By Dr.Muiz Banire SAN
When, a few weeks ago, the National Assembly embarked on public hearing across the nation in the process of amending the grundnorm of the country, the Nigerian Constitution, I had cause to analyze the purport of the journey and ended up dubbing it as a legislative scam. This time around, it is the Electoral Act that is in the process of being amended. The Electoral Act is made pursuant to the Constitution of Nigeria and meant to regulate the way and manner elections are conducted in Nigeria. All processes connected with the conduct of elections in Nigeria are guided by the Electoral Act, the Independent National Electoral Commission (INEC) Regulations and Guidelines. The first relevant Electoral Act in this regard was enacted in 2006 and was substantially amended in 2010. Between that period and now, except for some snippets of amendments, like the 2015 amendment, no major overhaul of the Electoral Act has been done.
The last attempt at such substantial review was in 2018 but the President vetoed same by refusing to append his assent on several grounds, among which were the re-ordering of election schedule, which he felt tampered with the discretion of the commission and the expansion of the grounds of questioning election. Since that time, and arising from our experiences in the operation of the Electoral Act, 2010, with its amendments, Nigerians have been yearning for a new Electoral Act that will address all the identifiable defects in the act. The current experiment by way of the Electoral Bill being considered, is, therefore, a welcome development. While the content of the proposals as contained in the draft bill is yet to be unveiled, information filtering to the public with regard to the electronic transmission of the polling booth results is unpalatable. If what is in the public space is anything to go by, particularly inferences capable of being drawn from the interview of some key figures in the committee responsible for the packaging of the amendment process at the National Assembly, then Nigerians might be in for the worst in terms of the credibility of our elections. Under the Electoral Act, the commission is empowered to transmit results from the polling units electronically.
This much the commission has done in the deployment of electronic transmission of results in Edo and Ondo states gubernatorial elections. It is a step already hailed by the electorate and equally embraced. With the deployment of the electronic transmission of results in those states, manipulation of election results in the process of collation was eliminated. In fact, election petitions that arose from the elections avoided any contest in that regard as the petitioners knew that the server is well and alive to testify. In addition, the use of political thugs to torpedo and manipulate election results greatly reduced. The electronic transmission further served as a booster of confidence in the electorate who trooped out to perform their civic duty by voting, believing and convinced that their votes would count.
Prior to the introduction of electronic transmission by the commission, alteration of results, defacement of result sheets, outright vanishing of result sheets as well as manipulation of outcomes of elections were the order of the day.
The good news is that the manual transmission of the results is still allowed to run concurrently with this electronic transmission under the new procedure, thereby acting as a backup. Any discrepancy in the results between that electronically transmitted and that contained in the manual result sheets automatically raises red flags for interrogation. The use of manual transmission has, in the past, led greatly to the thwarting of the will of the electorate. It is a major debacle in the conduct of free and fair elections in Nigeria. Manual transmission singularly is a potent tool for rigging elections by politicians in Nigeria. Thus, with electronic transmission, voters’ apathy is gradually becoming extinguished. Due to these capacities of the electronic transmission, our elections are gradually becoming credible. This innovation was immediately embraced by all lovers of democracy in the country and constitutes one of the credits that INEC earned in recent times.
However, as Nigerians are beginning to heave a sigh of relief in this regard, looking forward to further upgrades in terms of electronic voting, shock is creeping in now with the story of stoppage of the use of electronic transmission. It is distressing for Nigerians to learn that this progressive step is on the verge of being reversed by the anti-democratic forces in the National Assembly. As if that was not enough badge of anti-democracy to demonise a legislator, it has always been said, and it is beginning to manifest that the members of the National Assembly are not true democrats, or else, how does one describe the attempt to muzzle protesters? Protest is ingrained in democracy and it is not only a civil right, it is also a fundamental component of right to freedom of expression as a fundamental right that cannot be impaired. We have listened to all manner of excuses to give sense to the nonsense of stifling democracy by our elected representatives.
