative that Politicians fulfil the promises that were made to the people, institute reforms and curb corruption. A major chunk of democratic dividends would definitely be the people’s ability to choose their preferred candidates at the polls, by means of free and fair elections. This one dividend alone, is the difference between democracy and authoritarianism, a dictatorship forced on the people, and one democratically elected by them. Unfortunately, because of Nigeria’s faulty electoral process, fraught with fraud and malpractice, starting from lack of intra-party democracy concerning the choice of candidates, to the elections themselves, it wouldn’t be wrong to conclude that Nigeria is yet to achieve true democracy.

Perhaps, it is this failure on the part of Politicians that has influenced Nigerians to believe that, when Politicians appear to be dead set against something, it is because that thing is probably not in their own interest, though it may be in the best interest of the people. That the way some members of the National Assembly (NASS), particularly the leadership of the Senate (that had to be called out publicly by a group of fellow Senators), appeared to be against electronic transmission of results in real time (immediately), using failure of network in many parts of the country as an excuse, is because this process may be a hindrance to those who have the propensity to engage in election malpractice.

It is ironic, that this perception about Nigerian Politicians defeats US President Abraham Lincoln’s famous definition of democracy and what it should stand for: “Government of the people, by the people, for the people”. Our reality screams ‘Government of the politicians, by the politicians, for the politicians’! The mindset of the people is that, if anything, our so-called leaders are pro-themselves, even if they cannot be described as outrightly anti-people. And, consequent upon this negative perception, sometimes, rightly or wrongly, or without  proper consideration of the facts, the people take their stand, usually opposite to that of the Politicians.

Brief Overview of Electronic Voting in Nigeria

The history of electronic voting is that, in Section 52(2) of the Electoral Act 2010, electronic voting machines were prohibited. The Electoral Act 2015 then introduced a replacement of the old Section 52(2), and provided that voting would be conducted by the procedure to be determined by the Independent National Electoral Commission (INEC).

In the 2018 Electoral Amendment Bill, a new provision which was to replace Section 52(2) of the Electoral Act 2015 provided that: “The Commission shall adopt electronic voting in all elections or any other method of voting as may be determined by the Commission from time to time”. This was the first time electronics was to be formally introduced into the Electoral Act, and even though the word ‘shall’ was used, with the allowance of any other method to be determined by INEC, it is obvious that ‘shall’ couldn’t have been used in its mandatory, command sense, but as ‘may’, since it allowed any other method that INEC felt was necessary in any circumstance. In Ugwu & Anor v Ararume & Anor (2007) LPELR-24345(SC) per Niki Tobi, JSC, the Supreme Court held thus: “In the interpretation of statute, the word “shall” has various meanings…The word “shall” when used in a statutory provision imports that a thing must be done, and that when the negative phrase “shall not” is used, it implies that something must not be done. It is a form of a command or mandate”. But, in BPS Construction & Engineering Co. Ltd v FCDA (2017) LPELR-42516(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN), the Supreme Court held inter alia that: “…. whether the word is used in its mandatory or directory sense, depends on the context in which it is used. The word “shall” can also mean “may”, where the context so admits”.

However, the 2018 Amendment Bill wasn’t passed. Subsequently, the 2022 Electoral Act (EA) was enacted, and Section 50(2) thereof provides inter alia that “….voting and electronic transmission of results….shall be in accordance with the procedure determined by the Commission”. Aside from the mention of electronic transmission of results, this provision isn’t particularly different from what obtained before.

Clearly, NASS has never meant for the electoral process or the transmission of results, to be fully automated. The history of electronic voting has only moved from outright prohibition, to recognising it as a means that may be utilised. Nothing more. In 2023, even though the INEC Guidelines may have provided for the electronic transmission of results to IREV, the Guidelines are inferior to the EA which doesn’t provide for mandatory electronic transmission of results, and couldn’t  therefore, supersede the EA. See Jegede & Anor v INEC & Ors (2021) LPELR-55481(SC) per Emmanuel Akomaye Agim, JSC, where the Supreme Court held inter alia that failure to abide by INEC Guidelines cannot be relied on in an election petition, as grounds to invalidate the election.

Electronic Transmission of Results

This issue of electronic transmission of results, is actually not being considered holistically, even by the people. The Senate amended Section 60(3) of the EA to allow for electronic transmission of results from the polling units to IREV when there is no failure of technology, after Form  EC8A has been duly completed and signed and stamped by the Presiding Officer, and countersigned by the Candidates or their polling agents, where available at the polling units. But, even if the results are uploaded to IREV from the polling units immediately the Form EC8A process is completed, IREV isn’t a collation device, and there are other steps in the collation process – the results move to the Ward, then Local Government, and then State Collation Centres. How will these subsequent steps be taken? As long as these results have to move from Centre to Centre, there is still room for manipulation.

The argument of some proponents of electronic transmission of results is that, as far back as 2021, INEC had declared that it is able to electronically transmit results immediately from any part of the country, as they had already done so in about 20 elections, so why are we still having a debate about network problems in 2026?

