Femi Falana (SAN)

In December last year, the Supreme Court upheld all the disputed governorship elections conducted by the Independent National Electoral Commission on April 11, 2015 and undertook to adduce reasons for each of the judgments at a later date.

Last month, the court announced the reasons for the decisions. Essentially, the apex court vehemently disagreed with the judgments of the Court of Appeal which had set aside election results which emanated from manual accreditation instead of the card reader machines prescribed by the INEC. For not validating the use of card reader for voter accreditation some commentators, including lawyers, have criticised the verdicts of the apex court. The criticisms which have greeted the judgments are not unexpected given the controversy which trailed the use of card reader for the elections.

Although the National Assembly had approved fund for the purchase of the card reader machines in the Appropriation Act of 2014, the then ruling party wanted to use its control of the federal legislature to discredit the electronic device. Hence, the immediate-past chairman of the INEC, Prof. Attahiru Jega, was summoned to the Senate to justify the introduction of the card reader for voter accreditation. In taking up the challenge, Prof. Jega demonstrated the use of card readers and its capacity to eliminate electoral fraud perpetrated at the accreditation stage of election. At the end of the exercise the Senate was compelled to endorse the use of card reader for the 2015 general election. Thereafter, the Electoral (Amendment) Bill 2015 which sought to legitimise the use of card reader was unanimously passed by both chambers of the National Assembly. The bill was signed into law by former President Goodluck Jonathan on March 20, 2015.

Prior to the amendment, Section 52 of the Electoral Act had prohibited the INEC from the use of any form of electronic voting. But following the amendment of the provision, the INEC has been conferred with the power to determine the procedure to use for any election. Specifically, Section 52 states that “voting at an election shall be in accordance with the procedure determined by the Independent National Electoral Commission.” With the amendment of the law the INEC was on terra firma when it decided to use the card reader machine for the accreditation of voters for the 2015 general election.

In spite of the initial hiccups encountered by voters with respect to the use of the card reader machines it is generally agreed that the technological device enhanced the credibility of the 2015 general election. Indeed, a number of the election petitions filed by aggrieved candidates were anchored on the gap between the number of voters accredited with the card reader machines and the fake election results declared by some returning officers. At the election petition tribunals, the INEC, through its lawyers, canvassed rather curiously that the directive on accreditation of voters with the aid of card reader machines was not backed by any law. And that the failure to comply with the directive could not vitiate any election conducted by the INEC.

Some members of the Election Petition Tribunals and the Justices of the Court of Appeal upheld the submissions of the INEC lawyers. In their judgments they ignored the figures of accredited voters obtained via the card reader machines. Others were however convinced that the directive on the use of card reader was backed by the letter and spirit of the Electoral Act. In the case of APC v Kolawole Agbaje, Ogbuinya JCA traced the genesis of the card reader when he said, “The evolution of the concept of smart card readers is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretise our fragile process of accreditation – the keystone of any suffrage. The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the manual for election officials, 2015.”

The above view of Ogbuinya J.C.A was adopted in toto by Ejembi Eko JCA in the case of Umana v Emmanuel, when he stated that, “I do not believe that with the fast pace of development globally and the whole world embracing the latest IT technologies, that resistance should be placed to emerging technologies geared towards transparency in elections, by backward thinking interpretations that can only be deleterious to the system. Holding otherwise would be to truncate the great efforts of the 3rd respondent (INEC) in its bid to ensure a credible election and in so doing attempt to plug all loopholes that can be exploited by unscrupulous persons.”

Regrettably, the Supreme Court did not share the progressive view of both Ogbuinya and Eko JJCA on the legal validity of the technological device. Thus, in the case of Edward Okereke v Dave Umahi the apex court held that the appellant failed woefully to prove the allegation of over-voting as he did not tender the voters’ registers along with the card reader reports. Justice Cletus Nweze, who read the lead judgment of the court, held that, “Indeed, since the Guidelines and Manual, 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 judicial roots are firmly embedded or entrenched in the selfsame Electoral Act from which it (the Voters’ Register) directly, derives its sustenance and currency….since the National Assembly has not deleted the provision of Section 49 of the Electoral Act (2010), which allows manual accreditation, it would be wrong for any petitioner to seek to rely solely on the report of the card reader (which is intended as a supplementary measure to the already provided means of accreditation) to prove over-voting.”

However, in spite of the clear position of the INEC on the mandatory use of card readers for the governorship and state legislative elections it did not adduce any argument in favour of the use of electronic device at the various election petition tribunals and the appellate courts. It is particularly intriguing that the INEC did not defend the card reader by relying on Section 52 of the Electoral Act (Amendment Act) 2015. If the attention of the Justices of the Supreme Court had been drawn to the 2015 amendment of the Electoral Act they could not have held that accreditation by the card reader machine was supplementary to manual accreditation. In other words, the judgments of the apex court would have legitimised the use of card reader for voter accreditation. No doubt, the legitimisation of the card reader would have had dire consequences on the results of the disputed governorship elections.

Falana, a Senior Advocate of Nigeria, writes from Lagos

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