EXPLAINER: Is INEC in breach of law on e-transmission of results?

Many Nigerians have expressed worry over the alleged breach by the Independent National Electoral Commission (INEC) of the Electoral Act 2022 with respect to the electronic transmission of election results following Saturday’s presidential and National Assembly elections.

Senator Dino Melaye, former senator and party agent of the Peoples Democratic Party (PDP), and other parties’ agents walked out of the National Collation Centre on Monday, in protest of the “obvious violations” and “vehement evasion” of the law.

These violations, according to them, are based on the requirements of electronic transmission of polling unit results, which INEC introduced to ensure the elections are free, fair and credible.

Results of elections from 176,846 polling units were expected to have been transmitted to the INEC Result Viewing Portal immediately the votes were collated at every polling unit but the presiding officers at various polling units lamented their inability to transmit the results, especially those of the presidential election, through the Bimodal Voter Accreditation System (BVAS), an equipment issued to the officers for such purpose.

What does the law say on the electronic transmission of election results? Is the right of Nigerians to a credible election as guaranteed by the law being violated by INEC?

Procedure for voting

The Electoral Act provides in section 47 that a voter in an election must present himself with his voter’s card to a presiding officer for accreditation at the polling unit in the constituency in which his name is registered. The presiding officer will also use a smart card reader or any other technological device for the accreditation of voters, to verify, confirm or authenticate the particulars of the voters.

The law is also states that “where a smart card reader or any other technological device fails to function in any unit and a fresh card reader or technological device is not brought, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours”.

Counting, recording and transmission of votes

Section 60 of the Electoral Act states that “the presiding officer shall, after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the commission as the case may be”.

More so, section 60 (5) of the Act states that the presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the commission”. The prescribed manner here is the BVAS, which INEC introduced to ensure that the electoral process is credible. The BVAS was introduced by INEC in line with Section 148 of the Electoral Act, which gives INEC power to make guidelines and regulations to ensure the full effect of the law.

Legal experts criticise INEC’s actions

Inibehe Effiong, lawyer and political activist, said “the electronic transmission of votes provided by the Electoral Act and in the guidelines issued by INEC has not been complied with”.

He said: “The INEC chairman has compromised and made it clear that he has no credibility and reputation to organise credible elections by first failing to offer a cogent explanation for the blatant non-compliance with the law with regards to the electronic transmission of votes.

“This has repudiated what should have ordinarily been a credible election process.”

According to him, the provisions of the Electoral Act under section 60, which provides for the mode of transmission, have not been complied with. “This makes the entire election process questionable. In fact, this election lacks credibility and should be nullified,” Effiong said.

Adedeji Adeyemi, a Lagos-based lawyer, said: “The fact that the results were not transferred from the polling units has made nonsense of the entire process.

“INEC is in breach of the provisions of the law under sections 60 and 64 (4) of the Electoral Act.”

Section 64 (4) of the Electoral Act states that “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 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 and that the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units”.

Adeyemi said: “There were no statements by the returning officers that the results being called out were verified and confirmed that they were those directly transmitted from the polling unit.

“All these show that the entire process is inconsistent with the various laws including the 1999 Constitution and the Electoral Act 2022 and to this effect, the whole process is void. Nigerians have the right to credible elections and INEC must uphold this duty to Nigerians.”