‘Why INEC must follow its rules in elections’

Jacob Dipo Famodimu Esq is a specialist in general civil litigation and arbitration, election petition matters, and taxation. He is also a senior associate with Advocaat Law Practice and a Notary Public. In this interview, he explains why INEC adhering to its rules will enhance trust in election and on issues around elections. Excerpts:

What is your view about the general conduct of elections in Nigeria in the past?

Unlike the 1993 elections, which was seen as the freest and fairest election to date in Nigeria, successive elections under the 4th Republic have been marred with manipulation, voters’ intimidation, vote buying, violence, and all sorts of electoral malpractices. With the transparency and legitimacy of the Presidential elections of February 25th 2023 now being challenged, it behoves on the Independent National Electoral Commission to ensure greater transparency in subsequent elections, particularly with the functioning of the Bimodal Voter Accreditation System (BVAS) and collation and transmission of electoral results. INEC must ensure that it restores the public confidence in the democratic process.

How do we get citizens to trust the democratic process?

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Citizen’s trust in the electoral process is vital in a democratic society like ours. Due to the experiences of the past elections, most Nigerians believe that their votes do not count. INEC, the media, the judiciary, and the civil society all have roles to play in building citizens’ trust in the process. INEC as the election management body must display a high level of integrity for the electoral process to gain public trust. The electorate must have confidence in the electoral process and we must ensure that the votes cast during any elections count and not have to resort to the courts and leave it to a few judges to determine the people’s wishes. The citizens must indeed see INEC as an independent, neutral and uncompromised body. There is also the need for continuous voter education. Voters must be provided with adequate information about political parties, policies, candidates and the election process itself to make informed choices. So, you can see that the media is also a key actor in democratic elections.

How do we enhance election conduct in Nigeria considering the disaffection with the just concluded presidential elections?

The disaffection with the just concluded presidential election is caused by the belief by many in some quarters that INEC failed to fulfill its promise to upload the results electronically in real-time. Sections 50(2) and 60(5) of the Electoral Act, 2022 provide for the electronic transmission of results. Specifically, Section 60(5) provides that the presiding officer shall transfer the results, including the total number of accredited voters and the results of the ballot in a manner as prescribed by INEC. In furtherance of the provision in the said Section 60(5), INEC has prescribed in Clause 38 of the INEC Regulations and Guidelines for the Conduct of Elections, 2022 which makes it mandatory for the presiding officer to electronically transmit or transfer the result of the Polling Unit, direct to the collation system. The Presiding Officer is required to use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV).

For us as a nation, to enhance and improve election conduct in Nigeria, moving forward, INEC must be seen by the public to obey its guidelines otherwise disaffection with elections will continue. Complying with the Constitution, Electoral Act 2022 and INEC guidelines, the provision of adequate security for the electorate will reduce or curb the incidence of mutilation and falsification of result form EC8A in the course of transfer of results to the INEC or collation centre which has been the experience in the past. The issue of logistics and transportation of election materials must also be addressed. It is not appropriate that the election at the polling units does not commence at the prescribed time as expected. Voting outside of the INEC prescribed times makes the process more susceptible to manipulation and intimidation of voters.

Are there areas that you want reforms in the electoral or judicial process?

There are significant amendments introduced by the Electoral Act 2022 to address some of the issues we encountered in the past. We now have Bimodal Voters Accreditation System (BVAS) deployed for the accreditation of voters to curb the incidence of over-voting or voting by proxy. We also have a provision for electronic transmission of results. In addition to the amendments stated above, what we may be looking forward to in the nearest future is a complete electronic voting system that would take cognizance of biometric registration, electronic accreditation of voters, electronic voting, and electronic collation and transmission of results.

The introduction of an electronic voting system will increase the trust of people in the electoral process, reduce human errors, and the threats of negative human intervention in result management such as “result jacking” and wilful, fraudulent mutilation and falsification of results.

