By Godfree Matthew
INTRODUCTION
This article examines the question: Whether Electronic Transmission and Uploading of Election Results Are Condition Precedent for Declaration of Presidential Results under the Electoral Act, 2022? This flows from the facts that one of the questions that characterized the presidential election of February 25, 2023 was the agitations by political parties which are based on not uploading of election results transmitted from polling units. [1]An act is said to occur against a condition precedent when it is carried out without first complying with a procedure or an event that is prescribed by a law.[2] It is something that must be done before an act can be accorded legitimacy in the eyes of the law. In line with the topic of this article, a further question to ask is: can a declaration of presidential election be voided because of failure to electronically transmit and upload presidential results?
For a dispassionate appraisal of this discourse, this work shall explore the legal province of electronic transmission and uploading of election results transferred from polling units as well as the declaration of results under the Electoral Act, 2022 (subsequently refers to as Electoral Act) and the Regulations and Guidelines For the Conduct of Electoral Guidelines For the Conduct of Elections, 2022 (subsequently refers to as Electoral Guidelines). With respect to the transfer of results from polling unit to be uploaded, sections 60(5), 62(2) and section 68 Electoral Act.[3] Equally, the clauses that deal with transmission and uploading of results are clauses 38, 48, 55 and 93 of the Electoral Guidelines.
On transfer of results from polling units, section 60 (5) of The Electoral Act, is explicit. The section deals with ‘counting of votes and forms.’ Before analyzing the content of section 60(5), it is apposite to state the procedures that must be followed before the said section must be invoked. By the preceding subsections of section 60, the Presiding Officers is obliged to; (a) to count the votes at the polling units,(b) enter the votes scored by each party in a form prescribed by the Commission, [4] (c) the prescribed form signed and stamped by the Presiding Officer shall be signed and countersigned by the candidates or their agents at the polling unit,[5] (d) the Presiding Officer shall give the copy of the form signed to the police officer at the polling units as well the polling agents, [6] and (e) after that, the Presiding Officer shall count and announced the results at the polling unit.[7]
It was when the above procedures are followed that the application of section 60(5) of the Electoral Act shall be invoked. The said section 60(5) of the Electoral Act provides that:
(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.
From the provision of the above law, one is further prompt to ask the following questions; (a) does the reference to the word ‘transfer’ in section 60 (5) of the Electoral Act, convey the notion of transmission of results? ; (b) By what means is the Presiding officer expected to transfer the total number of accredited voters and the results scored by candidates at the poling units? , and (c) what is the manner prescribed by the INEC in transferring the number of accredited voters and the results scored by each parties? The respond to these questions can be found by community appraisal of Electoral Act, as well as the Electoral Guidelines.
The word transfer is defined to mean “to move from one place to another; to move something/somebody from one place to another.”[8] Within the context of section 60 (5) of the Electoral Act, transfer could mean movement of election results from polling units to collation center. Thus, the duty of the presiding officer to transfer the results and total number of accredited voters from polling units qualifies as the movement of those results. While the destinations where those results and accreditation of voters are transferred to, qualifies as another place referred to in definitions of place.
From the above expositions, it could be deduced that when giving strict literal interpretation, the word ‘transfer’ in section 60(5) of the Electoral Act, does not contemplate only electronic transmission of results from polling unit. Rather, it also contemplates the physical transfer of the results directly from polling units to the collation system, which could be done manually. By this rendition INEC is still tied to the former tradition of physical and manual transfer of election results to polling units. This argument becomes more apposite considering the fact that, in section 152 of the Electoral Act, the phrase ‘electronic format’ does not include the word ‘transfer’ or any diction associated with it. Neither does it refer to any physical delivery of results to collation system. Thus, since the interpretation section on electronic format in section 152 does not contemplate transfer, it will be apt to say that by exegesis, section 60 (5) may not only refer to electronic transmission of results.
However, ascribing references to electronic transmission of results under sections 60(5) of Electoral Act can be done from two angles. The first is by mutual conflation of section 60 (5) of the Electoral Act, with sections 62 (2) and 64 of the Electoral Act,[9] as well as references to the Electoral Guidelines.
