Until the Electoral Act (Amendment) Bill is passed into law any election result that is electronically transmitted by the Independent National Electoral Commission (INEC) is illegal, a cross section of Nigerian lawyers has said.
In their contributions to the raging controversy over INEC’s purported transmission of the results of the 2019 presidential election, the lawyers told LEADERSHIP Weekend that it amounts to illegality for the commission or its officers to have transmitted the said results when the Electoral Act (Amendment) Bill, 2018, has not been signed into law.
They argued that Section 52 (2) of the operating Electoral Act 2010 prohibits the use of electronic voting machine in Nigeria, including the transmission of the results electronically.
In the same vein, the legal luminaries said that Section 65 of the same Electoral Act 2010 stipulates that election results shall be transmitted manually by INEC presiding officers and that this law which governed the conduct of the 2019 elections has not been repealed.
The ruling All Progressives Congress (APC) and the opposition Peoples Democratic Party (PDP) are into a fierce verbal war over the purported existence of a server where INEC allegedly stored the results of the February 23 presidential poll won by President Muhammadu Buhari.
Among the eminent lawyers, who commented on the matter yesterday, were Chief Mike Ahamba (SAN), Alasa Ismaila, Muktar Abanika, Dr. Kayode Ajulon, and Ismail Alahusa.
They asserted that said since the Electoral Bill which mandates the immediate transmission of voting results from polling units to collation centres has not come to effect, the so-called transmitted result is invalid and any reliance on it is null and void.
The lawyers drew attention to the 2015 INEC’s Directives, Guidelines and Manuals which provided for the use of smart card reader while Section 49 of the Electoral Act provided for the use of voter cards instead.
According to them, petitioners in previous elections who placed reliance on INEC guidelines by alleging substantial non-compliance with the provisions of the Electoral Act because the smart card reader was not used in the accreditation process and that the election results should be set aside on the basis of the failure to use the smart card reader failed at the Supreme Court.
The Supreme Court, the lawyers said held for instance in Wike Ezenwo Nyesom vs Dakuku Adol Peterside and Others that INEC’s directives on the use of the smart card reader has not invalidated the use of the manual accreditation process, even if it was fraught with fraud.
According to Ahamba, ‘’it is left to the tribunal to determine whether INEC actually gave orders to the presiding officers to transmit the election result electronically to the collation centre or the commission’s server or not.
‘’The tribunal will determine precisely after it has listened to all sides and gone through all the available evidence adduced by parties to the suit. But it is trite law that if INEC gave unlawful instruction, the result so transmitted is unlawful and invalid,’’ he said.
In his views, Ismaila who practices law in Katsina and Abuja said: ‘’It is immaterial whether the presiding officer was instructed to transmit the election results electronically or not. We must determine whether such was governed by the new INEC Guidelines and Manual for the conduct of the 2019 general elections. Even then at his level, he cannot claim ignorance that the Electoral Act (Amendment) Bill which would have authorised it is yet to be signed to law.
‘’The Supreme Court judgement in Edward Nkwegu Okereke vs Nweze David Umahi and Wike Ezenwo Nyesom vs Dakuku Adol Peterside and others are enough lessons not to do things outside the law.
The apex court held in Wike’s case for example that the introduction of the card reader is certainly a welcome development in the electoral process. Although it is meant to improve on the credibility of those accredited to vote so as to check the incidence of rigging, it is yet to be made part of the Electoral Act.
To Abanika,‘’Section 52 (2) of the Electoral Act 2010 as amended which is still in operation prohibits the use of electronic voting machine for the time being in Nigeria, including the transmission of the electronic results.
He said: ‘’Section 65 of the same Electoral Act 2010 that dictates that the election results shall be transmitted manually by the presiding officer, yet that law which governed the conduct of the 2019 elections has not been repealed.”
The Electoral Bill which mandates the immediate transmission of voting results from polling units to collation centres is not yet operational, and as such, the transmitted result is invalid and any reliance place on it is null and void,’’ the lawyers maintained.
Dr. Ajulo, who is the founder of Egalitarian Mission in Africa, said that the PDP candidate (Alhaji Atiku Abubakar) has embarked on a fruitless venture with the results he claimed he got from INEC server.
Ajulo asserted that the result is not admissible in law, adding that ‘’if President Muhammadu Buhari had signed the amended Electoral Act, which included electronic transmission of results, Atiku would have had a valid case against INEC, but as it is, he cannot even tender the results at the tribunal.”
A Kaduna-based lawyer, Ismail Alahusa, agreed with the submissions of Ajulo.
He said that electronic transmission of result is not recognised by the Electoral Act and, therefore, the result Atiku claims he got from INEC server is “just a piece of paper.”
‘’He can’t use it at the tribunal because the law does not even recognize the transmission of result electronically. I want to believe that Atiku was not properly advised before approaching the tribunal to challenge the results of the election,” he said.
But Akinwumi Adisa, a civil rights activist said that Buhari refused to sign the amended Electoral Act Bill into law because of the fraud the APC and INEC perpetrated during the election.
He said: ‘’To every sane Nigerian, the last election is the worst in the history of polls in Nigeria. For every Nigerian that is seeking the good of this country, the last election was a sham and should be condemned by all.
‘’As for the result Atiku claimed he got from INEC server, even if it is not admissible in law, the whole world would be made to know the daylight robbery committed during the last election.’’
A Lagos-based lawyer, Emmanuel Majebi said: “It would not have been possible to transmit the results even if INEC had wanted to do so initially because there are areas that have no network and there are areas where the card readers did not work or were not used.
“The figures Atiku brought is very bogus. The combined votes for him and Buhari is more than the total accredited voters, no other candidates got a vote, no cancellation and no voided votes, that in itself has knocked out his INEC server’s claim. I will not want to say much on the issue because it is in court but I will say the electronic transmission of election results was an ideal that wasn’t possible.
“It was not backed by law. It was to be a parallel process but it didn’t work or INEC probably heard that some people had planned to compromise it and abandoned it without announcement. Transmission to the server of the number of accredited voters, does not translate to the number of votes cast!
Another Lagos-based lawyer Jude Omeire said: “I believe we should not be jumping the gun and we should allow the tribunal to determine the merits and demerits of the petition and the defence. I believe that the law empowered INEC to set guidelines for the conduct of the elections but the question is, can INEC guidelines override the constitution and the Electoral Act?
“It is the responsibility of the tribunal to scrutinise the submitted data, and if needs be as to its source and genuineness,” he said.