By Innocent Anaba & Onozure Dania
The National Assembly recently passed an amendment to the Electoral Act, particularly the section that deals with the electronic transmission of election results, limiting the powers of the Independent National Electoral Commission, INEC, which is constitutionally empowered to administer elections in the country.
By what was passed by the National Assembly, INEC’s quest to transmit election results electronically will now depend on the express permission of the Nigerian Communications Commission, NCC, and the National Assembly itself. Law and Human Rights in this edition sought the views of lawyers on what this portends for INEC, election results transmission, and Nigerians.
NASS can’t stipulate specific date when an election must hold —Owonikoko, SAN
Abiodun Owonikoko, SAN said: “The picture of what the National Assembly will ultimately enact on the issue is still fuzzy. Narratives have differed from commentators within and outside the green and red chambers. Suffice it to say that at this moment, the status of INEC as one of the independent executive bodies under section 153 of the Constitution insulates it from the kind of operational oversight and legislative overreach implied in the proposed amendment to subject its decision on how to conduct elections to parliamentary say-so and endorsement by NCC.
“Parliament by so enacting will be usurping protected and entrenched executive authority exclusively donated to INEC. NCC on the other hand is an ordinary federal agency – not listed in the state constitution, not vested with electoral responsibility in its establishment objects. Were NCC to be conferred with such preemptive power over INEC function, it will be ultra vires.
“It will take a constitutional amendment to expand its mandate into the terrain of electoral duties. The Supreme Court has settled the issue of limits that parliament can impose on INEC in the discharge of its electoral mandate. They cannot, for instance, insert in the Electoral Act, a stipulation as to the order or Specific date when an election must hold.
“It seems that insertion of a provision in the Electoral Amendment Bill requirement for INEC to seek approval or endorsement of parliament or NCC in taking a decision before election results are transmitted for collation is an unconstitutional overreach. The independence conferred on INEC to conduct elections and discretion to regulate the same will be imperiled by such a statutory power grab by the National Assembly.
“The constitution has seen fit to delineate and separate powers of NASS and INEC on such matters. Ordinary legislation without a constitutional amendment will be a fruitless incursion into the preserved conclave of INEC.”
NASS decision unacceptable — Erugo, SAN
Prof. Sam Erugo, SAN, said: “Like every other right-thinking Nigerian, I am disturbed at the turn of events at the NASS with regards to the issue of electronic voting, and with specific reference to electronic transmission of results. The decision of the Senate to make electronic transmission of results conditional is unacceptable, but we may have to reserve our comments as the House of Representatives, commendably and patriotically, passed the bill in the well-considered version as presented by its Committee.
“This includes section 52 (2), which provides that voting at election and transmission of results shall be in accordance with the procedure determined by the Commission. This version gives INEC a free hand in electronic voting and is really quite progressive. So, there is still room for expected positive adjustment at the stage of harmonization of the Bills as passed by both houses of the NASS.
“I hope that good reason dictated by good conscience, patriotism, and national interest will prevail in the production of the final version. Otherwise, it may be necessary to seek judicial interpretation of the now notorious proviso, ‘provided the National Network Coverage is adjudged to be adequate and secured by the National Communications Commission and approved by the National Assembly.’
“At what point will the NCC and NASS agree, and what will be the form of the NASS approval of INEC’s electronic transmission of results? This condition will appear to contradict the preceding provisions granting power to INEC to determine the procedure of elections. It must not be allowed to stand.”
It is a reckless usurpation of INEC powers — Daramola, SAN
Mr. Olu Daramola, SAN, said: “It is a reckless usurpation of the Constitutional power of INEC. Going by the clear provisions of the Constitution, only INEC can determine how and when to conduct elections. The National Assembly went beyond its jurisdictional competence when it inserted itself and NCC as arbiters on the use of electronic transmission of results. The power of the National Assembly to make laws for the country does not extend to dictating to INEC the modalities for the actual conduct of elections.
“We all know that transmitting results electronically will reduce incidents of rigging and result manipulation which usually occurs during manual transmission of results from polling booths to collation centres.
“It is unfortunate that the National Assembly is out of tune with the people they claim to be representing. This naked abuse of legislative powers, if unchallenged, will further discredit the electoral process in the country.”