Conflatory interpretation of Section 60(5) with Sections 62(2) and Section 64 of the Electoral Act, 2022
The first section to be examined here is section 62(2). After that the said section will examine how it is linked with section 60 (5) of the Electoral Act, with respect to electronic transmission. For the purpose of clarity section 62 (2) provides as follows:
(2) The Commission shall compile, maintain and update, on a continuous basis, a register of elections results to be known as the National Electronic Register of Election Results which shall be a distinct database or repository of polling units by polling units results, including collated election results, of each elections conducted by the Commission in the Federation, and Register of Election Results shall be kept in electronic format by the Commission at its national headquarters.
The above section refers to the polling unit results in section 60 (5) of the Electoral Act, in two ways. Firstly, results from polling units form the contents of the National Electronic Register of Election Results. Secondly, results from polling units are kept in electronic format via electronic transmission. From this background it is apparent that section 60(5) has nexus with section 62(2) of the Electoral Act, 2022.
Additionally, section 64 which deals with endorsement on rejected ballot paper without official remark, refers to electronic transmission in a manner that tallies with contemplation of section 60(2) of the Electoral Act, 2022. This is because section 64 (6) specifically provides for recourse to votes cast and election results transmitted from polling units to determine the correctness of a disputed results. The said section 64 (6) (c) and (d) of Electoral Act, 2022 provides that:
Where during collation of results, there is a dispute regarding a collated results or result of an election from any polling unit, the collation officer or the returning officer shall use the following to determine the correctness of disputed results-
(a)…………….
(b) smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed for the purpose of obtaining accreditation data directly from the smart card reader or technology device;…………………
(c) data of accreditation recorded and transmitted directly from each polling unit where the election is disputed as prescribed under section 47 (2) of this Act; and
(d) the votes and results of the election recorded and transmitted directly from each polling unit where the election is disputed , as prescribed under 60(4) of the Act.
A community reading of section 64(6) (b), (c) and (d) of the Electoral Act, clearly show that there is connection with section 60 (5) of the Electoral Act, 2022. This is because reference to ‘other technology device’ as an alternative to Smart Card Reader, for accreditation of voters, in section 64 (6) (b) is referring to Bimodal Verification Accreditation Systems( Subsequently Known as BVAs).[10]
Further, section 64 (6) (c) and (d) of the Electoral Act, 2022 refers to recorded data of accreditation, polling unit results, votes and results of election recorded directly transmitted from each polling units. These wordings could be liberally interpreted as akin to the roles of Presiding Officers in section 60 (5) which states that “the Presiding Officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner prescribed by the commission.” Equally, the said ‘data of accreditation recorded that is transmitted’ in section 64(6) (c) are actualized through the Bimodal Verification Accreditation system (BVAs). Similarly, ‘the votes and results of the election recorded and transmitted directly transmitted from each polling unit’ are done via the Bimodal Verification Accreditation system (BVAs).
Conflationary Interpretation of Section 60(5) and Electoral Guidelines, 2022.
The relationship between transfer and electronic transmission in section 60 (5) can be seen from the phrase ‘other manners prescribed by the commission’. Thus, the manners prescribed by INEC on how the Presiding Officer shall transfer election results under section 60(5) of the Electoral Act are spelt out in the Electoral Guidelines, 2022. One of those particular clauses that deal with electronic transfer of results is clause 38 which provides that:
On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:
Electronically transmit or transfer the results 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 the INEC Results Viewing Portals (IReV), as prescribed by the Commission
Another provision is clause 48 of the Electoral Guidelines. This clause deals with election results electronically transmitted or directly transfer from polling units. It states that:
An election results shall only be collated only if the Collation Officer ascertains that the number of accredited voters agrees with the numbers recorded in the BVAs and votes scored by political parties on the results sheet is correct and agrees with the results electronically transmitted or transferred directly from the Polling Units as prescribed in this Regulations and Guidelines.
If a Collation or Returning Officer determines that a result from a lower level of collation is not correct, he/she shall use the results electronically transmitted or transferred from that lower levels to collate and announce that results.