Now, in the attempt to rationalize the removal of the power of the INEC to deploy electronic transmission of results, several lame excuses have been put forth, prominent of which is the challenge of telecommunications network in some parts of northern Nigeria. Is this enough excuse to halt the progressive step? I do not think so. In the first instance, the truism in all situations is that once the diagnosis of a problem is made, the prognosis is in sight. The most recent example is the coronavirus. As soon as the nature of the problem was identified, solutions began to emerge. The point being made, therefore, is that, having identified the challenge of network unreliability in some parts of the country, the expectation would be to address the challenge by the National Communications Commission, in conjunction with the various telecommunication companies in the country. Solving any form of network challenge is not rocket science in any part of the globe. In fact, to the best of my knowledge, there is nothing technical about the problem other than security issues.
The bane is simply vandalism of the facilities and deliberate impairment of the efficient operation of telecommunication service by the security agencies for monitoring purposes and to frustrate potential criminals. These are mere issues capable of being resolved with the huge resources continuously appropriated to the security agencies. Hence, between now and the next election, the problem can be put behind us. Assuming, without conceding, that it is even impossible to solve, the hitch in the negligible areas affected should and must not constitute a bar to the adoption of the electronic transmission system across the larger part of the nation. The worst scenario is that, in that little enclave, the commission can deploy manual transmission where it is convinced that the electronic transmission system is impracticable.
Beyond this, I am aware that most of the electronic innovations being canvassed or introduced by INEC are capable of being actuated through the use of satellite communication systems. In the alleged areas, the card reader still functions. What, therefore, will prevent electronic transmission from functioning? Furthermore, all the people in those areas operate electronic banking and enjoy other electronic services, including application for employment. What now makes electronic transmission of results impossible except for the selfish reason of manipulating election results?
If the truth must be told, most members of the National Assembly are already unpopular in their various constituencies and they rely on manipulation of the electoral process to emerge in future elections. This thought negates the stance of the President and the ruling party as the duo have, at various times, stated that part of the legacy they are leaving behind is free and fair elections in Nigeria. To this extent, I expect the ruling party to wade in by matching word with action and demonstrating sincerity of purpose in this regard. It is against this threat by the legislators to sabotage the free electoral will of the electorate that I call on all stakeholders to rise up and defend the electronic transmission of results already deployed.
Should, per chance, the bill containing the clause disabling the use of electronic transmission slip through, we urge Mr. President, in line with his pronouncement and posture, to deny assent to the bill, which contradicts his stance on credible elections. Furthermore, it is our view that, by now, the country is ripe for electronic voting. So many professional associations are already adopting the system in the conduct of their elections.
The system need not be perfect from inception as in other ventures. With time and usage, continuous improvement will dwarf whatever challenges that might be noticed in the application. “Practice makes perfect” is the proverbial saying. Electronic voting is no more rocket science globally. The guilt lies in not commencing it at all. In the light of all the above, it is pertinent for us all the stakeholders, civil society organizations and all democrats to wage war against the threat to stop electronic transmission of results. We must not allow these retrogressive forces to overreach our collective will and draw us back any longer. Constituents must prepare position paper on this and communicate to their representatives on where their votes must lie on the issue. Beyond this, we must monitor our representatives in the voting exercise during the consideration, and ascertain their stance.
This will in turn reveal to us where they belong and if they truly represent our interests. I must register my delight of seeing some groups already raising their voices in this regard. We need more to sink the anti-democrats. On this issue, we cannot afford to be nonchalant and lackadaisical. Election is the bedrock of our democracy and as democrats, we cannot afford to be passive on this fundamental issue. Without ensuring that our votes count, we cannot have credible elections the implication of which is that good governance will remain a mirage to us. By way of conclusion, should the President assent to the bill, we must be proactive by preparing to challenge it in the court, not necessarily to win the case but at least, to expose the dubious intention of our politicians in this regard by denying us the right to choose how we are governed. We can also start mobilizing against such retrogressive bills now.
(Cambridge University Press, January, 2021) By Professor Damilola S. Olawuyi, SAN, FCIArb, Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti
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