By Prof. Itse Sagay, SAN

In this summary, I make comment on the important issues raised by the Supreme Court in that case.

1. On Card Reader

The Supreme Court, in  rejecting the use of the Card Reader adopted its earlier views on the matter in Okerekev. Umahi S.C. 1004/2015,  that the use of the Card Reader would ‘dethrone’ and ‘depose’ the Voters’ Register “whose judicial roots are firmly embedded or entrenched in the self same Electoral Act from which it (Voters’ Register) directly derives its sustenance and currency” – per Nweze, JSC.

The question may be asked, how does the Card Reader ‘depose’, or ‘dethrone’ the voter’s Register. After verification by the Card Reader, the voter’s name still has to be identified in the voters’ Register and ticked before he can vote. It must be noted that both the Tribunal and Court of Appeal emphasized that, the Card Reader was intended to and did strengthen the application and efficacy of the Electoral Act, by ensuring a credible election for the benefit of Nigerians. The Election  Tribunal stated expressly that “the usage of the Card Reader was complimentary to the usage of the voters’ register. In other words, the two work hand in hand towards ensuring credible elections.  The voters’ Registers properly come to play where a prospective voter has been screened by the Card Reader. The sum total of the role of the Card Reader is that it is complimentary to the usage of the Voters’ Register.”

So where in all this did  Nweze, JSC, discover the ‘deposition’, and ‘dethronement’, of the Voters’ Register by the Card Reader?   Absolutely nowhere.    What  Nweze, JSC, had simply done was to give the Card Reader a bad name in order to subject it to  judicial execution. Has the Card Reader eliminated the  voters’ Register? No! Has it brought  integrity and transparency to the  voters’  Register and the whole electoral process? Yes!

All the Card Reader does is to act as a gate man for the  voters’ Register.   There was no dethronement and deposition here.   There was only a step forward towards free, fair and credible elections – a procedure for sanitizing our elections and for eliminating fraud, dishonesty and rigging from our electoral process.   Should any Supreme Court anywhere in the world resist and reject such a beneficial development in the electoral process? No!

The law as stated in Section 49 has not in any way been altered by the Card Reader.   After being accredited through the Card Reader the voter still  has to have his name checked in the Voters’ Register, and to have it ticked before voting.

Without the process of identification and recording by the Card Reader, the old system of free ticking of all names in the Voters’ Register followed by thumb imprinting in thousands to match the number ticked will continue and our elections will simply be fraud writ large.

So all this talk of superseding and  dethroning,  has no bearing whatsoever on  Section 49 of the Electoral Act 2010.   There is no provision of the Electoral Act banning or  prohibiting the use of Card Readers.   It is wrong of any one to assert that the use of Card Readers is electronic voting.   It shows that such a person cannot distinguish between accreditation and voting.

Section 15 of the Electoral Act clearly empowers the INEC to issue Regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Act and its Administration thereof.   Introduction of Card Readers is doing exactly that.   By law, the guidelines thus issued are as potent as the permitting law, i.e., the Electoral Act itself.

Ultimately, on the Card Reader issue, the only valid questions a Court of Justice ought to raise are as follows:

(i) Was the voters’ Register instituted in the Electoral Act to promote and ensure free, fair and credible elections?

(ii) If this is so (and it necessarily must have been so) did the introduction of the Card Reader enhance the capacity of the Voters’ Register to produce clean, fair and credible elections?

(iii) As all the Courts, even the Supreme Court,  haveadmitted, the Card Reader has sanitized and brought transparency and integrity to the election accreditation process.   The sum total of the usage of the Card Reader therefore is that it is complimentary to the work of the Voters’ register.   “The two work hand in hand to ensure a credible election” – (The Tribunal)

It follows that if all the Card Reader does is to enhance, improve and promote the capacity of the Voters’ Register to ensure or guarantee, free, fair, credible and transparent elections, the Card Reader could NOT in any sense have ‘deposed’,  ‘dethroned’ the Voters’ Register as  Nweze, JSC, wrongly asserted in  Okereke  v.  Umahi. Helping and enhancing the Voters’ Register’s capacity and efficiency cannot be classified as ‘dethroning’ or ‘deposing’ it.   It is still there as the ultimate source after the  clean up  of the process by the Card Reader.   The Voters’ Register could only be regarded as having been dethroned and deposed if its purpose in the Electoral Act was to promote fraud, rigging and massive irregularities.   In other words, it is only when its role and purpose is in conflict with that of the Card Reader, that it can be said to have been dethroned and deposed by the Card Reader,   because the two would then be working at cross-purposes with each other.   But in the circumstances of this case, they were working together towards a common positive objective.

