The Principal Counsel of Uche Ojembe & Associates Legal Consult (UOALC), Uchenna Ojembe, Esq. has clarified that it is a mandatory duty and legal responsibility of the Independent National Electoral Commission (INEC) to upload the elections results of every polling unit to the INEC Portal (which in this case is the INEC Result Viewing Portal (IReV).
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“It is without an iota of doubt that INEC has the legal obligation as provided by statute to
transmit electronically the election results from various polling unit.
Section 38 of the Electoral Act 2022 that deals with the transmission of result at the polling units is key and it demands a statutory obligation on the part of INEC to upload polling units results
on its portal.”
“it is pertinent to note that at the close of polls and as soon as results are declared at various polling units in every state in Nigeria, the results “must” and not by any discretion of INEC be uploaded on INEC result portal.” The intention of the draftsman is to promote transparency, accountability and to give more credence to the results authenticity emanating from various polling unit.
The moment this procedure is not done accordingly, it becomes questionable because there becomes room for manipulation of some sort.
In furtherance to the above, Paragraph 38 of the INEC Manual 2022 which is established pursuant to section 149 of the Electoral Act 2022 and provisions of the constitution of the Federal Republic of Nigeria 1999 as amended provides that: On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:
1. Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission.
2. Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV), as prescribed by the Commission.
3. Take the BVAS and the original copy of each of the forms in tamper evident envelope to the Registration Area/Ward Collation Officer, in the company of Security Agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Centre.
INEC has no option as the key word used in the said provision of the law is “SHALL”. Therefore, a fundamental breach shall arise where there is failure to upload the results and follow the due process/procedure contained therein and is capable of rendering the results from the polling units that did not comply with the provisions of the statute void.
It is trite law that where the law sets out procedures to be followed the procedure shall be followed to the letter. see the supreme court case of Buhari v. Yusuf (2003) 6 S.C. (pt.II) 156; (2003) 4 NWLR (Pt.841) 446 @ 492. In the case of Mr. Adesola v. Alhaji Abidoye & anor. (supra). Iguh JSC @ page 96 stated that, where a special statutory provision is laid down, that procedure, ought to be followed and complied with unless it is such that may be waived”.
On the submission that INEC guidelines have no force of law is a misleading submission and authors should cease from escalating falsehood. It is settled law that the guidelines issued by INEC are subsidiary legislation made pursuant to Section 153 of the Electoral Act, 2010 (as amended) and has the force of law and therefore binding. In the circumstances Exhibits INEC 1 and INEC 2, have the force of law.
In NDP V INEC NWLR (PT 1319) 176 at 196, it was held that: “The time table is a guideline with the force of law. This is because any action taken outside the published time table is fatal to the Political party involved. The activities and the time schedule set out in the time table are not directory.” “See also SHINKAFI VS. YARI (2016)7 NWLR (part 1511) 340.
In concluding his submission, he said, “It is not even about the question of alteration of the results, it is
about noncompliance with the mandatory statutory provisions as laid down in the INEC guideline 2022.
Immediately after the polling officers has announced the winner at the various polling units the results must be uploaded before continuing with other steps as provided by law. It is incorrect to argue that it is only when the Chief Electoral Officer of the Federation announces the winner of the Presidential election that the results can be uploaded on the INEC portal.
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