Barr. Mike Igini is a former Resident Electoral Commissioner (REC) in Edo and Cross River States. In this interview, he expresses shock over the judgments of the Supreme Court on the card reader and warns that the verdicts could spell doom for the nation’s electoral process.

Mike Igini

Excerpts:

As one who publicly canvassed the use of the card reader for election, what do you make of its rejection by courts?

It is a tragedy for Nigeria because it will reverse our democratic fortune.   Any answer I give to this question will not be complete without contextualizing   the need for the card reader and the consequences of the latest development. Elections in Nigeria have often times been  bedeviled by efforts to ensure predetermined outcomes.

Whereas the essence of the design of election is to make the outcome as uncertain as possible to increase the credibility of the process, due to the constant attempts by contestants/candidates and their sponsors to diminish this uncertainty by manipulating the election process, management structures and managers have undergone many reforms. For instance, between 1959 and 1999, the name of the election management agency in Nigeria has changed five times from ECN in 1959, to FEDECO in 1963, then NEC in 1986, NECON in 1993 and  INEC in 1999.

In addition, the governing body of the institution has been reconstituted 13 times between 1958 and 2004, making it about 18 times if you add the reconstitution of the leadership since 2004 to 2015, namely Maurice Iwu, Chief Soyebi, Professor Jega, Mrs Zakari and Professor Mahmood Yakubu. Furthermore, the process has undergone many changes  to voter registration, voting in the form of, hidden balloting (pre-Nwosu era), open balloting (Humphrey Nwosu period), and currently modified open balloting (post-Nwosu era).

We have also had modifications in the ballot papers and result sheets with customization LGA by LGA to polling units, modifications in time of delivery of materials, release of results from wide time frames to immediately after vote counting at the polling unit, collation of results, changes to collation and returning officers as well as presiding officers to graduate cadres and federal civil servants and university lecturers. We have equally had changes to duration of dispute resolution.

In these process changes, the introduction of the card reader was meant to reduce subjectivity and increase the fidelity of voter verification from the voter register, a previous weakness that allowed for multiple voting and inflated election results. In all of these changes, we can see that one thing has been missing. We have been modifying everything, election process, election management structure and election managers, without modifying the behaviour of participants.

This is the one and only remaining weak link. If the card reader and all other reforms must make sense and endure, the time has come to concentrate on modifying the behavior of election participants through the creation and institutionalization of an Electoral Offences Commission to identify, investigate and punish electoral offenders, until this is done we will continue to have controversies. The control of human behaviour is usually in two forms, normative and descriptive.

Normative control involves voter education which INEC has been doing, cultural sanctions and ostracism, but descriptive control requires laws and statutes prescribing punishment such as prison terms, and prolonged or life ban from participation in politics. If we have been doing that, maybe our system would have weeded off many negative elements by now.

Doubts have been cast on the legal status of the card reader for the 2015 elections and its possible future use for elections given the judgment of the Supreme Court.   Can we clear these equivocations in simple clear terms for the voting public to understand what is at stake?

First, nobody has shown us the provision of either the Constitution or the Electoral Act that card reader has breached, except this constant confusion over the card reader with respect to voter authentication and voting that are separate procedures; as   seen in the decisions of   the tribunals on many state Houses of Assembly election cases across the country that did not attract the   attention of Nigerians until recent governorship matters. I have been  worried since last year and l voiced my concern over the future of our elections if the card reader is not given its prime revolutionary place in our electoral system.

My colleagues both in the Bar and Bench involved in election petition matters should remember that the accreditation process is different from actual voting carried out at different times and should not be confused or mixed together, as it appears has happened, leading to the decisions reached by the courts   most unfortunately. The act of voting begins with handing the identified/authenticated voter a ballot paper to cast a ballot. But before a person qualifies to express that choice, a presiding officer by law must first be satisfied that the voter is qualified or eligible to vote, and is in the place where he/she is duly registered as required under Section 49(1)(2)   of the Act.

