With the impending 2023 elections in Nigeria, there has been a lot of house cleaning concerning reform and amendments to legislation. These provisions get updated with consideration; to globally acceptable best practices, for the goal of strengthening democracy through a just electoral process.
The next on the laundry list was an amendment to the Electoral Act 2010. It is not unexpected as the Act is intermittently modified to improve its efficiency. The Electoral Act (Amendment) Bill 2021 (The Bill) got passed on 16th July 2021 after a few failed attempts by the National Assembly.
However, 157 out of the 158 clauses contained in the Bill were overshadowed by Clause 52. That became the source of contention for members of the House as it gave authority to the Independent National Electoral Committee (INEC) to adopt electronic voting and transmission of results as it deemed fit.
Nigerian lawmakers have mostly been on opposing sides on this e-voting affair. In a nation where allegations of rigging and malpractice trail elections, one would wonder why the adoption of e-voting and e-transmission of results gets met with heavy resistance? Like everything, this system is not without its shortcomings like poor connectivity though it reduces incidents of ballot box disappearances and election result manipulation that we have experienced in the past.
Can INEC handle the capacity?
Nigeria is yet to fully embrace voter technology in its electoral processes. Voter technology has evolved over the years; its transition to the use of the Electronic Voters System in 2011 regarded as a step in the right direction towards the curtailing of electoral malpractice. The peak of technological advancement in this area was in 2015, where Smart card readers for voter identification got introduced.
Though a little late to the occasion, INEC conducted its first election using this technology in 2015. Reports of technical difficulties and poorly trained ad-hoc staff affected this costly investment by the INEC during that defining election. However, observers correspondingly affirmed “no systemic subversion of the voting process.” As an imperfect organisation, INEC’s response to the difficulties faced by the current technology has been good by Nigerian standards, and they can only get better with frequent use.
A failure to solve the result collation problem will render even most cutting-edge innovation futile. The clause recommends INEC reserve the power to transmit results electronically where applicable at its discretion. The House descended into a frenzy following the reading. The commotion led to the invitation of the Head of the National Communication Commission (NCC) to determine its feasibility, the NCC determined that 43% of the country was under effective coverage, which lawmakers claimed informed the amendment.
Described as merely a “change in the nebulous wording” by Senate Spokesman, Senator Surajudeen Basiru, the clause now provides that INEC may only consider the e-transmission of results on the condition that the NCC adjudges the National Network Coverage to be adequate and secure. We could say that this ‘simple’ word change reduces the independence of INEC by making their decision-making subject to the permission of another commission.
The Constitution separates and defines the powers of the National Assembly and INEC for a reason, so an ordinary legislative provision that interferes with this arrangement may be ineffectual without a constitutional amendment. The NCC is simply a federal agency vested with regulating communications services and not electoral responsibility. It may not be appropriate for it to have the authority to exercise such power over a Commission like INEC backed by Constitutional Power.
Section 78 of the Constitution was mentioned a few times as it states, “the registration of voters and conduct of elections shall be subject to the supervision of INEC”. Electronically transmitting results may be said to be part of the conduct of elections which indicates a conflict. The Electoral Act also gives authority to INEC to ensure the electoral process is fair and that votes get counted the right way.
Conversely, it has been recognised that Section 4 of the Constitution empowers the National Assembly to make laws for the good governance of Nigeria. One could argue that inviting the NCC to give the viability of this clause in action based on analysis of the current infrastructure was in good faith. Former President, Committee for the Defence of Human Rights, CDHR, Malachy Ugwummadu shared this view. A case could also be made for the National Assembly’s legislative powers that apply to the amendment or repeal of the Electoral Act.
Hope for the future
A percentage of the population is holding out hope that the amendment would still be fine-tuned before the final version is produced. Professor Sam Erugo, SAN is one of them as he expressed “there is still room for expected positive adjustment at the stage of harmonization of the Bills as passed by both houses of the National Assembly”.
Unfortunately, this has disintegrated into a political matter where lawmakers put party loyalty above the democratic process of the country. That may explain why the Chairman of the Senate Committee INEC (who recommended the clause) would vote against his report. Are there valid concerns that should get addressed? Yes, but the elections are not until 2023 and with the lessons learnt from the Ondo and Edo Elections in 2020, INEC has enough time to prepare and apply them to the Anambra elections happening in November this year.
The experience from these elections should equip them on how to handle foreseeable challenges. Transmission of the results in real-time would reduce delays and electoral fraud. Do you think the country is ready for the e-transmission of election results?