Aside from the fact that the amendment to Section 60(3) of the EA still makes electronic transmission of results somewhat optional, in that it would be the Presiding Officers, and if some of the Presiding Officers are those who can be easily compromised, those who have compromised them,  that would be the ones to probably decide whether technology has failed or not, and whether results will be transmitted manually or electronically. This provision is therefore, elastic and discretionary, leading one to the irresistible conclusion that not much has changed and the victory for electronic transmission of results is rather hollow. Its just moving around on the same spot, with no traction. The process is still manual to a large extent, as what would be electronically transmitted to IREV in real time, would still be the result that has been manually imputed into the Form EC8A. Essentially, this means that, if garbage is entered into Form EC8A, it will certainly be garbage that will be pushed out via the electronic transmission of the contents of the Form EC8A to IREV!

Again, those who are clamouring for electronic transmission of results, seem to think that all polling units in Nigeria are like those that are shown on television during elections, located in urban or elite areas, such as Maitama, Abuja or Ikoyi, Lagos, where voters sit around and count the individual ballot papers at the end of voting, before they are entered into Form EC8A in the presence of the voters. This doesn’t happen everywhere. It is estimated that at least 40% or even more of Nigeria’s population reside in rural areas, and polling units are located there. What about some of the remotest parts of the country, such as Gashaka, Taraba State or Chibok, Borno State, or parts of Niger State or the riverine areas that have polling units, but access is difficult and infrastructure, extremely limited? Who knows what transpires there, during elections? What if results are just written in such areas without actual voting, and then electronically transmitted to IREV? Undoubtedly, this would be a prime example of garbage in, garbage out! My point? The manual imputation of the contents of the Form EC8A which is then electronically transmitted to IREV, still allows for fraud and manipulation.

Going Forward: India, Brazil, Possible Case Studies for Nigeria?

What Nigerians and indeed, all these good governance and election monitoring NGOs should be concerned about, is ascertaining the weakest points in the electoral process chain that make election malpractice thrive, and how the exploitation of these loopholes can be curbed for a more accurate output.

The system in a country like India that has almost 1 billion registered voters, with over 600 million people actually voting, should be one of the case studies for INEC, in terms of how to manage large numbers. Nigeria had just over 93 million registered voters, and less than 30% of them actually voted in the 2023 general elections. In terms of numbers, Nigeria isn’t close to India at all. But, still, with Nigeria’s young and growing population, it would be instructive to learn how India registers its large numbers of voters (possibly the largest number in the world) and provides polling units in the remotest parts of the country. Does Nigeria even make use of helicopters, to transport INEC officials to remote and riverine areas? What process is adopted for voting in India? How are results transmitted, so that final results involving over 600 million votes, are available the very next day after the elections? While I’m not saying the Indian electoral process is perfect, I am saying that INEC may have many useful things to learn from it, if indeed, there is sincerity about improving our own electoral process.

Conclusion

The huge sums of money allocated to INEC must be well deployed to improving the electoral system, adoption of cutting edge technology, logistics and making the process seamless. Former President Olusegun Obasanjo, GCFR was once quoted to have said that, even if angels conduct Nigeria’s elections, there would still be malpractice. This points to the fact that, the more automated the electoral system is and the less the human intervention is, the better it will be for Nigeria’s elections. How can this be achieved?

Can Nigeria not adopt a hybrid system, similar to India or Brazil, where the voter’s choice is electronically transmitted directly to a central server as the vote is cast, collated electronically, rather than through a manually imputed Form EC8A, while simultaneously a physical copy of the voter’s choice is also printed and deposited the traditional way into the ballot box, so that there’s a digital and paper trail? I believe this may be the system, that India and parts of Brazil use.

And, even if INEC Chairman, Professor Joash Amupitan, SAN says INEC has no control over network, Ellon Musk’s ‘Starlink’, for instance, does! It has nationwide coverage in Nigeria, and reaches the remotest parts of the country. The connection is fast and reliable. INEC can make use of it. Going into a special arrangement with a reliable network system such as Starlink for election purposes, will ensure that electronic transmission of results from the kind of hybrid system that I have described will be successful, resulting in more credible election outcomes. Can the satellite system be deployed?

The bottom line is that, if Nigeria is serious about developing her democracy, after seven general election cycles and many off-cycle elections, it is easy for any serious electoral body to identify the weakest points in the process and strengthen them. And, one of them  has been identified as unreliable network; if there’s sincerity of purpose, this problem should have been addressed years ago. The buy-in of NASS is also required (see Section 4 of the Constitution), but, it appears that, NASS lacks the will to enact laws to make Nigeria’s electoral process unimpeachable.

To the extent that it is a non-automated process -Form EC8A- that precedes the electronic transmission of results, it remains more or less, a manual process, whether in real time or otherwise. Even if the Legislature amends Section 60(3) to make the electronic transmission of results mandatory, without an option for a manual alternative when technology fails, if the feeder into the electronic transmission is still the same old hand-operated Form EC8A method which is easily subject to fraud and manipulation, and the electronic transmission doesn’t also entail transmission to collation, but only IREV, not much progress would have been made.