A retired High Court judge and renowned scholar on electronic evidence, Hon. Justice Alaba Omolaye-Ajileye, has faulted the amendment to the Electoral Act 2026, describing its provisions on electronic transmission of election results as inconsistent and lacking sincerity, warning that the automatic fallback to manual handling of results whenever electronic transmission fails, without stringent safeguards, opens the electoral process to manipulation and gives “statutory cover to the very opacity that electronic transmission was intended to cure.”
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Justice Omolaye-Ajileye made the remarks on Thursday in Abuja during the public presentation of his books, “Electronic Evidence” (Second Edition) and “Compendium of Cases on Electronic Evidence, Volume II (2020-2025),” as well as the launch of the Justice Alaba Omolaye-Ajileye Educational Foundation for Indigent Students.
Speaking on the amended Electoral Act ahead of the 2027 general elections, the retired judge identified what he described as a fundamental contradiction in the law’s approach to technology in the electoral process.
While the law makes the use of the Bimodal Voter Accreditation System (BVAS) compulsory for voter accreditation, it weakens the integrity of the process by allowing manual handling of results whenever electronic transmission fails.
“The amendment creates a contradiction in the law by treating technology as indispensable during accreditation but optional during result transmission,” Justice Omolaye-Ajileye stated.
The inconsistency, he argued, is not merely technical but reflects a deeper problem of sincerity in the legislative approach to electoral technology.
In an interview with journalists after the event, Justice Omolaye-Ajileye stated plainly that he sensed deliberate inconsistency in the amendment.
“My main point is that I find some kind of insincerity in that amendment. This is because similar provisions are contained in Section 47 of the Electoral Act. Section 47 provides that if there is failure of the BVAS device, they should wait for service to return. But in respect of electronic transmission of results, the amendment does not contain a similar provision. Instead, it allows manual recording and transmission,” the retired judge stated.
“There ought to have been a similar provision requiring officials to wait for the restoration of service,” he added.
The comparison is pointed. Under the Electoral Act, when the BVAS device fails during accreditation, officials are required to wait for service to be restored. No manual alternative is permitted. The logic is clear: accreditation must be conducted electronically to prevent impersonation and multiple voting, and the integrity of that process cannot be compromised by a fallback to manual methods.
Yet when it comes to the transmission of results, which is the stage at which the actual outcome of the election is communicated from polling units to collation centres, the same law permits a wholesale retreat to manual recording and collation whenever electronic transmission encounters difficulties. The retired judge’s point is that if electronic integrity is so important during accreditation that no manual alternative is tolerated, it should be equally important during result transmission, the stage at which manipulation has historically been most prevalent.
Justice Omolaye-Ajileye acknowledged that it is realistic for the law to anticipate network or communication failures. Technology does fail, and a law that makes no provision for such failures would be impractical. However, he argued that the defect lies not in recognising the possibility of failure but in the nature of the response the law prescribes.
“The weakness of the amendment is not that it recognises the possibility of technological failure. The defect lies in making manual recording or manual collation the automatic fallback without imposing strict safeguards,” the retired judge stated.
Without such safeguards, he warned, the amendment “merely gives statutory cover to the very opacity that electronic transmission was intended to cure.”
The implication is that electoral actors who wish to manipulate results now have a legally sanctioned pathway: claim that electronic transmission failed and revert to manual processes that are inherently less transparent, less verifiable, and more susceptible to human interference.
Justice Omolaye-Ajileye warned that the provision could encourage the deliberate manufacturing or exaggeration of communication failure in disputed polling units.
He stressed that the law should clearly define several critical questions that are currently left unanswered: who determines that a communication failure has occurred; how many transmission attempts are required before failure is declared; how such failures should be documented; and whether technical evidence should be produced before manual procedures are authorised.
The retired judge proposed a comprehensive set of safeguards that should be required before manual procedures are permitted where electronic transmission fails.
First, presiding officers should be required to file prescribed incident reports documenting the nature and circumstances of the transmission failure.
Second, presiding officers should make repeated logged transmission attempts, with each attempt recorded and time-stamped, before declaring that electronic transmission has failed.
Third, confirmation should be obtained from party agents and security personnel present at the polling unit that electronic transmission has indeed failed and that manual procedures are necessary.
Fourth, results should be preserved electronically offline, meaning that even where transmission fails, the electronic record of the results should be saved on the BVAS device or other storage medium for subsequent verification.
Fifth, the presiding officer should transmit the results at the nearest secure transmission point before collation proceeds, ensuring that the electronic record is transmitted as soon as connectivity is restored rather than being entirely replaced by manual records.
Justice Omolaye-Ajileye also recommended that INEC publish a list of all polling units where electronic transmission failed, including the reasons for each failure and supporting technical logs, providing a public record that can be scrutinised by parties, observers, and the courts.
Referring to comments credited to the INEC Chairman that ballot box snatching is no longer fashionable, Justice Omolaye-Ajileye agreed that the practice is becoming outdated in the digital age but cautioned against complacency.
He noted that despite the deployment of BVAS during the 2023 general elections, incidents of ballot box snatching still occurred, indicating that the practice has not been entirely eliminated.
However, he pointed to Section 51 of the Electoral Act as a strong legal safeguard against ballot stuffing. The provision empowers presiding officers to cancel results where votes cast exceed the number of accredited voters, meaning that even if a ballot box is snatched and stuffed with thumb-printed ballot papers, the excess votes would be detectable and the results cancellable.
“If a primitive man in 2027 goes to snatch a ballot box and stuffs it with thumb-printed ballot papers, he will come to meet Section 51 of the Electoral Act in court,” Justice Omolaye-Ajileye stated.
He said the real solution lies in strict enforcement of Sections 47 and 51 of the Electoral Act, which together provide the framework for ensuring that only electronically accredited voters are counted and that results are not inflated beyond the number of accredited persons.
Beyond electoral reform, Justice Omolaye-Ajileye drew on his expertise in electronic evidence law to advise legal practitioners on a common professional failing.
He urged lawyers handling electronically generated documents not to wait until objections are raised in court before preparing to satisfy the requirements of Section 84 of the Evidence Act on the admissibility of electronic evidence.
Section 84 prescribes specific conditions that must be met before electronically generated evidence is admissible, including a certificate identifying the electronic device, describing the manner in which it produces the document, and confirming that the device was operating properly. Many lawyers fail to prepare these certificates in advance and are caught off guard when opposing counsel objects to the admissibility of electronic evidence.
Justice Omolaye-Ajileye’s advice reflects the reality that electronic evidence is now central to virtually every area of legal practice, from commercial disputes to criminal prosecutions to election petitions. Lawyers who do not master the requirements of Section 84 risk having critical evidence excluded and their clients’ cases compromised.
Justice Omolaye-Ajileye reflected on his own journey from knowing “virtually nothing about electronic evidence in 2010” to becoming one of Nigeria’s leading authorities on the subject, urging lawyers to continually develop themselves through learning and preparation.
He encouraged young Nigerians to remain focused, embrace integrity, work hard, and invest in self-development, describing determination and continuous learning as “the keys to success.”
The remarks were made at the public presentation held at the Conference Centre, National Open University of Nigeria (NOUN), Jabi, Abuja, where the books were reviewed by Professor Alex A. Izinyon, OFR, SAN, and Professor Dakas C.J. Dakas, SAN, Chairman of the Nigerian Law Reform Commission.
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