By Baridoo, Bariledum Bright

Introduction

Irregularities and non-compliance with the provisions of electoral laws, guidelines and regulations are bound to occur during the conduct of an election. This has been witnessed in previous and the just conducted Presidential and National Assembly polls. Expectedly, these anomalies cause hardship and do impede the chances of a popular candidate emerging victorious in an election. In light of this, Section 43 of the Electoral Act and Section 9 of the 2022 INEC Guidelines and Regulations succinctly provides for the appointment of Polling Agents to represent the legitimate interests of Political Parties and their sponsored candidates to ensure the integrity of an electoral process.

Who is a Polling Agent?

By Section 152 (the interpretation section) of the 2022 Electoral Act, a Polling Agent means a person representing a political party or its candidate at the polling unit, ward, Local Government, Federal constituency, Senatorial district, State or Federal collation centres. The representative status of a Polling Agent has been recognised in a long line of authorities. In Chief Alex O. Oke & Anor Vs. Dr. R. O. Mimiko & Ors (2014) 1 NWLR (PT. 1388) 332, the Supreme Court per Mary Odili, JSC held that “On a revisit of the evidence of PW 45 who testified on what transpired in over 1000 polling units. That witness assumed the role of a polling agent whose Junctions are defined by section 45 of the Electoral Act. Polling agents represent the respective political parties at the numerous polling units in obvious recognition of the enormity of the task of those monitoring the election in all the polling units of the State.” In the case of Agballah v. Sullivan Chime (2009) 1 NWLR (Pt. 1122) 373 at 433 – 434, the Supreme Court, while equally appreciating the status of a Polling Agent, held that “none of the appellant’s party agents that allegedly represented the appellant at the election, signed and collected the said election results forms from the numerous polling units, was called to testify in the petition. A fortiori, the failure of the appellant to call the party agents that represented and served as his representative at the various polling unit to give evidence was fatal to the petition.”

How is He/She Appointed?

The procedure for appointing of Polling Agents is contained in Section 43 of the Electoral Act and Regulation 9 of the Electoral Guidelines and Regulations. Under these provisions, each political party is required to consult with its candidate, and may, by notice in writing addressed to the Resident Electoral Commissioner of the State, appoint a polling agent for each polling unit and collation centre in the Local Government Area or Area Council for which it has candidate. The notice, is required to contain the name, address and contact details of the polling agent, and should be accompanied by two passport photographs of each polling agent and a sample signature of the polling agent. The notice is to be given to the electoral officer at least 14 days before the date fixed for the election.

Who can be Appointed a Polling Agent?

By the proviso in Section 43 (1) of the Electoral Act and Regulation 10 of the Electoral Guidelines and Regulations, no person holding or occupying an elective or appointive political office under any tier of government and who has not resigned from his office at least three months before an election is qualified to serve as a polling agent of any political party, either at the polling unit or at any centre designated for collation of results of election. A person holding an elective or appointive office can only be appointed a Polling Agent where he resigns at least three months before the commencement of an election.

What Role can He/She Play?

A combined reading of the Electoral Act and the Electoral Guidelines and Regulations reveals several roles which a Polling Agent can play in the interest of his party and candidate. By Section 9 of the Electoral Guidelines, a Polling Agent is to act as a representative of his/her political party in a polling unit, collation centre or in any level of distribution of election materials that he may be assigned to act by his political party. See Chief Alex O. Oke & Anor Vs. Dr. R. O. Mimiko & Ors (supra) wherein the Supreme Court held that the “witness assumed the role of a polling agent whose Junctions are defined by section 45 of the Electoral Act. Polling agents represent the respective political parties at the numerous polling units in obvious recognition of the enormity of the task of those monitoring the election in all the polling units of the State.” This adumbration was cited with approval in Pastor I. O. Andrew V. INEC (2018) 9 NWLR (PT. 1625) 507.

By Section 41 of the Electoral Act and Regulation 102, he is entitled to be present at the distribution of the election materials and may inspect and observe the distribution of election materials, the conduct of accreditation, voting, counting of ballots and the collation and declaration of results without any let or hindrances unless he acts in a manner which is without lawful excuse. He may call the attention of an election official to any irregularity but not interfere, countersign the appropriate result forms at Polling Units and the appropriate results collation forms at Collation Centres, and comply with lawful directives issued by, or under the authority of the Independent National Electoral Commission(INEC) and generally conduct themselves in an orderly manner; but where a Polling Agent aids or abets election malpractices, he may be disqualified and be liable to criminal prosecution under Regulation 11. These processes may be recorded in writing, on video or by any means by any Polling Agent. This suggests that he/she is in a significant position and the best person to tender evidence on incidents at polling units in court for his political party in the event of litigation. Quite recently, the court underscored this point in PDP v INEC (2022) 18 NWLR (Pt. 1). In that case, the court held that in giving evidence about polling units results, it must be proved that the witnesses observed the making of results or were signatories to them.

