Card Readers and Supreme Court judgments

For now, the Electronic Card Reader (ECR) cannot be used beyond its basic objective and purpose – to electronically authenticate owners of Permanent Voter Cards (PVCs) and eliminate multiple voting. The Nation Legal Analyst OLARINDE YESUFU, who believes the Supreme Court properly interpreted the law by upholding claims that ECR cannot supplant voter register, has urged the Independent National Electoral Commission (INEC) to push for necessary amendments to the Electoral Act.

One significant innovation in the 2015 general election was the introduction of Card Reader technology by the Independent National Electoral Commission (INEC). INEC card reader machine is a portable electronic device designed and configured to authenticate Permanent Voter Cards (PVCs). As a result of the novelty of the new technology in Nigeria’s electoral system, manifold legal issues on the use of the technology characterised many petitions before various election petition tribunals. The legal issues in turn generated different interpretations and conflicting decisions of the tribunals and the Court of Appeal.

In the last few weeks, the Supreme Court has been busy churning out judgments that have now streamlined and sanitised the chaotic judicial situation engendered by the irreconcilable decisions of the election tribunals and the Court of Appeal over the use of card readers at the 2015 general elections.

Between the law and sentiment

The Supreme Court has taken a definite position, holding that, as the law stands today, card readers cannot substitute, overthrow or replace voter registers. Its function, the apex court categorically declares, is simply to authenticate owners of voter cards, and no more. The point of emphasis here is the phrase”as the law stands today”. By this, the Supreme Court discreetly draws attention of the legislature to the deficiency in the extant electoral law. Inherently, the phrase also indicates that the law may change tomorrow.

Many people expected that the Supreme Court should go beyond what the law stipulates today. It is often forgotten that the Supreme Court is not the legislature. Its duty is to interpret the law and apply it to the facts presented. It does not over-step its bound and trespass upon sacred province of the legislature. It is the constitutional responsibility of the legislature to enact laws and amend or repeal them. The court can only draw attention to the areas of the law where amendment is required or desirable. This is simply what the Supreme Court has done in respect of card readers.

The principled stand of the Supreme Court on the use of card reader technology affected the decisions of the election tribunals and the Court of Appeal, so much so that many of such decisions were set aside and over-turned. From the authoritative pronouncements of Their Lordships at the apex court, the supremacy of voters’ registers over card readers in matter relating to accreditation of voters has now been established. Clearly, the decisions of the Supreme Court on this point would appear not to have gone well with many Nigerians, who base their arguments more on sentiments than reason and law. Consequently, the Supreme Court has been under some attacks in the past few weeks. Such attacks have been scurrilous. People continue to rain abuses on the court with derogatory and contemptuous remarks. A columnist recently described the Supreme Court as “Supreme Curse” to press home his disagreement with the court’s decisions on the use of card reader machines.

Whatever opinion anybody may hold about the Supreme Court, it must be acknowledged that it is a great institution that ought not to be desecrated, as the court plays very important roles in our constitutional democracy. First, as the highest court in the land, it is the court of last resort for those looking for justice. Therefore, any decision of the Supreme Court has a profound impact on the society. Second, due to its power of judicial review, it plays an important role in ensuring that each branch of government recognises the limit of its power. Third, it protects civil rights and liberties of the citizenry by striking down laws and acts that violate the fundamental values common to all.

The basic idea of introducing the card reader machines by INEC was to ensure credible, transparent, free and fair elections. It is believed that the use of card readers would prevent impersonation, over-voting, stuffing of ballot boxes with thumb-printed ballot papers, under-aged voting, multiple voting, and other electoral vices that were prevalent in previous elections. Many columnists and commentators have said that the Supreme Court rejected the use of card reader machines. Nothing can be farther from the truth. In none of the judgments of the Supreme Court has the use of card reader machines been rejected.

Card reader cannot supplant voter register

As a matter of fact, the Supreme Court in many of its judgments recognises and acknowledges the use of card reader machines. The court commends INEC for “…the innovation of card reader machine to bolster the transparency and accuracy of the accreditation process and to mandate the democratic norm of ‘one man, one vote’ by preventing multiple voting by a voter.” (Per Kekere-Ekun, JSC., in Nyesom v. Peterside& Ors. SC.1002/2015. Delivered on 12th February, 2016). The commendation of INEC by the Supreme Court, does not, however, derogate from its finding that card readers cannot supplant voters’ registers. There lies the grouse of many people with the judgments and reasons for the decisions of the apex court.

Fundamental errors

Putting the whole matter in its right perspectives, it will be noted that INEC, and not the Supreme Court, was the cause of the controversies surrounding the use of card reader technology in the 2015 election. In applying the use of the card readers, INEC, regrettably, fell into two fundamental errors. First, it fails to secure a legislative backing for its application. No explanation has been offered for this grave error. Perhaps, we are all culpable. This unpardonable lapse happened before our own eyes and none of us raised any eye-brow. What INEC did was to rail-road card readers into the 2015 election processes without any constitutional or legislative backing! In spite of this, the Supreme Court has been liberal in interpreting the law in favour of the use of card readers. INEC would appear to have owned up to this flaw as the electoral body is now thinking of approaching the National Assembly to carry out necessary amendments to the Electoral Act, as announced by its Chairman recently. Second, INEC erroneously projects the card reader technology as a means of accreditation. Of course, it is not. The Supreme Court has been emphatic on this that it is not.

