Some senior lawyers speak about Saturday’s presidential and National Assembly polls conducted by the Independent National Electoral Commission vis-a-vis the Electoral Act, writes ONOZURE DANIA.

On February 25, 2023, voters cast their votes in the presidential and National Assembly elections. Stakeholders have said that the Independent National Electoral Commission did not upload results from the polling units through the Bimodal Voter Accreditation System to the commission’s Results Viewing Portal as stipulated in the Electoral Act.

The election, though lauded by some observers including Commonwealth observers and the National Association of Nigerian Students, recorded violence in some states.

Speaking on the Electoral Act, a Professor of Law, Sam Erugo, SAN, said that INEC failed to conduct the presidential and National Assembly elections in compliance with the Act.

He stated that there was a report of substantial failure of presiding officers to transmit the presidential elections to the IReV from the polling unit as required by law including non-use of BVAS for accreditation in some states.

He noted that the act contrived the law, noting that results of the National Assembly poll conducted at the same time were uploaded to the portal.

According to him, one cannot understand the INEC Chairman, Prof Mahood Yakubu’s attempt to justify the act.

He said, “It stands to reason too, that the BVAS was also not used for the accreditation of some voters. First on the issue of accreditation, by Paragraph 18 of the INEC Regulations and Guidelines for 2023 Elections, verification of voters will be done using the bimodal voter accreditation system.

“The regulation provides that: ‘(a) In accordance with Section 47(2) of the Electoral Act 2022, a person intending to vote shall be verified to be the same person on the register of voters by the use of the Bimodal Voter Accreditation System (BVAS) or any other device approved by the commission, in the manner prescribed in these regulations and guidelines.”

“Again, by section 60(5) of the Electoral Act, 2022, on the conclusion of voting, ‘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.’

“The manner prescribed by the commission is found at Paragraph 38 of the INEC Electoral Regulations and Guidelines for the 2023 Election (not the Electoral Act) which provides that: “On completion of all the polling unit voting and results procedures, the presiding officer shall: (i) Electronically transmit or transfer the result of the polling unit, direct to the collation system as prescribed by the Commission. (ii) Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV), as prescribed by the Commission. (iii) Take the BVAS and the original copy of each of the forms in tamper [1] evident envelope to the registration area/ward collation officer, in the company of security agents. The polling agents may accompany the presiding officer to the RA/ward collation centre.’’

Erugo also stated that section 64 (4) of the Electoral Act made further provisions.

On his part, Mr Norrison Quakers, SAN, said the situation was not a ground for the nullification of the presidential election, adding that anyone who had a complaint should approach the court to address the issue since it cannot be done administratively.

He said the INEC chairman didn’t have the power to nullify the election. He said, “Unfortunately for us even though we are operating in a constitutional democracy, from all indications, we still have not come to terms with understanding the rules and understanding the law guiding, managing and directing electoral laws and affairs.’’

The senior lawyer added that the Act clearly states in section 47 (1) that a person intending to vote in an election shall present himself or herself with his voter card to the presiding officer for accreditation at the polling unit in the constituency in which his or her name is registered.

He further said that in other words, anyone who is participating in an election for the purpose of voting must first be accredited.

He added, “The accreditation is that you are registered to vote and the umpire must have your details to enable you to vote. (2) says that to vote the presiding officer shall use a smart card reader or other technological devices that may be prescribed by the commission, so in other words election management is vested in the INEC. For the accreditation of voters to verify, confirm or authenticate the particulars of the intended voter, in other words, when you present yourself to vote, INEC has to verify the details that you have if it corresponds with the details that they have in their own database and the document that they brought to the polling station.

“Mind you part of what INEC is expected to do is to publish the list of accredited voters in the polling units, so before you embark, you are meant to first check if your name is on the list before you present yourself with your details.

“(3) says where a smart card reader or any other technological device deployed for the accreditation of voters fails to function in any unit and a fresh smart card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if the commission is satisfied the result election in that polling unit will substantially affect the final result of the whole election and declaration of the winner in the constituency is concerned.’’

Quakers stated that the discretion was vested in the INEC, adding that, “If you have two or three people who have challenges with the machine and the machine did not function, the device that is put up perhaps rejects this particular voter or voters, if they are not in the majority, the election in that particular constituency will not be cancelled. And if you notice, the word used here is a constituency and not a polling unit.

“Section 149 of the Act about validation says notwithstanding any other provisions of this Act any defect or error arising from any actions taken by commission, in relation to any notice form or document made or given, or other things done by the official in pursuant of the provisions of the constitution or this Act or any rules made there under remain valid unless otherwise challenged and declared invalid by a competent court of law or a tribunal.

“So in other words all of these complaints are matters for the court because it talks about validation and mind you even the regulations that we are referring to are also not cast in iron. The regulation is merely to guide INEC in having effective and smooth election management and this you will also find in section 148 of the Act.

“Let us be sincere with ourselves, unfortunately, even the foreign observers that came around said that the election, had several hiccups and that it was not done with substantial compliance with the best standards of conducting elections.

“Now for some of us who are in this country, comparing this election with others that we have had, it falls short of the standard that we have been exposed to. Anyone who is aggrieved over the outcome of this election, section 149, which I quoted, empowers the person to seek nullification. There are grounds for seeking the nullification or setting it aside. One of the grounds is non-compliance with the provision of the Act, so if you find that there has been substantial non-compliance you go to the election tribunal to challenge it.

“Collate your evidence and take it to the election tribunal. This is exactly the election petition between (Gboyega) Oyetola and Osun State Governor (Ademola) Adeleke. If you have facts that the court can act upon to nullify the election, then approach the tribunal instead of heating up the system. Can the chairman alone nullify the election, the answer is no.

“Section 134 of the Act provides for grounds for presenting a petition. (1) an election may be questioned on any of the following grounds, (a), a person whose election is questioned was at the time of the election not qualified to contest an election.

“(2) the election was invalid by reason of corrupt practices or non-compliance to the provision of this Act. So you can see that the complaints of some of the political parties border on corrupt practices and non-compliance, in terms of the uploading of results.’’

He further said, “In respect to (1) (a), a person is deemed to be qualified for an elective office and election shall not be questioned on grounds of qualification if with respect to a particular election question he makes the applicable requirement. The grounds of presentation of the petition under section 134, anyone that is aggrieved can come under any of the sections more particularly section 134 (b). We can’t afford another round of crisis, we have suffered for too long,” he stated.

Similarly, another senior advocate of Nigeria, Mr Yemi Candide-Johnson, said that the failure to upload the results of the presidential poll results from polling units through BVAS to the IReV was not enough reason to invalidate the presidential election because the commission’s regulations were not law.

Also, another lawyer, Mr Babatunde Awe, said section 134, (b), stated that where there was non-compliance with the Act, in the case of non-uploading of results to the INEC portal, the law had been breached.

Awe stated, “When the law says you should do something in a mode of interpreting status it is strict; when the law provides a way of doing something and that law is clear, there is no other way that you must do it.’’

He noted that if a Nigerian law indicates the left-hand side as the proper way of driving on the road and you are driving on the right-hand side, you have violated the law already because there is a law in the various traffic laws.

“When there is a law and things have been done, not in accordance with the law guiding or stipulating the manner for doing those things, that in fraction could count against the person who has committed the infraction.

“In Section 64, when it comes to issues of the veracity of the result or where there is a complaint from any of the party agents, section 64 (6), says you have to look at the BVAS, and other aspects, so when you come and they are uploading results in hard copy and those results have not been verified using the medium that we were assured that law has said should be used, then there is a problem because the results cannot be verified.”