It is useful to also mention that a Polling Agent is invested with powers to challenge the right of a person to vote on grounds that he/she knows are inconsistent with the laid down procedures of law. This right is contained in Section 48 of the Electoral Act. Under Section 57 of the Electoral Act, he can also draw the attention of the Presiding Officer to a person who he/she has reasonable cause to believe he/she is an impostor.

Where voting has been concluded and scores entered into appropriate forms, a Polling Agent is required to countersign after the Presiding Officer and is equally entitled to receive a copy of each of the completed forms. This is ingrained in Sections 60 (2) and (3) and 71 of the Electoral Act. This is very important to the effect that it can give weight to the case of a petitioner where there is dissatisfaction about the outcome of polls, particularly where there is an alteration of election results. Thus, in PDP v. INEC (supra), it was held to the effect that in giving evidence about polling units results, it must be proved that the witnesses observed the making of results or were signatories to them. In Atiku and Anor v. INEC LER [2019] CA/PEPC/002/2019, it was held that “the best evidence the appellants could have had was that of the agents at the polling units who were physically on ground and in true position to testify as to what transpired at an election. The consequence of shutting them out for whatever reason is very detrimental to the appellants’ case.” See the case of Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352. See also Agballah v. Sullivan Chime (supra), where the Supreme Court held that “none of the appellant’s party agents that allegedly represented the appellant at, signed and collected the said election results forms from the numerous polling units was, called to testify in the petition. A fortiori, the failure of the appellant to call the party agents that represented and served as his representative at the various polling unit to give evidence was fatal to the petition.” It is again well within the right of a Polling Agent to demand a recount of votes provided it cannot be done more than once. This is under Section 61 of the Electoral Act.

Another pertinent point is embodied in Regulation 16 and it pertains to the signing of the Attendance Register in the Polling Unit booklet by the following categories of election personnel: Presiding Officers (POs), Assistant Presiding Officers (APOs) Polling Agents, Security Personnel, Accredited Observers and Media. With respect to the interests of his/her political party and candidate, the Polling Agent is strongly advised to take an appropriate record of the categories of election personnel present and those who signed the register. With respect to timely arrival before the commencement of election processes, a Polling Agent is expected to be very conscious to ensure that all sensitive materials are available before the commencement of accreditation. This is significant as a preventive measure against the manipulation of election results. The recent past Presidential and National Assembly polls witnessed a wide range of irregularities to the effect that voters were made to undergo accreditation only to be informed thereafter that original result sheets were not available. This was a deliberate ploy by enemies of democracy to force their will on the people. More so, for reasons that his/her absence or non-attendance at the time and place appointed for an act or thing to be done in his presence, shall not be invalid the act or thing provided it was properly done, he is expected to puntual to witness every act and process in the conduct of the particular electionn. This is vital because the court has held that the booths are the roots which nourish the whole electoral process and where a petitioner challenges the correctness of the return of an election declared by the returning officer, the petitioner must lead evidence which will directly or indirectly establish the votes scored by him and his opponent at the polling booths. His role at that is significant for reasons that he is in true position to give account of what transpired at the Polling Unit. This postulation was tacitly affirmed in Atiku and Anor v. INEC (supra), in the following words: “the significance of the polling units agents cannot therefore be underestimated in the case at hand if the appellants must have the facts to prove their case. The best evidence the appellants could have had was that of the agents at the polling units who were physically on ground and in true position to testify as to what transpired at an election. The consequence of shutting them out for whatever reason is very detrimental to the appellants’ case.”

In conclusion, Polling Agents as embodied herein, are critical stakeholders in the electoral process. They occupy an important position and can be instrumental to electoral credibility in Nigeria if they discharge their duties diligently. They should be well equipped with the abilities to fit into the roles they have been made to perform. Ahead of the Gubernatorial and State Houses of Assembly polls, we expect to see more informed Polling Agents because they have been entrusted with enormous powers to protect the interests of their principals (their political parties and the candidates sponsored by their political parties).

References:

Jide Ojo, Polling agents and electoral integrity, The Punch Newspaper, 19th January 2019 visited 6th March 2023.
Funmilola Adeniran, Mistakes Political Parties must not Make When Instituting An Action, After Election Results Is Out As Established In The Case Of PDP v INEC (2022) 18 NWLR (Pt. 1) visited 3rd March 2023.

The writer, Baridoo Bariledum Bright, is an undergraduate law student. He is writing from Justice Biobele A. Georgewill Students’ Chambers, Faculty of Law, University of Port Harcourt. He can be reached at [email protected].

7th March 2023.