It is really incredible that the Supreme Court threw in the towel to the existing and debilitating culture of election fraud, violence and rigging, when the Law and Justice were pointing in the opposite direction.

Apart from all the above, the Electoral (Amendment) Act, 2015 specifically empowers the INEC to introduce innovations like Card Readers to promote the credibility and sanctity of an election.   By Section 52 of the Act, “voting at an election shall be in accordance with the procedure determined by the Independent National Electoral Commission.” This gives INEC separate and extra powers to introduce processes into the election process in order to enhance its accuracy, transparency and credibility.

2. Substantial Non-compliance

The Supreme Court also asserts wrongly that in order for an election to be nullified, the Petitioner has to establish that not only (i)   was  there a substantial non-compliance with the Electoral Act, but additionally   (ii) the Petitioner must show that the substantial non-compliance affected the result of the election.   This is wrong.

By Section 139(1) of the Electoral Act, 2010,

“An election shall not be liable to be invalidated by reason of non-compliance with this Act if it appears to the Electoral Tribunal or Court that the election

(i)  was  conducted substantially in accordance with the principles of this Act and (ii) that the non-compliance did not affect substantially the result of the election:

It is clear that the provision on substantial compliance in section 146 of the Electoral Act, 2006, is conjunctive in nature.   For an election not to be invalidated, (i) it must comply substantially with the provisions of the Act and (ii) non-compliance, (whether substantial or insubstantial) must not affect substantially, the result of the elections.

In other words, any election has to clear two hurdles in order to be valid; (i) it must comply substantially with the provisions of the Act; (ii) where there was any non-compliance, no matter how insignificant, it must not have substantial effect on the result.

Therefore a petitioner will succeed if he can establish either of the following:

(a) Substantial non-compliance with the Act,  only

or

(b) substantial  effect on the result by  any  degree of non-compliance, no matter how trivial.

I repeat,  the petitioner need only establish  one  of these  two situations in order for the election to be invalid, namely

1. Substantial  non compliance  with the electoral Act including the schedules and regulations.

or

2. Substantial effect on the  election result of any infraction of the Electoral Act, schedules, regulations  etc  no matter how trivial the infraction.

Therefore,  Kekere-Ekun, JSC, was absolutely wrong when she stated at page 67 of her judgment that in addition to establishing substantial non-compliance, the Petitioners were also obliged to also establish that the non-compliance also affected the result of the election. This is an error that some Justices of the Supreme Court have been repeating again and again  inspite  of corrections that have been offered several times.

The authority on this issue is  Morgan v. Simpson  [1974] 3 All ER 722.   This is what Lord Denning said in  Morgan v. Simpson:

“(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated,  irrespective of whether the result was affected, or not.  That is shown by the  Hackney case, where two out of 19 polling stations were closed all day, and 5,000 out of 41,000 voters were unable to vote.

Thus once there is substantial non-compliance, the election is invalid  Cadit  Quaestio!    There is NEVER any further enquiry whether or not the non-compliance affected the result of the election.   It is only when the non-compliance is not substantial, that its impact on the election is considered.   3. Polling Unit to Polling Unit

Thirdly, the Supreme Court wrongly asserts that to establish non-compliance, the Petitioner has to provide evidence from polling unit to polling unit throughout the State.

Again this is incorrect.

In  Hackney Case, Gill v. Reed and Holmes  (1874) 2 O’M & H 77, 31 Lt 69, a leading English case, it was shown that only two out of 19 polling stations (units) were closed on election day and 5,000 out of 19,000 were unable to vote.   The election was invalidated for substantial non-compliance with the relevant election law.

Can an election that was marked by killing, extensive  blood shed, intimidation, mayhem and chaos require a meticulous examination of polling unit after polling unit, to establish non-compliance?   No.   The elections were canceled by outright violence involving, killings, election materials seizure and intimidation of voters as was overwhelming established at the tribunal.   Where there was effectively no election, it is futile going from polling unit to polling unit, looking for what never existed in the first place.

In  Buhari  v.  Obasanjo  [2005] 2 NWLR (Pt. 910) 241 at pp. 520 – 522)  Nsofor, JCA, nullified the whole presidential election based on events  In 7 States  out of 36 States.

To be continued next week