The first challenge to the legitimacy of card readers came up in All Progressives Congress and Agbaje & Ors. The real issue in that case was whether or not irregularities occasioned by the use and/or non-use of card readers can constitute grounds for questioning an election. Objection was raised before the trial tribunal against paragraph 13 (b) of the petition in which it was alleged that there were so many irregularities in respect of the use of card readers during the governorship election in Lagos State, as many polling units did not have card readers or did not make use of card readers even when available. The trial tribunal overruled the objection, holding that a challenge to an election on ground of irregularity is squarely within the confines of the Electoral Act. On appeal to the Court of Appeal, the court set aside the decision of the trial tribunal on the point which approved paragraph 13 (b) as a competent ground. From the decision of the Court of Appeal, it has been made clear, long before the decisions of the Supreme Court in Nyesom v Peterside (Rivers], Emmanuel v Umana [Akwa Ibom] and Okereke v Umani [Ebonyi) petitions that malpractices occasioned by card readers cannot constitute grounds upon which an election may be challenged. Interestingly, no noise was generated as a result of that landmark decision, yet it was devastating enough for card reader technology. The decision of the Court of Appeal in All Progressives Congress and Agbaje & Ors (2015) CAR 23) establishes the long-standing principle that no ground of an election petition can be formulated outside the ones prescribed under section 138 (1) of the Electoral Act 2010 (as amended). In so far as malpractices occasioned by card readers do not form part of such grounds, they cannot stand. Ogbuinya, JCA who delivered the lead judgment in that case puts it more succinctly:

“The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria…The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the Manual for Election Officials, 2015: Chapter 2, pages 35-42. Put the other way round, the extant Electoral Act 2010, as amended, which predates the concept, is not its parent or progenitor. Since it is not the progeny of the Electoral Act, a ground in a petition, fronting it as a ground to challenge any election does not have its blessing, nay Section 138(1) of it. Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election it does not qualify as one.”

Card reader not yet accommodated in

Electoral Act 2010

Although no reference is made by the Supreme Court to this outstanding pronouncement of the Court of Appeal, the apex court, nevertheless, sustains the basic principle that INEC Guidelines or Manual for elections cannot withstand or override a legislative enactment like the Electoral Act 2010.

What indeed came before the Supreme Court for determination in most of the cases was the effect of the provisions of INEC Guidelines and Manual on voters’ registers, as against the provisions of the Electoral Act 2010 (as amended). The Supreme Court has held that card readers cannot supplant voter registers. In Okereke v Umani & 2 Ors, (SC.1004/2015. Delivered on 5th February, 2015) His Lordship, Nweze, JSC., states as follows:

Indeed, since the Guidelines and Manual (supra), which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said card reader cannot, logically, depose or dethrone the Voters’ Register whose juridical roots are, firmly, embedded or entrenched in the self-same Electoral Act from which it (the Voter Register), directly, derives its sustenance and currency.

Thus, any attempt to invest it (the Card Reader Machine procedure) with such overarching pre-eminence or superiority over the voter register is like converting an auxiliary procedure – into the dominant procedure – of proof, that is, proof of accreditation. This is a logical impossibility.

In an earlier decision of the Supreme Court, in Shinkafi & Anor v Yari & 2 Ors (SC.907/2015. Delivered on 8th January 2016) His Lordship, Okoro, JSC., opines:

“My view on this is that a principle of law that is well established cannot be abolished simply because an Appellant failed to prove his case in accordance with those principles. My understanding of the function of the Card Reader machine is to authenticate the owner of a voter card and to prevent multi-voting by a voter. I am not aware that the Card Reader machine has replaced the voter’s register or taken the place of statement of result in appropriate forms.

Now, coming to the issue of accreditation, card readers, as stated earlier, were not designed by INEC to accredit voters. And, it would be wrong for the commission to create the impression to the general public that it was meant for that purpose. The Supreme Court is, therefore, correct to confine card reader machines to their basic objective and purpose: authenticate owners of voter cards.

The concept of ‘election’ denotes a process consisting of accreditation, voting, collation and declaration of results. The importance of accreditation in an election process cannot be over-emphasized. It is a pre-requisite for a valid vote in the conduct of an election. Before a vote can be validly returned, there must have been proper accreditation of the voter. Indeed, the Court of Appeal in Fayemi & Anor. v Oni & Ors (2005 All FWLR (Pt. 265) 1047 ) held that a ballot without accreditation cannot be a valid ballot paper, and without a valid ballot paper there can be no valid election. Any vote returned without an accreditation for a particular voting unit such votes cannot be said to have been obtained through due electoral process. The importance of accreditation was further stressed in that case, where the Court of Appeal (which was the final court in that case) nullified the election of some wards for lack of accreditation.

Section 49 of the Electoral Act 2010 (as amended) describes the process of accreditation in a most explicit way as follows:

49 (1). A person intending to vote with the voter’s card shall present himself to a presiding officer at the polling unit in the constituency in which his name is registered with the voter’s card.