If no results have been directly transmitted electronically for a polling unit or any level of collation, the provision of clause 93 shall be applied. [11]
By the provisions of the above clauses, it is clear that there are two methods of conveying election results from polling units to collation center. The first is electronic transmission of results via BVAs. The second is the direct transfer of those results to the collation center. The reference to ‘direct transfer of results’ in the above clause further aligns with the argument that section 60(5) of the Electoral Act, implies manual transfer of results. Thus, it is important to point out that by the renditions of clauses 38 and 48 of the Electoral Guidelines, INEC is provided with two manners of collating results from polling units which are by electronic transmission or by direct manual transfer from polling units. Thus, INEC is at liberty to adopt which ever procedure it deems fit. This is because it is a trite law that where a statute provide for two or more methods of doing an act, the party charged with that responsibility is at liberty to choose any of these methods to discharged its functions.
Thus, it is the writer’s submission that it is only by liberal interpretation of section 60(5) of the Electoral Act, 2022 that one can conclude that this section refers to physical transfer of results of elections. However, it is by the same liberal interpretation of section 60 (5), especially the clause ‘…in a manner prescribed by the Commission’ that one can resort to the Electoral Guidelines. From the examination of the relevant provisions of the Electoral Guidelines that one can conclude that the electronic transmission of results is contemplated in this section.
Having established references to electronic transmission of results in the collation process, the next subject-matter of discourse under this article is whether electronic transmission of result is a condition precedent for the declaration of results of Presidential election? The answer to this question is in the negative. This spurs from the fact that the law governing declaration of presidential results did not state that electronic transmission of results is sine qua non before declaration of results of presidential election. The prescribed procedure for declaration of presidential results is provided for under section 66 of the Electoral Act, 2022 which states that:
In an election to the office of the President Or Governor whether or not contested and in any contested election to any other elective office, the results shall be ascertained by counting the votes cast for each candidate and subjected to the provisions of sections 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.
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Gleaning from the above provision of the Electoral Act, certain indices are worth considering in establishing whether or not electronic transmission is sine qua non for the declaration of presidential results. One of these indices is how can the results of the votes scored by a presidential candidate be ascertained? Again, what are the requirements stipulated under section 133 and 134 of the 1999 Constitution that section 66 of the Electoral Act must be subjected to?[12]
In ascertaining the procedure for determining the counting of the results scored by presidential candidates, recourse must be had to the Electoral Guidelines. Under the Electoral Guidelines, there are three methods of ascertaining the scores of presidential candidates. These are: (a) collations of Presidential Election results at the Local Government Area/Area Councils Level,[13] (b) Collation of Presidential Election results at the State Level,[14] and (c) Collation Of Presidential Election Results at the National Level.[15] For purpose of analysis it is pertinent to reproduce some of these clauses that deal with the collations of results of Presidential Elections.
Clause 53 which deals with collation of presidential election results at the local government levels states that:
The Local Government/Area Council Collation Officer For the Presidential Election Shall:
Take delivery of all the original copies of forms EC8B from the registration area/ward collation officers together with other materials and reports relating to the election, including form EC40(G) if any;
Collate the results for the presidential election by entering the votes scored by each political party in the original copy of EC8B into form EC8C in figures and words.
Add up the RA/Ward results to get the LGA summary;
Cross-check the totals and entries in EC8C with the collation support and result verification system (CSRVS) Secretariat;
Announce loudly the votes scored by each political party;
Sign, date and stamp the forms and request the polling agents to countersign;
Hand over the Electoral Operation copy (top copy) of form EC8C to the INEC LGA Supervisor;
Distribute copies of the forms to the polling agents and the police.
Transfer the total number of collected PVCs of affected polling units where election was not held or were cancelled, from forms EC40G into form EC40G(I);
Complete the PWD Status forms EC40H(III) using form EC40H(II);
Implement any other result management procedure as prescribed by the Commission with the assistance of the collation support and result verification system (CSRVS) officer or RATECH;
Electronically transmit or transfer the result directly to the next level of collation, as prescribed by the commission; and
Take the original copies of form EC8C to the presidential collation officer at the state collation centre together with other materials and reports relating to the election, including form EC40G(I).
From the above, it is clear that there is no reference to electronic transmission of results except in paragraph (xii). Even the reference to electronic transmission of results is not mandatory but an alternative, which is at the discretion of INEC. This is because the said paragraph (xii) states ‘or transfer the results directly to the next level of collation…’. By this, it could be implied that INEC has the discretion to use either the electronic transmission or manual transfer of results in collation. It must not necessarily used electronic transmission of results.
