September 8, 2023
By Michael O. Dedon, BL, LL.M(UK)MCIArb(UK)
It is no longer news that the Presidential Election Petitions Tribunal (PEPT) ruled that the Independent National Electoral Commission (INEC) is not legally mandated to transmit election results electronically. The tribunal, led by Justice Haruna Tsammani, said that there is no provision for the electronic transmission of election results in the Electoral Act 2022. This decision is to all intent and purposes specious, disingenuous and cynical. It finds no support in law and is in fact, an affront to the quest to have free, fair and credible elections in Nigeria.
This now brings to the fore the question of the legality of electronic transmission of election results in Nigeria, the issue being whether they have the force of law. The answer to this question is in the affirmative. This is because, the law expressly authorises the INEC to make regulations regarding the conduct of election in Nigeria as will be shown hereunder. This power to make own Regulations is in legal parlance known as ‘delegated legislation’ and any order or regulation made under that delegation is known as ‘subsidiary legislation’ which are lawful as they have the force of law.
For clarity, under Nigerian Law, there are two basic forms of legislation. These are Primary legislation and Subsidiary legislation. Primary legislative are the laws made by the National Assembly (NASS) which have power to make laws on all matters, subject to the limitations stated in the Constitution. The laws made by the NASS are known as “enabling legislation.” These enabling legislation in turn delegate a limited legislative power to other bodies, even when, as is usually the case, the Constitution is silent on the matter, the power to make laws. Those bodies may exercise that power by issuing their own legislation, commonly referred to as subsidiary legislation. In a nutshell, where an Act is enacted into law by the NASS, each principal Act makes provision for subsidiary legislation to be made, and will specify who has the power to do so under that act.
The factor that distinguishes legislation from other kinds of rules or provisions is the source of the authority to make them. Only those bodies that have the legislative power conferred upon them can make legislation and the INEC is one of such bodies. In fact, the 1999 Constitution itself, in its Section 160(1), empowers the INEC to create its own regulations to direct its actions. This means that the INEC is empowered to make its own regulations without recourse to the President in order not to compromise its independence. Additionally, the NASS, in the exercise of its legislative power, enacted the Electoral Act of 2022, which was signed into law by Buhari on the 25th day of February, 2022. The Electoral Act 2022 also recognises the authority of INEC to make own regulations, as the provision of Section 148 of the Act dictates that certain actions are left to the manner which will be provided by the Commission. The exercise of this power by the INEC led to the creation of the INEC Regulations and Guidelines for the Conduct of Election, 2022.
The INEC Regulation further asserts its discretion on the manner in which elections will be conducted, birthing Clause 38 in the Regulation, which introduced the electronic transmission of election results. The regulation holds the status of a subsidiary legislation, as it was born from the primary lawmaking responsibility of the legislature, which had delegated its power to the INEC. Any action in defiance of the regulation by those bound by it is therefore unlawful, as the regulation carries the same weight and force as the law empowering it. The court in the case of Best Njoku v. Chief Mike Iheanatu (2008) LPELR-3871, held that a subsidiary legislation is one that is subsequently made pursuant to the powers conferred by the principal legislation to which it is complimentary; it has the force of law. The electronic transmission of election results by virtue of being in the INEC regulation, receives the force of the law and this cannot be derogated from.
The electronic upload of results from the polling units was an avenue to curb electoral malpractice, as it saves the results sheets (EC8A) from being manipulated during collation at the ward. In fact, 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”. By the INEC Regulation, the prescribed manner here is the Bimodal Voter Accreditation System (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.
Section 64 (4) of the Electoral Act also 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.” The emphasis is clearly on the results from the polling units and not the collation at wards. With the directives of INEC as to the manner of the transmission, the presiding officer’s disobedience to such attracts sanctions. It is however noteworthy that the law does not make it mandatory that election results be only transmitted electronically as it can also be manually transmitted in instances where electronic transmission is not immediately possible. However, electronic result is conferred with priority in cases of conflict with other results.
Results of the 2023 Presidential Election from 176,846 polling units all across Nigeria were expected to have been transmitted to the INEC Result Viewing Portal (IREV) immediately the votes were collated at every polling unit but the presiding officers at various polling units could not do so as the procedure was compromised. The entire process is therefore inconsistent with the various laws including the 1999 Constitution and the Electoral Act 2022 and to this effect, the whole process is void.
The 1999 Constitution and the Electoral Act 2022 expressly permit the INEC to decide the mode of transferring or transmitting results of elections it conducted. Pursuant to the delegated authority, the INEC made a Regulation clause 38 of which introduced the electronic transmission of election results which were to be accorded priority over other means of transmitting result. The said Regulation is a subsidiary legislation with the force of law. The INEC failed or refused to comply with its own Regulation. It should have been sanction rather than patted on the back by the judiciary. Judges are meant to interpret and apply the provisions of Statutes and not seek to amend them or whimsically ignore them. Fundamentally, statutes generally take precedence over judicial decisions that are inconsistent. There are too much judicial shenanigans in election petition tribunals in Nigeria. Efforts must be made to curb the trend.
