By Alex Enumah

As the Presidential Election Petitions Tribunal gets set to begin to hear the petitions filed by

Atiku Abubakar and the Peoples Democratic Party, as well as Peter Obi and the Labour Party, one of the central issues on the side of the petitioners is whether the Independent National Electoral Commission is by law bound to transmit or transfer election results electronically, Alex Enumah writes

It is no longer news that with the conclusion of the February 25 presidential election and the declaration of Senator Bola Ahmed Tinubu of the All Progressives Congress (APC) as the President-elect by the Independent National Electoral Commission (INEC), his opponents, Atiku Abubakar of the Peoples Democratic Party (PDP) and and Peter Obi of the Labour Party (LP) rejected the results.

As the aggrieved parties are now putting finishing touches to their processes, many analysts are espousing the need to consider the grounds for challenging the poll.

For instance, Section 134 of the Electoral Act, 2022 provides that a party who intends to challenge the process and or outcome of an election can do so on the following grounds: (a) a person whose election in questioned was, at the time of the election, not qualified to contest the election; (b) the election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or (c) the respondent was not duly elected by the majority of the lawful votes cast at the election.

To contest an election in this context the candidate must be qualified to do so. It is a constitutional requirement that must be met otherwise the candidate will be deemed not qualified to contest. According to Section 134(3) of the Electoral Act.2022, a person is deemed to be qualified for an elective office and his election shall not be questioned on the grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of Sections 65,106,131 or 177 of the Constitution and he is not, as may be applicable, in breach of Section 66,107,137 or 182 of the Constitution.

The implication of the above is that where it is satisfactorily proven by the petitioner before the tribunal that the winner of an election is not qualified to contest the election, therefore, the candidate who came second will have to be declared the winner of the election.

An election can be questioned on the grounds that it was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act and the Regulations and Guidelines for the conduct of elections. This places a compulsory duty on INEC to adhere to the provisions of the above laws in order to have free, fair and credible elections. A breach of the Act and Guidelines has far-reaching consequences.

For instance, the failure of INEC to upload election results to the INEC Result Viewing Portal (IREV) in real-time using the BVAS, electoral violence, disenfranchisement of voters, intimidation, manipulation of election results, mutilation of result sheets are all incidents of corrupt practices and non-compliance, which the Electoral Act frowns at and are grounds upon which an election can be challenged.

The compliance issues will be around the use of technology. Of note is the use of card readers, BVAS, and IREV. The Osun case of Oyetola and Anor v Adeleke & Anor is in this sense a prelude to this new era.

Any petitioner approaching the Presidential Election Petitions Tribunal on grounds of non-compliance must not only ensure he puts together a formidable legal team that comprises experts in the use of technologies provided under the Electoral Act 2022, but must also be abreast with innovations introduced by some relevant sections of the 2022 Act. These innovations in the Electoral Act will be the game changers at the election petition tribunals. For instance, although the Court was reluctant to grant an order of inspection of card readers in the case of Atiku Abubakar & Anor v INEC & Anor LER [2019] CA/PEPC/002/2019 supra, with Section 47(2) of the new Act providing for mandatory use of BVAS, an all-together different approach is anticipated from the court.

The Supreme Court in the extant case refused an order for inspection of INEC server on the basis that the Act did not make provision for a server. But a community reading of Section 60(5) of the 2022 Act and Article 38 of the Regulations and Guidelines for the conduct of Elections 2022 is expected to bring in a new dimension to the issue. Section 60 (5) provides: “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.”

It is in line with the power donated to INEC in the above section, that the commission released the Regulations and Guidelines for the conduct of Elections 2022. Clause 38 of the regulation provides: “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.”

This Regulation as a subsidiary law is binding on INEC and all players in the election. Hence, substantial compliance with some of these innovations is expected to dominate proceedings at the election petition tribunals.

Many analysts believe that INEC is by law bound to transmit or transfer election results electronically. The solace of their view is predicated on the combined interpretation of Section 60(4)(5) of the Electoral Act, 2022 and Clause 38 of the Regulations and Guidelines for the Conduct of Elections, 2022.

The Section provides as follows: “60 (4). The presiding officer shall count and announce the result at the polling unit. 60 (5). 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 question begging for an answer from the above section is, what is the manner of transfer prescribed by the commission? The answer is not far-fetched as it can be found in Clause 38 of the Regulations and Guidelines for the Conduct of Elections, 2022 which stipulates thus:

“Upon 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 as prescribed by the commission. (ii) Use BVAS to upload a scanned of the EC8A to INEC Result Viewing Portal (IReV), as prescribed by the commission. (iii) Take the BVAS and the original copies of all forms in a tamper evident envelope to the RA/Ward Collation officer in the company of security agents. Polling agents may accompany the PO to the RA/Ward Collation Centre”.

A combined reading and interpretation of both the Electoral Act, 2022 and the INEC Regulations and Guidelines for Conduct of Elections, 2022 above clearly shows without any ambiguity that electronic transmission or transfer of results and upload of Results to IReV are mandatory. It is also apt to note that the INEC Regulations and Guidelines require that the presiding officer must electronically transmit or transfer the results directly from the polling units, after which the results would then be taken manually to the collation centres. In simplest terms, it means that the Regulations and Guidelines prescribe two levels of collation:(1). Electronic transmission (collation) which must be done direct from the polling units; and (2). Manual collation which would then follow after electronic transmission.

Having dwell so much on the INEC Guidelines and Regulations, and not unmindful of the fact that INEC Guidelines and Regulation is a subsidiary legislation, the INEC Guideline and Regulation by judicial authorities had been accorded a place of prominence as part and parcel of the Electoral Act. In APP vs. INEC (2019) LPELR 48465 (CA), the Court of Appeal aptly held the INEC Guidelines form part of the Electoral Act and non-compliance with them means non-compliance with the Electoral Act. This position also received judicial blessing in the case of Hon. James Abiodun Faleke v INEC & Anor. (2016) 18 NWLR (Part. 1543) 61.

Furthermore, by virtue of Section 160 (1) of the 1999 Constitution (as amended), INEC has the constitutional power to regulate its own procedure or confer powers and impose duties on its officers for the purpose of discharging its functions. Section 148 of the Electoral Act also contains similar provisions to ensure proper discharge of its functions. It follows, therefore, that since the INEC Guidelines are backed up constitutionally and statutorily, they must be invoked, applied and enforced.

The court in Iniama v Akpabio (2008) 17 NWLR(pt.1116) 225; OKE V MIMIKO (2014) 12 NWLR (PT. 1388) 322 held that a petitioner who pleads corrupt practices and non-compliance with the Electoral Act must establish by evidence their effects on the outcome of the election. That is, for a petition to succeed under these grounds, it must be proven that there was non-compliance and that the non-compliance substantially affected the result of the election.

It is worthy of note that Section 137 of the Electoral Act, 2022 provides that it shall not be necessary for a party who alleges non-compliance with the provision of this Act for the conduct of elections to call oral evidence if the originals or certified true copies manifestly disclose the alleged non-compliance.

It is consequent upon this that Senator Dino Melaye posited that INEC’s failure to comply with the provisions Section 60(4)(5) of the Electoral Act, 2022 and Clause 38 of the Regulations and Guidelines for the Conduct of Elections, 2022 on direct electronic transmission from the polling units renders the entire process of the presidential election illegal and void. He stated that the entire process is illegal and void because the statutory provisions and requirements on electronic transmission of election results under the Electoral Act 2022 and the Regulations and Guidelines for Conduct of Elections, 2022 are mandatory

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