By Muiz Banire SAN

A few weeks ago, I wrote on the subject of electronic transmission of election results and the show of shame by the Senate (See my column in the Daily Sun of July 22, 2021, “E-transmission of election results: Senate’s show of shame” https://www.sunnewsonline.com/e-transmission-of-election-results-senates-show-of-shame/). In the said piece, I condemned the preliminary decision of the Senate to thwart the innovative effort of the Independent National Electoral Commission (the Commission) to enhance credible elections in Nigeria. The National Assembly, consisting of the Senate and the House of the Representatives, had set up committees for the review of the Electoral Act of the country.

This is an Act that majorly governs the Nigerian electoral process. During the 8th Assembly, equal attempts were made to achieve the same objective of amending the Electoral Act but failed with the decline of presidential assent to the bill sent to the President on some grounds, including the proximity of the amendment to the conduct of the election and the disagreement with the provision on ordering of elections. This time around, with the 9th Assembly, the amendment process commenced earlier, under the chairmanship of Senator Kabir Gaya in the Senate, chairman of the Senate Committee on the Commission, and the corresponding committee of the House of Representatives on electoral matters. After months of engagements, the committees eventually made several recommendations, among which was the introduction of a provision regulating the adoption of electronic transmission of election results from the various polling units and the modification of the mode of conducting primaries of political parties by mandating only the use of direct primaries. Hitherto, political parties, by the extant Electoral Act, were permitted to adopt either direct or indirect mode of conducting their primaries and nominating candidates.

With respect to the outcome of the committees, the unanimous recommendation of the committees to the two chambers is that a provision be inserted in the proposed amendment to the effect that the Commission is only permitted to use electronic transmission in circumstances only that are practicable. Surprisingly, by the time the report of the committees was laid before the chambers at the plenary sessions, the Senate decided to modify the recommendation by inserting a qualification that electronic transmission would only be permissible upon the clearance of the Nigerian Communications Commission and the National Assembly. The net effect of that modification was that the Commission would be subject to the control and directives of the executive and the legislature, populated by politicians. The implication was that politicians would dictate the mode of conduct of elections to the Commission that was supposed to be independent.

The further implication of the eventual version of the Senate was that the decision to adopt the electronic transmission of election results depended on the concurrence of the executive and the legislature, who were politicians. Strangely, that sacrilege was sponsored, promoted, supported and actualized by the ruling party, All Progressives Congress senators, presumed to be the progressives as pretendingly included in the party’s name. Interestingly, it was the People’s Democratic Party (PDP) that supported the progressive step. Again, on a similar issue that came up under the 8th Assembly on the ordering of elections, the same ruling party, as typified by the President, had rejected similar proposals on the ground that it fettered the absolute power conferred on the Commission to determine the mode of conduct of election in Nigeria. What then has changed beats one’s imagination? The only palpable explanation lies in the desperation of politicians to manipulate the electoral process, particularly the election results, by instituting the rigging infrastructure ahead of the 2023 general election. The House of Representatives, on the other hand, retained the recommended version of the proposed amendment to the extent of legislating the usage, whenever it is practicable.

To the House, the Commission can apply electronic transmission whenever it is practicable, a decision vested in the Commission, as opposed to any external body. It is instructive to remember that, prior to the recommendation on the amendment by the committees, the Commission, pursuant to the power conferred on it by the Constitution, had adopted the use of electronic transmission of results as part of the country’s electoral process and had, in fact, applied it in the gubernatorial elections in Edo and Ondo states. It was, therefore, shocking when the intrusive provision was introduced as part of the proposed amendments to the Electoral Act.

