Edo And Ondo State Elections Amidst Pandemic And Case For Electronic Voting

By Chijioke Ifediora, Esq.

The Independent Electoral Commission (INEC) has announced the date for the State Elections for Edo and Ondo States as 19^th of September 2020 and 10^th of October 2020 respectively. What would make INEC take this uncommon step considering the current global pandemic that has not eluded Nigeria? One could simply conclude to avoid constitutional crisis. Election to the office of the Governor of any State in Nigeria must be held on any date not earlier than 150 days and not later than 120 days before the expiration of the term of office of the term of office of the sitting Governor. (See Section 178 (2) of 1999 CFRFN as amended).

In contrast what ought to take priority, a citizen’s right to life (safe guarding the lives of citizens against corona virus pandemic) or citizen’s civic exercise to vote? The term civic exercise to vote was deliberately used because there is no express “right to vote” under the constitution. The right to vote is not a fundamental right under Chapter IV of the 1999 Constitution. There are qualification or conditions to voting under the Constitution. With the history of suffrage movement across the continent for the right of colonies, indigenes and the black race to vote in their respective countries or homes one would ordinarily expect that either the constitution of Nigeria or the African Charter for Human and Peoples’ Rights will make the right to vote a fundamental right.

INEC, laying a foundation for the conduct of the elections released a document titled “Policy on Conducting Elections in The Context of the Covid-19 Pandemic” a 17 page document made pursuant to Section 160 (1) CFRN 1999 and Section 153 of the Electoral Act 2010 (as amended). INEC claims the policy shall apply to all elections and electoral activities of the commission during the Covid-19 Pandemic but on the other hand it expressly inscribed on the document that the party responsible for complying with the policy is INEC and its Staff.

This document highlights serious constitutional questions. Are political parties excluded from complying with the guidelines? The guideline made no provisions whether political parties are allowed to organize rallies and congresses or convention. How primaries will be conducted. No sanctions for violation of the guideline. The policy guidelines issued by INEC did not address these issues.

Section 15 (c) and (f) of item F, Part I, Third Schedule of the 1999 Constitution empowers INEC to oversee the affairs of political parties and make the necessary regulations with respect to their conduct and activities. Therefore, the “Policy on Conducting Elections in The Context of the Covid-19 Pandemic” issued by INEC falls below the obligation imposed on them by law.

The spread of Corona virus in March compelled the President to issue regulation pursuant to Section 3 of the Quarantine Act, after setting up a Presidential Task Force on Covid-19. This regulation temporarily outlawed movements of goods, services, operation of financial, commercial, educational and corporate institution. It restricted inter and intra State travels in various states in a bid to curb the spread of corona virus. Subsequently, the regulation was modified to allow individuals and corporate bodies who offer what the government termed “Essential services” to operate. Which simply meant, service that are imperative and crucial in ameliorating the spread of the virus and the socio-economic effects of the policies implemented as a result of the corona virus. The 9 page document termed “Implementation Guidance for Lockdown Policy” listed services and corporate bodies allowed to remain operational, however, the Independent National Electoral Commission was excluded. This means that the government does not yet consider elections activities or institutions or parties engaged in electioneering as essential service providers.

With the determination of INEC to approve All Progressive Congress (APC) primaries on the 22 June 2020 in Edo and 20 0f July 2020 in Ondo; and Peoples Democratic Party Primaries (PDP) on the 23^rd to 24^th of June 2020 in Edo and 22^nd to 23^rd 0f July 2020 in Ondo raises serious concerns. Considering the nature of the corona virus and its mode of transmission, would approving Party primaries not bring INEC and the two major political parties in direct violation of a Citizens right to life guaranteed under Section 33 of the Constitution? Which is more paramount the Right to Life or the exercise of a civic duty? One would have to be first alive and healthy before engaging in any political exercise.

The pandemic has exposed our lack of preparation for the future. The pandemic has compelled the Electoral Body to take proactive steps towards implementing E-voting.

However, any action to make Electronic voting operational must be done through an Act of Parliament. INEC cannot play the magic card it played in 2015 when it failed to get legislative backing for the use of Smart Card Readers for elections. This raised a litany of constitutional and electoral issues. The case of All Progressives Congress v. Jimmy Agbaje & Ors (2015) CAR 23 was one case that reflects the issue under analysis. In this case Jimmy Abgaje the People’s Democratic Party Governorship Candidate had approached the election Tribunal and one of the grounds of his petition was whether or not the irregularities occasioned by the use and/or non-use of Smart Card Readers can constitute grounds for questioning an election. The trial tribunal held that a challenge of an election on ground of irregularity whether of Smart Card Reader or otherwise was within the confines of the Electoral Act. On Appeal the Court set aside that decision. The Court reasoned that elections can only be challenged on the following grounds under Section 138 (1) of the Electoral Act 2010 (as amended)  (a) A person whose election is questioned was at the time of the election not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act, (c) that the respondent was not duly elected by majority of lawful voted cast at the elections or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded. The Court noted that malpractices occasioned by Card readers do not form part of such grounds. The Court concluded that invention of Smart Card Reader was by INEC, a non-legislative body through the Manual for Election Officials 2015: Chapter 2 pages 35-42. It noted further that the Electoral Act 2010 as amended is not the parent or progenitor of the Smart Card Reader. 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 the blessings of Section 138 (1) of the Electoral Act.

Litigants have invoked the jurisdiction of the Court to determine 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 Court in Edward Okereke v. David Nweze Umahi & Anor (2016) LPELR-40035 (SC) declared that smart card readers cannot supplant voter register, while voter registers are provided for under the Electoral Act 2010 (as amended), the smart card readers are products of INEC guidelines.

This is what happens when INEC turns into a legislature by exploiting Section 160 (1) CFRN 1999 and Section 153 of the Electoral Act 2010 (as amended) to make regulations. During elections these guidelines are taken advantage of and used to the detriment of candidates and in Court instead as a shield to reclaim mandate they turn to sinking pool for a litigant.

The Electoral Act outlawed Electronic voting under Section 52 of the Electoral Act and the Electoral Act only recognizes ballot as the only legitimate means of casting votes. See Section 44 & 49 of the Electoral Act.

In Fayemi & Anor v. Oni & Ors (2005) All FWLR (pt.265) 1047 the Court noted that a ballot without accreditation cannot be valid ballot paper and without a valid ballot paper there can be no valid election.

This buttresses the fact that INEC cannot take such action through its discretionary powers. Just like the Stamp duties Act was amended by the Finance Act 2019 to make provisions for Electronic Stamp duties legal in financial transactions and also dispense with affixing stamps on electronic transaction without which all Electronic Stamps would have be unlawful, null and void. Therefore, INEC is expected to seek legislative approval for their novel proposition.  If Electronic Voting is embraced the grounds for challenging an election outlined above should change, it then means that the argument canvased in the tribunal in All Progressives Congress v. Jimmy Agbaje that malfunctioning of a Smart Card Reader can be viable ground for irregularity, will become potent and valid.

INEC should not take steps that will endanger the lives and safety of citizens by their decision to conduct election, because without a safe and healthy State there would be no election. It is time for them to approach the National Assembly for constitutional remedy for this impasse.

Chijioke Ifediora, Esq. is a legal practitioner at Lawchest Solicitors., Twitter @Cjifediora