It should be noted that by virtue of the combined effect of the powers conferred on INEC under paragraph 15(a) of the Constitution to “organize, undertake, supervise and in particular Section 153 of the Act; the power to issue regulations, guidelines and manuals for the conduct of election, the Commission, in its determined efforts to strengthen the integrity of the voter register, designed and produced the permanent voter card (PVC), with a lot of security features to be used with the card reader for accreditation.

Voter authentication and the use of the card reader, therefore, is only important for the identification or verification of only those voters who actually turned out for accreditation instead voting on behalf of people who didn’t come out to vote that is made possible with manual register alone that one can tick to justify returns.   Card reader has not in any way violated any known law but rather strengthened the provision of Section 49 of the Act.

In effect, you are saying that the card reader’s use did not violate Section 49 of the Act now in contention? 

Absolutely not. The card reader verification of identity helps to objectively satisfy the presiding officer to qualify the voter at the time of accreditation to be issued a ballot paper, so that he or she can cast a ballot at the time of voting. It is a condition precedent to voting as stated in Section 49 of the Electoral Act and not the actual voting as has been interpreted wrongly. Section 49 talks of the satisfaction of the presiding officer and issuing ballot to a voter to proceed and vote. But its common knowledge that   accreditation usually   precedes voting and all the processes regarding accreditation are contained in the guidelines and manuals.

Frankly, in terms of legality, I don’t see where any confusion should come in. INEC introduced this process of verification because it is an operational process during an election; it doesn’t need to go back to the National Assembly to seek approval for the development of an operational process for voter identification, since the National Assembly, by the instruction of the Act, has already said the Presiding Officer should be satisfied that the voter is authentic. It is left to the election managers to devise an objective way of ensuring that satisfaction is reached with minimal equivocation using a simple device like the card reader. In fact, let me take you through stages of realizing the road goal of a free, fair and credible election because it may be easier to understand this from a policy process analysis. We have to look at it from the three types of policy, from policy formulation to implementation.

The Constitution and political leaders express a broad vision that, as a nation, we should conduct elections to elect people to occupy the offices created by the Constitution in Chapters 5 and   6 and the time-frame to do so and nothing more. This is a   political policy statement that is generic, it does not go down to explain details of how it would be accomplished; it gives the broad goal, namely, the need to conduct elections and the body or institution like INEC charged with that responsibility.

The legislature then gives more specific directions in   form of an executive policy on how to meet this goal, in   form of an Electoral Act, that spells out how to verify the identity of a voter, creating role players in the form of a presiding officer to be responsible for this. To operationalize an executive policy, affected departments make departmental policies, through its powers to issue and use guidelines and manuals.

The affected department, in this case INEC, creates and circulates the guidelines, manual or codes of practice to stakeholders for comments as was done, and when all doubts and objections have been cleared, the governing body of INEC approved it for use as the Commission’s policy guiding the extant election. What law has been violated and, what is wrong with this ?   I have taken time to explain these processes of policy formulation from political to executive and then departmental policy, to appreciate the legal basis of the card reader as it relates to the verification of the identity of a voter prior to offering the voter a ballot paper.

This hierarchy of policies is necessary to allow for flexibility in operations because the higher the order of laws, the more difficult they are to adapt to required field changes, hence greater specificity and details are required from the departmental policy makers who are the operational implementers. Historically, the identification/verification of eligible voters has been a serious operational issue that has undermined efforts to create a credible voter register.

The introduction of the card reader to strengthen Section 49 of the Electoral Act has helped to minimize the historical problems of massive election manipulation characterized by bogus moonlight and landslide figures that some folks want us to return to at this stage. Above all, we must not forget that the card reader was funded under the law and that is the 2013 and 2014 Appropriation Acts passed by the National Assembly. The card reader was taken to the Senate for demonstration and subsequently tested in 12 states of the federation successfully with no objection. Why now?