As indicated above, the Constitution of Nigeria endows the Commission with absolute powers to determine mode of conduct of election, without subordinating it to any other body. In the first instance, one wonders, what is the business of the National Assembly with legislating on the conduct of elections, the precinct of which has been clearly delineated to the Commission? The Constitution having covered this field, the National Assembly lacks the competence to legislate on the subject, ab initio. The truth remains that most of the current elected political office holders have become unpopular in their various constituencies, hence, they need to fashion out ingenious ways of manipulating the electoral process towards their re-election. Of course, one of the veritable ways is through manipulation of election results, the procedure of which is through the use of manual transmission of results. In most election petition matters filed in this country, the constant and major ground of contesting the outcome of an election has always been falsification, defacement and forgery of election results. This is where Nigerian politicians mostly demonstrate their ingenuity, an act that is often perpetrated through the connivance of corrupt electoral officials and compromised agents of other competing political parties. Where this appears impossible, politicians make use of thugs to effect manipulation of election results. They do this to secure victory at the polls, knowing full well and confident that, under the current electoral justice regime, it is near impossible to secure justice due to the time limitations to prove cases, among other constraints. This is apart from the corruption in the electoral justice system.

It is against this utilitarian value of the manual system that the politicians prefer the retention of manual transmission of election results. The premise upon which the Senate based its conclusion is lack of coverage of telecommunications across the country, a claim the telecommunication companies and the Commission debunked immediately. What that shows is that there was no, or insufficient consultation, with the companies, only the Nigerian Communications Commission was invited and, with its seemingly compromised posture, it shamefully asserted its failure by admitting its inability to ensure network coverage in the country.

From the presentation by the Communications Commission on the floor of the Senate, it was glaring that the Communications Commission was incompetent to render opinion on the subject. It was, however, gladdening when the Electoral Commission publicly announced its capacity to deploy electronic transmission of results across the nation with ease, an event that was followed by that of the telecommunication companies to the same effect. Happily, as discussed above, the version of the proposed amendmentarrived at by the Senate differs from that of the House of Representatives who only approved the usage subject to practicability. This inevitably forced on the Assembly the need to have a joint conference to resolve the difference. This necessity further availed the people the opportunity of further agitation on the imperative need to continue the usage of electronic transmission in our elections. It would be remembered that during the consideration of the bills at the plenary, the public had lent its voice to the need to avoid any legislation on the subject of electronic transmission.

Various interest groups, individuals and stakeholders rose up to the challenge of attempting to gag the Electoral Commission in the constitutional discharge of its responsibility, thereby advocating the continuous adoption of electronic transmission of election results. These various pressures and outrage from the people ultimately culminated in the reversal of the earlier position of the Senate that the National Assembly and the Nigerian Communication Commission would determine when to adopt the use of electronic transmission of election results. The reversal, in my view, is still not legitimate as it does not only legislate on the subject the Assembly lacks the capacity to do but retained the unnecessary rider of “when practicable”. I say this because I am convinced that the Assembly lacks the competence in the first instance to legislate on the issue. The convenient and proper point would have been the Assembly distancing itself from legislating on the conduct of the election which is the exclusive preserve of the Commission.

The retention of the clause whenever practicable is a dangerous proposition that could be abused in the future. To the extent that in our view it is a surplusage, I urge the President to reject it. In addition, to the extent that the legislature ought not to legislate on the subject at all, I submit that it is equally a dangerous thing to allow the intervention, I dare say, interference, as it is liable to be abused in the future. This legislative aberration can form the basis of future tampering with the absolute discretion of determining the mode of conduct of the elections by the Commission. It is a dangerous precedent. My take, therefore, apart from the commendation awarded to Nigerians for their insistence on the right thing through the unity of purpose, I believe the President must reject totally the entire provision dealing with electronic transmission of election results.

Where the President fails to do so, the provision needs to be challenged in a court of law. The gravamen of this piece, therefore, is to commend the people in general, particularly those who joined in ‘putting on their microphone’ on the issue. This reversal is a recognition of the power of the people and attestation to their sovereignty. The lesson must, therefore, not be lost on all of us that power belongs to the people at all times and that we must never allow politicians to continue taking us for granted. There are still so many of these battles staring us as Nigerians in the face, our unity of purpose is called for and we must not shy away from interrogating the issues as they come up and bring on board our unity of purpose. I commend all progressive Nigerians in this regard and advise the political class to take note of this development and be ever ready and willing to submit to the will of the people. It is often said that the voice of the people is the voice of God and must always be listened to.

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