Clause 52

 Nothing in Nigeria’s recent history was as controversial as Clause 52 of the Electoral Act (Amendment) Bill 2021 presently being perfected by the National Assembly ahead of transmission to President Muhammadu Buhari for his assent. Both chambers of the national legislature passed different versions of the controversial clause pertaining to electronic transmission of poll results by the Independent National Electoral Commission (INEC) before going on vacation penultimate weekend. Those different versions are now to be harmonised before being passed on for presidential assent.

The Senate approved a version of the clause that conditioned e-transmission of results by INEC on the electoral body first getting clearance from the Nigerian Communications Commission (NCC) and obtaining formal approval from NASS before proceeding. The clause as signed off by the red chamber reads: “The commission may consider electronic transmission provided the national network coverage is adjudged to be adequate and secure by the Nigerian Communications Commission and approved by the National Assembly.” It was a long road for the Senate getting to that point. Its Senator Kabiru Gaya-led Committee on INEC had in its report recommended that the electoral agency be allowed to decide where and when practicable for it to e-transmit election results. But the chamber, after a tumultuous debate, voted 52 members to 28 – with Gaya voting against the report of his own committee – to adopt the amendment subjecting INEC’s deployment of e-transmission of results to the pleasure of NCC and NASS. 

Proceedings at the House of Representatives were more tumultuous, but the chamber eventually upheld the recommendation of its Aisha Dukku-led Committee on Electoral Matters that INEC be allowed the discretion to transmit election results through any procedure it deems apt. The clause as finally passed by the green chamber reads: “Voting at an election and transmission of result under this bill shall be in accordance with the procedure determined by the commission.” The route to that resolution was stormy, with some house members getting down to fisticuffs along the way. On the first day of deliberations, Deputy Speaker Ahmed Wase who presided at proceedings hit the gavel twice on ‘nay’ responders when the ‘yes’ chorus was perceived more resounding. Amidst ensuing chaos, plenary was adjourned and NCC Executive Vice-Chairman Professor Umaru Dambatta invited to testify on the feasibility of e-transmission of results. INEC Chairman Professor Mahmood Yakubu was as well invited, but his invitation was subsequently rescinded.

In its presentation to the house the following day, NCC did not raise much hopes about the prospects of e-transmission, saying its recent study showed there was network coverage for only about 50 percent of polling units across the country. Executive Commissioner (Technical Services) Ubale Maska, who represented Dambatta, explained that election results could be electronically captured offline in an area with no network coverage and then transmitted by physically moving to a network-covered area, but that this did not compare with direct transmission from source. He also said the NCC could not guarantee that e-transmission of election results couldn’t get sabotaged by hackers. “No system is safe from hacking. Hacking is always a possibility,” Maska stated. 

“(Clause 52): The version passed by the Reps has more fidelity with the Constitution and should be adopted as the harmonised version.”

The cold feet shown by NCC was curious, though, because INEC affirmed it has capacity for e-transmission at the 176,846 polling units nationwide and that capacity was verified by a joint technical panel of telecoms stakeholders of which NCC was co-convener. The agency’s spokesman, INEC National Commissioner Festus Okoye, told Sunday PUNCH newspaper: “The joint technical committee constituted by the commission and the Nigerian Communications Commission and made up of telecommunication operators met on 9th March 2018, and the consensus was that the requirements for electronic transfer of results proposed by INEC is practicable. The meeting, therefore, agreed that the solution that INEC wants to deploy is feasible. We have the assurance of service providers that they have provided similar technological solutions to other agencies and have the capacity to deploy technology to cover a few blind spots.” In another appearance on Channels Television, Okoye restated that INEC has the capacity for e-transmission of results even from remote areas of the country. “We have uploaded results from very remote areas, even from areas where you have to use human carriers to access. So, we have made our own position very clear that we have the capacity and we have the will to deepen the use of technology in the electoral process,” he said, noting however that the commission would be guided by powers granted it by the Constitution and the Electoral Act. He had told Sunday PUNCH that INEC would “continue to implement the provisions of the Electoral Act to the extent of its consistency with the Constitution, as the Constitution is the fundamental law of the land.”

And that is the crux of the matter. Consistency with constitutional provisions should be the litmus test of Clause 52 of the Electoral Act amendment passed by the NASS, in particular the Senate’s version. Both Sections 78 and 118 of the 1999 Constitution (as Amended) stipulate: “The registration of voters and the conduct of elections shall be subject to the direction and supervision of Independent National Electoral Commission.” Section 158(1) of the same law lists INEC among statutory bodies that “shall not be subject to the direction or control of any other authority or person.” And Third Schedule, Part 1, Section F, Clause 15(a) provides that INEC shall have power to “organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a state, and to the membership of the Senate, the House of Representatives and the House of Assembly of each state of the federation.” The combined effect of these constitutional provisions is the independence of INEC in conducting polls. By subjecting the electoral body to NCC’s clearance and approval by NASS before it would be able to deploy e-transmission of results for elections, the Senate infringed this independence and fell at odds with the grundnorm law. The version passed by the Reps has more fidelity with the Constitution and should be adopted as the harmonised version of Clause 52 to be submitted for presidential assent. Otherwise, the President should decline assent or he himself would be signing on in legal futility.

Not that the lawmakers didn’t have reasonable grounds for phobia against e-transmission of results; ignore partisan capital that some have sought to mine from the controversy. Votes are the currency political gladiators transact with, and it is natural that the urge to shield these from potential infractions would be in overdrive. (Ironically though, it is the same votes being infracted by ballot snatching, results falsification and other rigging methods for which Nigerian politicians are notorious.) The apparent fear is whether some votes would count should there be network failure or lack of coverage in certain areas. In the desperation that characterises Nigerian elections, some gladiators would hold any glitch in network coverage and results transmission to be a deliberate ploy intended to put them at a disadvantage. That would make elections even more acrimonious. Besides, some people simply can’t trust technology totally, and that isn’t peculiar to Nigerians. In Germany, voting is till date manual because a referendum was called and citizens voted to reject electronic voting. So, there are legitimate grounds for phobia.

But the opportunity cost of holding off e-transmission should be a guide. Compromised human agency is a greater threat to credibility of elections than dispassionate technical glitches that can be dispassionately redressed. Actually, beyond rigging attempts by players themselves, the manual procedure has proven susceptible to third party sabotage. During the 2011 presidential poll, collation was protractedly stalled at the national collation centre because wild rioting broke out in Kaduna and other areas, preventing some INEC collation officers from getting to Abuja from their respective station with the paper trail. Meanwhile, that delay offered an opening for some party agents present at the national centre to foment disputations aimed at further muddling the entire process. The 2015 Godsday Orubebe ‘storm,’ also at the national collation centre while the paper trail of results from Rivers State was being awaited, is fresher in memory.

The instantaneity of e-transmission would eliminate such shenanigans to derail the will of voters. All considered, its downsides are less injurious than the hazards of manual procedure of results transmission, and INEC should be allowed to determine what works and where, as the Constitution envisages.