But there are those who insist that the card reader is a violation of the Electoral Act as some of your colleagues have argued   in court and the recent position of the Supreme Court appears to justify their position?

I don’t agree that the Supreme Court judgments prescribe a redundancy for the card reader. We must make that distinction because, in law, the distinction of meaning and hermeneutic clarity is very important. Although the Supreme Court explanatory notes for its judgments is yet to be released as l speak to you now, however, excepts from the Ebonyi governorship judgment delivered on February 5, clearly shows that there is a serious misunderstanding of the   process   as contained in section 49 and the usual accreditation process carried out separately at different times from actual voting that Section 49(2) refers to partly and here lies the misdirection about compliance with the voting process in totality as against compliance with voter identification   or the accreditation process. We must not forget that in the last elections, a number of people who were accredited, some went home and never came back to vote, while others didn’t show up at all. Now, with just a manual register alone, an induced and satisfied presiding officer can tick all the names at any time as having voted, but with a card reader this is difficult if not impossible because the card reader records the time every voter was accredited on the memory and here lies the distinction between accreditation period which is different from voting time.   Compliance with voter identification/verification has two options: The use of the card reader with the register and, where this is not possible for technical or other cogent and verifiable reasons, the use of an incident form and the ticking of the left hand side of the register against the voter without denying him/her. Eventually, total votes cast would always be reconciled with the incidence form. Therefore, compliance with either is compliance, provided these verifications were satisfactory to the presiding officer and they correlate with other audit trails. The audit trail which should be provable in dispute resolution should include the evidence that the affected voters did present themselves at the polling unit, were duly registered with a register of collected PVC to prove this, listing in the manual register on same date, corroborating evidence of card the reader indicating the total number of accredited voters as an audit trail report.

What would be the fate of future elections, now that the Supreme Court has shut down the use of the card reader?

No, the apex court has not shut down the use of the card reader in our elections though that appears to be   the overwhelming and very disappointing feeling of Nigerians, except something contrary and categorical in the expected reasons is stated to that effect. The confusion l see from the   given reasons of  the Ebonyi guber election case appears to indicate that people are   mixing up the verification/accreditation process of Section 49, which is separate and ought to be separated from voting process.

The number of accredited voters must be ascertained, announced and recorded in the form EC8A at the close of accreditation before voting that commences at 1:30 pm and, at the end of voting, the total number of votes cast should tally with the number of accredited voters; it could be less but cannot be more, it should not be far less than total votes recorded for candidates and must not exceed total number of accredited voters or number of registered voters, otherwise, it will be canceled in accordance with Section 53 of the Act.

The introduction of the card reader is within the autonomy of the Commission as an independent umpire to organize and undertake the process of conducting election in Nigeria. The Electoral Act   says that for a voter to be given a ballot paper to vote, the presiding officer must be satisfied that the voter is an authentic voter. In our daily life,   when you present a cheque in a bank, the paying officer   does not go back to the financial regulators or legislature to direct how to verify your identity as an account holders. Similarly WAEC, JAMB and so on do not require the legislature to redirect them on how to verify the identity of exam candidates.

These are done in the most effective manner through departmental policies in the form of operational codes or practices, guidelines and manuals. The difficulties with our people in complying with a simple method of digital verification as it affects voters is because people want to rig elections   and are determined to avoid transparency in the process of identifying voters. Some of us are not fooled by the deliberate hurdle or road-block being mounted against the use of the card reader and do not expect this resistance to die without a fight.

We should not forget our terrible and shameful electoral history all through the first republic   when we had just one frame of reference   which is the manual register, and has been been used serially to   declare   fake and bogus figures of “moonlight” and “landslide” victory votes   until the current efforts to clean up now with the use of the card reader. Today, there is an electronically compiled national register of voters   with the biometric data of each voter to corroborate the number of voters in any one polling unit, which makes such ballot stuffing a joke in today’s scenario.Going forward, what we should be thinking of is how to strengthen the use of the card reader with technology and not how to make it redundant.