INEC Guidelines and Regulations 2022 on electronic transmission can easily be amended without necessarily passing through the legislative process with INEC reverting to its previous stance not to transmit results electronically. Thus, there is the need to incorporate clause 38 of the INEC Guidelines on electronic transmission of results into the Electoral Act such that it cannot be easily amended. Also, there must be a provision for transmission of results.

What are the kinds of incidents that could cause a postponement under the law?

There are a lot of factors that can lead to the postponement of the election and one of the factors is insecurity. When you cannot guarantee the protection of lives and properties, that might lead to the postponement of the election. The election can be postponed if there aren’t sufficient funds to cater for the expenses such as logistics and operational expenses to be incurred by the Electoral umpire for the Election. As we are all aware, INEC postponed the Governorship and House of Assembly Election slated for 11th March 2023 to 18th March 2023 due to the need to reconfigure the BVAS. This postponement was declared after INEC was granted an order by the Appeal Court hearing the Presidential Election petition to reconfigure the BVAS for the gubernatorial elections.

What do you see as the role of the judiciary through the electoral process?

The judiciary is one of the three arms of government. The role of the judiciary in any democracy is to interpret and apply the law. The judiciary is also responsible for providing impartial adjudication of disputes between the state and individuals, between individuals, and between different levels of government within the state. Where the provision of the law is ambiguous or its literal interpretation leads to absurdity, the judiciary will make a pronouncement that best captures the intention of the draftsman. For instance, there is an ongoing debate and divergent opinions on whether a candidate who has the highest number of votes cast at the election and has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the federation can be declared winner of a presidential election where such a candidate does not have one-quarter of the votes cast in the Federal Capital Territory, Abuja. The judiciary may be called upon to determine any dispute that may arise from the diverse interpretation of section 134(2)(b) of the 1999 Constitution.

The following matters have been classified by the courts as pre-election matters which the Federal High Courts will have power to adjudicate upon: (1)nomination of a candidate (2) double nomination of a candidate (3) disqualification of a candidate (4) wrongful substitution of a successful candidate’s name by the Electoral Body (5)wrongful omission of a successful candidate’s name by the Electoral Body (6) complaints about the conduct of primaries (7) false declaration on oath about particulars of a candidate. See MODIBO v USMAN (2020) 3 NWLR (PT. 1712) 470 @ 500 –515, GBILEVE v ADDINGI (2014) 16 NWLR (PT. 1433) 394.

Post-election cases will centre on aggrieved parties approaching the court/election tribunal to seek redress in the aftermath of an election on any of the following grounds as provided in section 134 of the Electoral Act 2022 as follows: “134(1) An election may be questioned on any of the following grounds: a person whose election is questioned was, at the time of the election, not qualified to contest the election; the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; or the respondent was not duly elected by the majority of lawful votes cast at the election.”

There have been allegations that lawyers and judges turn the law on its heads in the determination of election disputes, what is your take?

I will say that is the perception of people but may not necessarily be the truth. This perception is partly because most people do not understand the position of the law on election matters and are surprised when the decision of the court does not favour them. Also, I will like to say that where an aggrieved party is not satisfied with the decision of the lower court or such judgment is erroneous (i.e., entered per incuriam), there is a provision for appeal. The Supreme Court is the highest court of the land which can decide and later overrule itself in another matter with similar facts.

What is your view on the process and outcome of the presidential and National Assembly elections?

My view is that the election was conducted with disregard to salient provisions on electoral laws and INEC guidelines, which made the presidential polls susceptible to manipulation and irregularities. The result was not transmitted and uploaded on the IREV portal in real-time. INEC’s excuse was that there were network glitches, hence the BVAS was unable to transmit results at the appropriate time. INEC has announced the winner and the aggrieved candidates are already challenging the result at the presidential election tribunal. We await the outcome of the decision of the courts which all contestants will be bound to accept.