Furthermore, collation at the State Level is spelt out under clause 54 of the Electoral Guidelines as follows:
The State/FCT Collation officer for the presidential election shall:
(i) Take delivery of the original copies of form EC8C from the LGA/Area council collation officers together with other materials and reports relating to the election including form EC40G(I);
(ii) Transfer the votes scored by each political party from forms EC8C into form EC8D and enter the votes scored in both figures and words in the spaces provided;
(iii) Add up the LGA/Area council collated results to obtain the state summary;
Cross-check the totals and entries in form EC8D with the collation support and result verification system (CSRVS) Secretariat for computational accuracy;
Transfer the total number of collected PVCs of affected Polling units from EC40G(I) into form EC40G(II), where elections were not held or cancelled in respect of all the LGAs/Area councils in the state/FCT
Announce loudly the votes scored by each political party;
Sign, date and stamp the form and request the polling agents to countersign;
Hand over the Electoral operations copy (top copy) of EC8D to the Residential Electoral Commissioner;
Distribute copies of form EC8D to polling agents and the police;
Complete the PWD Status form EC40H(IV) using form EC40H(III);
Implement any other result management procedure prescribed by the commission with the assistance of the Collation Support and Result Verification System (CSRVS) Officer or the Registration Area Technical Support Staff (RATECHs).
Transmit or transfer the result directly to the next level of collation as prescribed by the commission; and
Take the original copy of form EC8D together with other materials and reports relating to the election which were returned by the LGA/Area Council Collation Officers of the National Collation Centre, in a tamper-proof envelop.
By the above provision of clause 54, there is one instance of electronic transfer of results which is in paragraph (xii).The said paragraph (xii) outrightly states that State/FCT Officer collation shall transmit or transfer the result directly to the next level of collation as prescribed by the commission. This further implies that the State/FCT Collation officer is at liberty to either transmit the results electronically or transfer results directly, which could be manual transmission.
Clause 55 of the Guidelines provides for the declaration of the results of Presidential Election as follows:
The Chief Electoral Commissioner, who is the Returning Officer for the Presidential election shall:
(i) Take delivery of the original copies of form EC8D from the state Collation Officers together with other materials and reports relating to the election, including forms EC 40G (II) and EC40H(IV), where available;
(ii) Collate the votes scored by each party from Form EC8D receive from State/FCT Collation Officers into Form EC8D(A) and enter the votes scored by each Political Party in both figures and words in the spaces provided;
(iii) Add up the collated State/FCT results to obtain the national summary;
(iv) Cross-check the totals and entries in Form EC8D (A) with the Collation Support and Result Verification System (CSRVS) Secretariat for computational accuracy.
(v) Transfer the number of collected PVCs of Polling Units where election was not held/cancelled for the respective States/FCT from Form EC40G (II) into Form EC40G (III);
(vi) Announce loudly the votes scored by each political party;
(vii) Sign, date and stamp the form and request the Polling Agents present to countersign;
(viii) Retain the Electoral Operations copy (top copy) of Form EC8D (A);
(ix) Proceed to distribute copies of Form EC8D (A);
(x) Compare the total number of voters affected in Form EC40G (III) with the margin of win between the two leading candidates;
(xi) If the margin of win is more than the figure recorded in Form EC40G (III). Proceed to enter the scores of the candidates in Form EC8E for the declaration of the Presidential election results.
Clause 55 of the Electoral Guidelines deals with the declaration of presidential results. It is contingent upon the fulfillment of clauses 53 and 54 of the Electoral Guidelines. This means it is after the collation of the presidential results from the Local Governments and the States plus the FCT that the Chief Electoral Officer (Chairman of INEC) can proceed to declare presidential results.
Again, from the provisions of clause 55 and section 66 of the Electoral Act, which deal specifically with the declaration of presidential results by Chief Electoral Commissioner, there is nowhere reference to electronic transfer of results is mentioned. Neither is there reference to upload of election results to server. What the clause obliged the Chief Electoral officer to do is to announce the total number of scores made by each party, and after that, declared the winner of the election based on margin lead principle.