(2). The Presiding Officer shall, on being satisfied that the name of the person is on the register of voters issue him with a ballot paper and indicate on the register that the person has voted.

From the provision of Subsection 2 above, it is clear that registers of voters form the fulcrum upon which proper accreditation is predicated, and not the card reader machines. Simply put, accreditation entails the presiding officer ensuring that the name of the prospective voter is in the register before a ballot is issued and marking of the register to indicate that he has voted. Where registers are not marked against the names of voters contained there, it would be assumed there was no accreditation. If votes are returned under such a circumstance, it would be concluded that such votes were scored through a flawed process. The corollary is also correct. Names that are marked on voters’ registers, prima facie, suggest that such voters have been accredited until the contrary is proved. And, of course, the onus rests squarely on the petitioner to establish the fact that such voters have not been accredited.

Criticisms misdirected at apex court

The Supreme Court received the most abusive remarks over its decision in Nyesom v Peterside & Ors (Rivers). A careful reading of the judgment of the court shows that the criticisms were uncalled for and unjustifiable. A major aspect of the case of the respondents (Peterside & others) before the tribunal was that only 292, 878 voters were accredited and the appellant (Nyesom) was returned as the winner of the election with 1,029, 102 votes. There were allegations of non-accreditation, over voting and disenfranchisement by the respondents. They further alleged that these constituted non-compliance with the Electoral Act.

In order to prove over voting, the law is settled that a petitioner must tender the voters’ registers, statement of results of the affected polling units. He is also required to relate the documents to the specific area of his case in respect of which the documents are tendered. He is further bound to show that the figure representing the over voting if removed would result in victory for the petitioner. The Supreme Court, however, found that both the trial tribunal and the Court of Appeal placed reliance on the testimony of PW49 (an Assistant Director, ICT with INEC ) and Exhibit A9 (the Card Reader Report) in proving over voting. Here is what the Supreme Court said about this:

It is worthy of note that at the point of tendering Exhibit A9, PW49 an Assistant Director ICT with INEC, acknowledged that the report was in fact prepared by one Mrs. Eneua (sic: Nnenna Essein), a member of staff of her unit. She admitted under cross examination that she was not in Rivers State for the election. She stated that the machines were in Port Harcourt. She did not participate in any stage of accreditation of voters. She was certainly not in a position to testify as to how the card readers functioned during the election in Rivers State. In Belgore vs Ahmed (supra), this court emphasized the fact that where the maker of a document is not called to testify, the document would not be accorded probative value, notwithstanding its status as a certified public document.”

Kekere-Ekun, JSC.,pp 43-44.

Predictably, the evidence of PW49 and Exhibit 9 cannot be conclusive proof of accredited voters without the voters’ registers of the affected units. In order to prove non-accreditation and/or over voting, the respondents were bound to rely on the voter registers in respect of all the affected local government areas. The Supreme Court found that the voters’ registers in respect of 11 out of 23 local government areas were tendered. Worse still, they were tendered from the Bar as Exhibits A271 –A281. Furthermore, no attempt was made to link them with the Card Reader Report (Exhibit A9). They were documents that were merely dumped at the Tribunal. Clearly, over voting or non-accreditation cannot be said to have been proved in the circumstances.

The attempt to overrate or upgrade card reader machines above voters’ registers or undermine the importance of voter registers at the expense of card readers is grossly misplaced. Voter registers are already entrenched in Nigeria’s electoral jurisprudence beyond the point that they can be jettisoned with a wave of hand. I should be permitted to quote His lordship, Nweze, JSC., on this point again:

Prior to the authorisation of its use by the Guidelines and Manual (supra), the Electoral Act, 2010 (as amended), in sections 49 (1) and (2), had ordained an analogue procedure for the accreditation process. As a corollary to the procedure outline above, section 53 (2) of the said Act [that is, the Electoral Act] enshrined the consequences for the breach, negation or violation of the sanctity of the actual poll sequel to the consummation of the accreditation procedure in section 49 (supra). With the advantage of hindsight, INEC, pursuant to its powers under the said Electoral Act, authorised the deployment of the said Card Readers.

Even with the introduction of the said device, that is, the Card Reader Machine, the National Assembly, in its wisdom, did not deem it necessary to bowdlerise the said analogue procedure in Section 49 (supra) from the Act so that the Card Reader procedure would be the sole determinant of a valid accreditation process. Contrariwise, from the Corrigendum No 2, made on March 28, 2015, amending paragraph 13 (b) of the Approved Guidelines, it stands to reason that the Card Reader was meant to supplement the Voter Register and was never designed or intended to supplant, displace or supersede it.

What INEC should do

In the light of the foregoing, the way out is not in abusing, cursing or denigrating the Supreme Court for doing its job. It is high time we stopped passing the buck. In any event, the buck, in this matter, stops at INEC’s table, who should now take the bull by the horn by approaching the National Assembly to amend the Electoral Act appropriately; that is, if it desires to continue the use of the card reader technology in future elections.

By OLARINDE YESUFU

Source: thenationonlineng