Free, fair, credible and periodic elections are the basis of any flourishing democracy. It is through elections that the people exercise their sovereignty. Every Nigerian, irrespective of ethnicity, religion, class or political party, must strive to ensure that we have free and fair elections because we may not survive another experiment in despotism and dictatorship. Rigging of elections is a form of civilian coup against the people and persistent rigging leads to chaos. The foundation of free and fair elections start with good laws to guide all the parties and institutions involved in elections. The major institutions at play in this journey of free and fair elections, as it concerns the making of the laws and amendments thereof, include the National Assembly, made up of the Senate and the House of Representatives, the INEC and the Nigerian people. The most powerful of these institutions in a democracy is the people because “sovereignty belongs to the people of Nigeria from whom government … derives all its powers and authority”. The condition to be the most powerful by the people in a democracy is eternal vigilance.
The next powerful is the National Assembly because the Legislators are voted in by the people to represent them. They exercise the sovereignty of the people in the area of making “laws for the peace, order and good government of the Federation or any part thereof”. They also have the power to “direct or cause to be directed investigation into any matter or thing with respect to which it has power to make laws, and the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for executing or administering laws enacted by National Assembly, and disbursing or administering moneys appropriated or to be appropriated by the National Assembly. The powers conferred on the National Assembly under the provisions of this section are exercisable only for the purpose of enabling it to make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and expose corruption, inefficiency or waste”. See Sections 4 and 88 of the 1999 Constitution of the Federal Republic of Nigeria as amended. One can assert conclusively that the main job of the lawmakers is making laws and investigating how well the made laws are kept with the aim of amending the laws and exposing corruption, inefficiency and waste by any person or authority in the process of administering those laws. Any other power purportedly exercised by the lawmakers outside the constitutional provisions of their powers is ultra vires and consequently null and void. The condition of being good Legislators is ensuring that the laws made reflect the will of the Nigerian people and most importantly ensuring that they do not exceed their powers in doing their job in order to avoid confusion.
INEC is the next important institution in the journey of amendments to the Electoral Act and ensuring free and fair elections in Nigeria. The Commission has the power “to organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation”. In the execution of this mandate, the Constitution made it clear that the Independent National Electoral Commission shall not be subject to the approval, direction or control of any other authority or person, including the President. Please see Sections 78, 158, 160 and Paragraph 15 of Part 1 of the Third Schedule to the 1999 Constitution as amended.
There has been a heated debate on the matter of the Electoral Act Amendment Bill. Whereas there are many areas that are being considered for amendments, the only area that is hotly debated is the area of electronic transfer of results. The Senate Committee on INEC had, in the report to the Senate, after the public hearing, recommended in Section 52(3) that, INEC “may transmit results of elections by electronic means where and when practicable.” This signifies exactly what the people want because the decision was arrived at after listening to the people, including INEC, during the public hearing. But an APC Senator from Niger North, Sabi Abdullahi, amended the clause to read, “INEC may consider electronic collation of results, provided the national network coverage is adjudged to be adequate and secured by the Nigerian Communications Commission and approved by the National Assembly.” Members of the Committee on Communications had earlier informed the chamber that the NCC had declared that only about 49.3 per cent of the country was currently under effective telecommunications coverage, despite the tacit assurances by INEC, during the public hearing, that it has the capacity to electronically transmit the election results in Nigeria, no matter how rural the venue is, citing its performance in the 22 preceding bye elections it recently conducted. At the end of the day, the Senate surprisingly passed the amended “Over Sabi” version. We must note, however, that according to the House Majority Leader, the version which was approved by the Nigerian people, was the one that was approved by the House and this is commendable.
We must distinguish between electronic voting, electronic transfer of results and electronic uploading of manual results. Amongst these three, it’s only the first one that our laws expressly prohibits. Section 52(2) of the Electoral Act states, “The use of electronic voting machine for the time being is prohibited”. The Electoral Act endorsed manual voting and collation of results but did not expressly exclude electronic transfer of results as a means to preserve the authenticity of the manually collated and transferred results. The Electoral Act indirectly encouraged electronic uploading of manual results when it mandated INEC to publicly display the manual result sheet by pasting a copy of it on a conspicuous place at the polling unit, after the announcement of results, so that any interested member of the public can snap it and preserve it in his phone for evidence. The INEC, in uploading the manual result sheet in its portal, is simply furthering transparency in the electoral process and there’s nothing illegal about it, even with this unamended Electoral Act. INEC displayed the manual results in its portal in the 22 earlier elections and attracted no litigation against it because they did not discard the manual process. What INEC is simply yearning for is to be given broad powers to deepen the use of technology in the electoral process to ensure free and fair elections and the least the Senate should do is to listen and grant it to them.
The insistence of the Senate to hearken to NCC rather than INEC has led it to, probably, the most embarrassing amendment in the history of Nigeria. The amendment is not only illegal but offends the basic constitutional principle of separation of powers. The National Assembly has no power to execute any law or administer or supervise any Ministry, Department or Agency. This is the exclusive preserve of the Executive. We stated the powers of the National Assembly above. So, even if the Constitution allowed any supervision or control of INEC, it would have been the function of the executive. Isn’t it absurd that the Constitution, in order to preserve the independence of INEC, denied the executive this privilege, yet the Senate appropriated this power to approve any procedure of action which INEC should follow in its choice of electronic transfer of results. With due respect to the Senate, it lacks such powers. The Senate also lacks powers to subject INEC’s actions to the approval of another commission, NCC, because it will offend the independence of INEC, which is constitutionally guaranteed. We recall that the Senate in the recent past passed a resolution mandating the DG of National Directorate of Employment to bypass the Minister of State for Labour and bring to it the list of the 1000 workers per Local Government for approval. It never happened because the Senate lacked the powers and this may have been the genesis of the DG losing his job. No INEC Commissioner worth his onions will seek the approval of NCC or Senate before carrying out its duties and if INEC is compelled to do so, that will mark the beginning of the unravelling of the Commission and our democracy with disastrous consequences on us all. In any case, such amendment will not even survive judicial scrutiny and review if the need arises.
What happened in the Senate did not happen because of lack of Network coverage, it was an attempt by desperate politicians to retain their power to manipulate election results in the process of collation in order to subvert the will of the people. How do you explain that the Legislators are not vociferously aversed to electronic voting, which needs more network coverage, as they are aversed to electronic transfer of results, which needs lesser or even no network coverage, as INEC has assured of backups which will ensure coverage of the whole country on that day. We have had enough coverage to electronically register every Nigerian voter in every part of Nigeria, no matter how remote. We have had enough coverage to operate the card reader throughout Nigeria during elections. INEC has even electronically uploaded the results of all bye elections conducted in all the six Geo-Political Zones without qualms.
And suddenly, Legislators are saying INEC cannot transfer election results without permission from NCC and NASS. This is sheer hypocrisy. PDP must be regretting being hypocritical with the amendment of the Electoral Act from 2010 to 2015 when it left power. It couldn’t even legitimise the use of the card reader within that time because it calculated that it will obstruct its agenda to rule for 60 years. God cut their regime to 16 years because all powers are ordained by God. Now they are in opposition and seeing the consequences of their actions, they are now shouting up and down pretending that they are fighting on behalf of Nigerians by insisting on electronic transfer of results. They are fighting for their enlightened self interest for survival. APC that was screaming in 2015 “no card reader, no election” are now prevaricating on speeding up the grant of broad powers to INEC to electronically transfer election results, if it so chooses, as a panacea to overcome our electoral challenges. This is simply hypocritical. We must all join forces to do the right thing because no condition on earth is permanent.