Nigeria, being a democratic State, has struggled to achieve a transparent and fair electoral process in the past decade. The most populous African nation lacking a successful and transparent electoral process, declared a new Electoral Act predicated on technology.
President Muhammadu Buhari signed the 2022 Electoral Act Amendment Bill into Law on February 25, 2022. The Act incorporates several provisions infusing a high level of transparency into the Electoral Process, generating a legitimate expectation that electoral malpractices including ballot stuffing, alteration and doctoring of election results would be eliminated. Ironically, the two leading candidates who lost the presidential election conducted on February 25, 2023 – Alhaji Abubakar Atiku and Peter Obi, seem to have a bundle of complaints, suggesting that the new Act made no difference or that its implementation was grossly mismanaged. Of all the complaints by both candidates, the most prominent infraction was the failure of INEC to transmit results electronically.
Electronic Transmission of results through the BVAS
Sections 47, 60 and 64 of the Electoral Act 2022 introduced a framework for the seamless electronic accreditation and transmission of votes into the Nigerian Electoral Process. Acting pursuant to its powers under section 148 Electoral Act 2022, the INEC issued guidelines launching the use of the Bimodal Voter Accreditation System (BVAS) for a seamless & transparent accreditation and online & offline transmission of results in the 2023 elections.
BVAS is multifunctional. It is deployed both for the accreditation of voters and the transmission of election results. Section 47 of the Electoral Act 2022 makes the electronic accreditation of any voter a compulsory condition precedent to vote in the election. The Electoral Act provides that the presiding officer shall transfer the results and the total number of accredited voters in a manner prescribed by INEC. The importance of electronic accreditation is reinforced by the provision of the guideline compelling the polling officer as well as the ward collation officer to rely exclusively on the accreditation numbers for determining the number of valid votes.
The Regulation further elucidates this provision and prescribes the means to achieve the intent of the Act. Summarily, the relevant provision reads that upon completion of voting and result procedures, the presiding officer shall ensure that the results of each polling unit are electronically transmitted or transferred to INEC’s collation system.
the burden to prove the genuineness of results collated manually must be thrust on INEC. The shifting of the burden of proof introduces a new jurisprudence which might be the game changer. This will spare the petitioner the need to call evidence in all the polling units where he alleges that there was an irregularity.
Concurrently, the results written in the result sheet will be scanned and uploaded by the BVAS to IReV. Put differently, regarding the transmission of results in real-time, the INEC guidelines mandate:
The electronic transmission or transfer of the result of a Polling Unit directly to the collation system;
The use of the Bimodal Voter Accreditation System (BVAS) to upload a scanned copy of the EC8A (result sheet) to the INEC Result Viewing Portal (IReV)
Section 38 of the Regulation provides:
“On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:
(i) Electronically transmit or transfer the result of the Polling Unit, direct to the collation system …”
This simplistic, albeit, innovative provisions of the Act and Regulations became an up-hill battle at most polling units across the country, as many presiding officers decried their inability to neither electronically transmit the election results of the polling units, nor upload the result sheets to the INEC’s collation system and the IReV. It is alleged that the server to convey the converted result to PDF was down.
Failure to transmit results electronically through the BVAS
The leading candidates who lost the election contend that the words ‘transmitted’ or ‘transferred’ in the Act, are used interchangeably. The effect is that the failure to transmit or transfer electronically gives rise to a fundamental defect. The results must be electronically transferred or electronically transmitted. The counterargument is that the use of the word “or” separates the Transmission from the Transfer. In other words, although the Act gives predominance to electronic transmission, physical transfer is not altogether ruled out.
The reliance on the physical transmission being a somewhat default provision will have to be justified by INEC. The absence of a Network is likely to be a good enough reason for failure to adhere to electronic transmission. The burden to prove and justify the use of physical transmission will be saddled on INEC. Similarly, the burden to prove the genuineness of results collated manually must be thrust on INEC. The shifting of the burden of proof introduces a new jurisprudence which might be the game changer. This will spare the petitioner the need to call evidence in all the polling units where he alleges that there was an irregularity. The burden on the petitioner pursuant to the old Act was such that in Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 242, Buhari, the petitioner, was required to call no less than 250 witnesses to succeed in a 150 thousand polling unit spread.
The failure to use the BVAS or the failure to exhaust its functionality has two possible consequences. Addressing first the failure to transmit results, the ward collation officer is immediately deprived of a photographic image of the result sheet that had its score entered and finalized in the presence of all voters. Consequently, a ward collation officer will be unable to download a result sheet. The outcome of this failure is that all results will then be physically transmitted thereby exposing the result to possible manipulation and doctoring. The very same thing that the new Electoral Act seeks to eliminate
At the accreditation level, the polling officer would have been deprived of the opportunity to confirm and ensure those permitted to vote were only those who had earlier been registered. The polling officer will also be in confrontation with the relevant guideline -the guideline that seeks to use accreditation recorded by the BVAS as the only record to ascertain whether there had been overvoting.
This singular act of not relying upon the BVAS as required by the Electoral Act and the Guidelines issued by INEC for the 2023 Election has clogged the transparency assured to Nigerians by the Commission.
Over voting
Overvoting in a polling unit arises when the number of votes cast at the polling unit exceeds the number of accredited voters in that polling unit. The Presiding officer is empowered by section 51(2) of the Electoral Act 2023 to cancel the election in any such polling units. The accreditation record in the BVAS is the only record to be used to ascertain a possible discrepancy.
Also, at the Collation Points, a Collation Officer or Returning Officer have a mandatory duty to verify the results transmitted from the polling units by presiding officers, to ensure that there is no overvoting. Section 64(7) of the Electoral Act vests on the Collation officer, the powers to re-collate and announce results which are disputed or suggest overvoting. The decision of the collation officer may be reviewed by the commission within 7 days.
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It does appear (as alleged by the losing candidates) that both the polling agents and the returning officers in many polling units performed their functions manually. With accreditation, the voter’s cards were ticked against a matching name on the electoral register. It seems that with the strong wording of the Act, a failure to accredit a voter by the BVAS is a sufficient infraction to nullify that polling unit. And were the BVAS is used, any overvoting (more votes even by a single vote) will similarly nullify the election in that polling unit.
Conclusion
The position of the law is that failure to comply with the Electoral Act and its guidelines is insufficient to nullify the election. It must be shown that such failure had a substantial impact on the outcome of the elections. This burden is ordinarily on the petitioner. The new Act however appears to reverse the burden and now thrust the same on INEC. Accordingly, INEC is now to show that manually compiled results are authentic and error-free. The impact of reversing the burden of proof and placing the same on INEC is significant. INEC must show that the result by which it declared a winner is superior to that presented by the losing Party. INEC will also have to show that where there is non-compliance with the Electoral Act, such non-compliance had no substantial impact on the outcome of the election. The contending party merely had to make the allegation of irregularities.
With this approach, INEC will have to call evidence to support every result that is challenged by the petitioner. It is unlikely that INEC will be able to surpass this threshold. The resultant effect is that INEC may be compelled to conduct a fresh election, with a cohesive order that it uses the BVAS to transmit results. In this circumstance, the court will be doing no more than ensuring that there is full compliance with the provisions of the law.
Osaro Eghobamien is the Managing Partner at Perchstone & Graeys, and Michael Onyishi is an Associate at the Firm
