By Collins Okeke and Gukongozi Esther
Continued from yesterday
THE provision also fails to specify who determines whether communication failure occurred. Is it the presiding officer’s subjective assessment at the polling unit? Must the ward collation officer verify the claim? Should INEC’s technical staff investigate? Can collation officers reject claimed failures and demand electronic transmission? The law provides no procedural framework for resolving these questions, leaving critical decisions to individual discretion rather than clear legal standards.
By designating manual Form EC8A as “the primary source” when communication failure is claimed, the Senate’s provision creates a troubling hierarchy between electronic and manual results. This language suggests that paper forms carry greater legal weight than electronic records when technology allegedly fails. But this hierarchy contradicts the entire purpose of electronic transmission, which is to create a tamper-proof record that prevents the kind of result manipulation possible with paper forms.
Consider a scenario where electronic results from IReV show one outcome, but a presiding officer arrives at a collation centre with a manual Form EC8A showing different numbers and claims communication failure prevented upload. Under the Senate’s provision, the manual result is designated as primary. Even if server logs show that partial transmission occurred, or if citizens have photographic evidence of different numbers being announced at the polling unit, the law says the manual form shall be the primary source for collation and declaration.
This provision interacts problematically with existing Section 64 of the Electoral Act, which requires collation officers to verify that votes stated on collated results are consistent with votes recorded and transmitted directly from polling units. If manual results are primary when communication failure is claimed, does this override the collation officer’s duty to verify against electronically transmitted results? The statute creates conflicting obligations without resolving which takes precedence.
The Senate’s version also raises questions about the burden of proof in election petitions. Under current electoral jurisprudence, petitioners challenging election results bear the burden of proving their allegations. When a presiding officer claims communication failure and presents manual results, must the petitioner prove that communication failure did not occur? Proving a negative is notoriously difficult. Without mandatory documentation requirements or technical verification procedures, demonstrating that claimed failures were fabricated becomes nearly impossible.
Comparison with the House of Representatives version
The House of Representatives passed a different version that retains the “real time” requirement. The House provision mandates that presiding officers “shall electronically transmit the results from each polling unit to the IREV portal in real time.” This language eliminates the delay window that exists in the Senate version. It requires immediate upload whilst witnesses are present, creating a narrow compliance window that closes before presiding officers can leave polling units.
The House version does not include the Senate’s sweeping communication failure exception. Whilst it presumably recognises that technology can fail, it doesn’t create a blanket provision making manual results primary whenever failure is claimed. This places greater responsibility on INEC to ensure technology works and to provide backup systems, rather than creating an easy escape route from electronic transmission requirements.
The substantive difference between the two versions is this: the House version makes electronic transmission truly mandatory with real-time requirements and limited exceptions, whilst the Senate version makes electronic transmission nominally mandatory but creates significant loopholes through the absence of time requirements and the broad communication failure exception.
The harmonisation process
Nigerian legislative procedure requires that when the Senate and House pass different versions of a bill, a conference committee must reconcile the differences. A committee has been established with members from each chamber. This committee will negotiate a unified text that both houses must then approve before the bill can proceed to the president for signature.
The conference committee operates largely behind closed doors, and its deliberations will determine which version prevails or whether some compromise emerges. The committee could adopt the House version with real-time requirements, the Senate version with communication failure exceptions, or craft entirely new language attempting to balance both approaches. Whatever emerges will then face up-or-down votes in both chambers.
From a legal perspective, the harmonisation process represents the critical juncture where statutory language will be finalised. The conference committee’s choices about whether to include “in real time,” how to define communication failure, whether to make manual results primary, and what verification procedures to require will determine whether Nigeria’s Electoral Act provides a robust framework for electronic transmission or a weak framework full of exploitable loopholes.
Implications for electoral litigation
The Senate’s current language creates conditions for extensive post-election litigation. If the provision becomes law in its current form, expect election tribunals to be inundated with cases disputing whether communication failures were genuine, whether manual results should override electronic records, and whether collation officers properly verified claimed failures.
These cases will require tribunals to make factual findings about technical matters the statute doesn’t adequately address. Different tribunals may reach different conclusions about similar fact patterns, creating inconsistent jurisprudence. Appellate courts will struggle to provide clear guidance when the underlying statute itself is ambiguous. The result will be prolonged legal uncertainty after close elections, precisely what electoral reform should prevent.
Contrast this with a statute that includes real-time requirements and clear communication failure protocols. Such legislation would reduce litigation by making compliance standards clear and making violations easier to prove. When the law mandates immediate upload and provides specific procedures for documenting genuine technical failures, disputes become more straightforward to resolve. The Senate’s current version achieves the opposite effect.
Conclusion
The controversy over electronic transmission reveals a fundamental tension in Nigerian electoral reform. The country has invested in technology capable of making elections transparent and results verifiable in real time. But technology alone cannot reform elections if the legal framework remains weak. The Senate’s current position represents partial progress by explicitly recognising electronic transmission and naming the IReV portal in statute, but it falls short of creating the robust legal requirements necessary to prevent manipulation.
The critical deficiencies are the absence of “in real time” language, the undefined communication failure exception, and the designation of manual results as primary when technology allegedly fails. These provisions create opportunities for delay, fabrication of technical excuses, and override of electronic records by paper forms. They transform what should be a strong transparency mechanism into a discretionary system vulnerable to abuse.
The legal implications extend beyond the 2027 elections. Whatever language is ultimately adopted will establish precedents for interpreting electronic transmission requirements, allocating burdens of proof in election disputes, and balancing technology with traditional paper-based processes. The choices made now will shape Nigerian electoral law for years to come.
As the conference committee begins its work harmonising the Senate and House versions, the central legal question is whether Nigeria will adopt clear, mandatory, enforceable standards for electronic transmission or settle for ambiguous language that creates the appearance of reform whilst preserving opportunities for manipulation. The answer will determine not just the technical process of result transmission but the fundamental credibility of Nigerian democracy.
Concluded.
Okeke is partner and head of government relations and public sector practice at Olisa Agbakoba Legal and Gukongozi an associate at Olisa Agbakoba Legal.
In this article