Based on the above expositions, it is the further submission of this article that the electronic transmission and uploading of results before declaring a winner of presidential election is not a mandatory provision as provided by the clause 55 of the Electoral Guidelines and section 66 of the Electoral Act. This is because in law, one of the requirements to determine whether or not a provision in a statute is mandatory, to is to find out if a failure to comply with the dictates of that provision will render such act void. This line of argument agrees with the view of Supreme Court in the case of Nwora V Nwabueze [16] where it was held that:
A provision in a statute is said to be mandatory when disobedience to it, or want of exact compliance with it, will make the act done under the statute absolutely void.
Thus, when one peruse through the province of clause 55 of the Electoral Guidelines 2022 and section 66 of the Electoral Act, one can interrogate further with these questions: (a) Is there a penalty for not transmitting and uploading electronic results before the Chief Electoral Commissioner shall declare a winner of Presidential Election? And (b) Does such provisions state that declaration of the results by Chief Electoral Commissioner can be voided because it was not electronically transmitted or uploaded? When this answer is in the affirmative, it could be safe to that section 66 of the Electoral Act, and clause 55 of Electoral Guidelines, 2022 prohibit the Chief Electoral Commissioner from declaring a result without electronic transmission and uploading results. However, where the answer is in the negative, it is then the law, that the Chief Electoral Officer can declare Presidential Result without electronically transmitted and uploaded results.
Conclusion
From the onset of this article, it is established that the province of section 60 (5) of the Electoral Act could be interpreted to mean the law authorizes both electronic and manual transmission of election results. The conflating interpretation of sections 62(2) and 64(6) of the Electoral Act clearly shows that electronic transmission of results is contemplated by the Electoral Act, 2022. Aligned with this is the fact that the Electoral Guidelines equally made references to electronic transmission.
However, this article has shown that by the renditions of section 66 of the Electoral Act as well as clauses 53, 54 and 55 of the Electoral Guidelines, the electronic transmission of results or uploading of election results, is not a condition precedent for declaration of presidential results. Also these provisions are not mandatory because they do not penalized failure to upload and electronically transmit election results, before declaration of the presidential results. Neither do they render such declaration void for want of electronic transmission of results or uploading of results.[17]
The next part of this article will address the question; whether the validity of an election can be challenged for not complying with electronic transmission and uploading of election results under the Electoral Act, 2022? The response to this question will be the fulcrum of the next topic of discussion.
[1]1.George Opara, “Nigeria Decides: Halt Announcement of Manipulated Results-PDP Tells INEC”, February 28,2023@dailypost.ng
[2]2.FRN V Maishanu (2019) 7 NWLR PT.1671@P.225 Paras. A-B
[3]3.Section 68 of the Electoral Act, 2022 is a procedure that deals with post-declaration of election results. It provides that “the Commission shall cause to be posted on its notice board and website, a notice showing the candidate at the election and their scores, and person declared as elected or returned at the election”. Since this section deals with Post-Declaration of results procedure, this article will not engaged it in the main gist of this article.
[4]4.Section 60 (1) of The Electoral Act, 2022
[5] Section 60 (2) of The Electoral Act, 2022
[6] Section 60 (3) of The Electoral Act, 2022
[7] Section 60 (4) of The Electoral Act, 2022
[8]8.AS Hornsby, “Oxford Advanced Learner’s Dictionary”,(Oxford University Press, 2010) P.1587
[9]9. This writer deploys the reasoning of the Supreme Court in interpreting Chapter Two of the 1999 Constitution in the case of Center For Oil Pollution Watch V N. N.P.C (2019) 5 NWLR PT 1666 where it was held @P.569 Paras. D-E that: ‘The proper approach to the interpretation of Chapter Two of the Constitution is should be by mutual conflation of other provisions of the constitutions with the provisions of the Chapter”.
[10]10. See clause 38 (ii) and (iii) of Electoral Guidelines, 2022
[11]11. Clause 93 empowers Collation Officers to resort to electronically transmitted results or results in INEC Result Viewing Portal( IReV ) to Proceed with collation in the presence of the party agents and security personnel.
[12]12. These requirements deals with qualification of president to win at least 25 % with FCT Abuja. This work will not examined the presidential qualification for declaration of presidential results. This will be a matter of discussion for another day. Rather, this writer will examined the processes for ascertaining votes.
[13]13.Clause 53
[14] Clause 54
[15] Clause 55
[16]16. (2019) 7 NWLR PT.1670 @P.34 Para.G
[17]17. (Supra)