NASS has tampered with independence of INEC — Ugwummadu
Former President of the Committee for the Defence of Human Rights, CDHR, Malachy Ugwummadu, said: “There are one or two issues that are settled and undisputed in respect of the questions posed. One is that INEC under Section 153 as well as Section 15(a) of the 3rd Schedule to the 1999 Constitution, has the undisputed responsibility to organize, conduct, manage and carry out the entire business of conducting elections into elective offices in Nigeria.
The other settled issue in the question is the undisputed powers and duties of the National Assembly under Section 4 of the Constitution to make laws for the good governance, peace, and order of Nigeria. So, the background to the question is what has, however, introduced the controversy.
“The background to the situation namely that in the exercise of the powers of the National Assembly to amend the Electoral Act and accommodate Section 50 (2) of the proposed bill which in effect, empowers INEC to electronically transmit results of the election.
“The National Assembly invited the relevant agencies including the NCC which was like soliciting the opinion of an expert body in this whole issue to advise and make inputs with respect to the coverage of Nigeria as a geographical entity with the requisite infrastructure that will make it possible for this electronically transmitted results to happen all over the country. The verdict was that Nigeria was barely covered up to 46 percent.
“At that point, it became easy for the National Assembly to defeat the proposal that, as at today, the result of the election should be electronically transmitted in which case that section was struck down. You could see that from the above perspective, it has become a bit dodgy and tricky because what has happened has tampered or if you like, moderated the independence of the INEC or whittled down, in effect, the claim of the electoral body as an independent entity.
“The fact that it is independent does not mean that it can make laws for itself. Certainly, it could design procedures and processes but not make laws to be bound on it and the Nigerian people. That is clearly the responsibility and duty of the National Assembly under Section 4 of the Constitution. The problem now is that neither the National Assembly nor the INEC is responsible for this mess.
Yes, we could argue strenuously for those who desired it and that it ought to be passed but in my view, the advice that became the foundation of this position by the National Assembly was caused by the insecurity in the country where certain parts of the country had been cut off from network facilities and infrastructure, making it difficult to even deal with other varieties of electronically transmitted processes.
“Therefore, the call should go to the government to strengthen the security situation in Nigeria, restore the services in those areas and make us be where we ought to be.
“Finally, the fact that we are talking and discussing the need to leverage on technological advancement and IT facilities in the 21st Century, point to what is amiss in our country. All of those issues are supposed to be given for maximum operations and effective discharge of duties of responsibility but they are no longer happening because we have insecurity in the country.”
NASS rejection of transmission of results via electronic means, condemnable —Awe
Babatunde Awe said: “The National Assembly has the power to legislate on all matters within its legislative powers, and that includes the amendment or total repeal of the Electoral Act which is the enabling Act for INEC.
“However, the exercise of any powers, whether legislative or executive, must be done in a manner as to enhance the good governance and well-being of Nigerians and not to pander to the whims of a political class or caucus.
“INEC itself has not come out to say that it wants to conduct elections and transmit results via electronic means.
“So, the National Assembly, while its action on rejecting transmission of results via electronic means is condemnable, does not in my view, clearly erode the independence of INEC. If INEC wants to assert its supposed independence and do it electronically, it should submit a bill to the National Assembly for that purpose and not allow the National Assembly to unduly restrict its capacity to deliver faultless elections to Nigerians. It is only then that we can be truly justified in protesting a rejection by the National Assembly.”
The lawmakers are selfish — Omodele
Yemi Omodele said: “I think Nigerians forgot to know how the legislators were elected to the offices they occupy. Do Nigerians want the legislators to bite the fingers that fed them? They know how they got there and they want a repeat of the same hence, their opposition to electronic transmission of results. However, the passage of the bill is not the end of the game.
“The president has to assent to it and until then, it is not yet over. If Mr. President receives it and decides not to sign it into law, it may be returned to the National Assembly for reconsideration before making it to become law vide two-third majority and during that period, new or fresh issues may be raised that Nigerians may be happy about. It suffices to say that hope is not lost. Let us wait till the president signs it or not.
“Nigeria is a sovereign state but the international community is watching us on our electoral strategies ahead of 2023. I have said it before that our lawmakers are selfish. They only think about themselves and nothing more. Many of them do not know why they are there. Referring to NCC in respect of the electronic transmission of results amounts to the incompetence of the members of the National Assembly. They have power but they do not know how to use it effectively.”