By Chief Mike Ozekhome
INTRODUCTION
The National Assembly was thrust into chaos during the consideration of the Electoral Amendment Bill on the 15th day of July, 2021. Both Houses of the National Assembly were presented with the duty of reviewing the Electoral Act of 2010 by the advent of the Electoral Amendment Bill. While the House of Representatives were unable to pass the Electoral Act Amendment Bill because of major contentious issues that emanated during the debate, the Senate, however, successfully passed the Electoral Act (Amendment) Bill, 2021 (“the Bill”). While this amendment should have been an upgrade to the Electoral Act, 2010, the reverse seems to be the case. The Bill dragged Nigeria back into the past, when its Clause 52(3) stripped the Independent National Electoral Commission (INEC) of the exclusive powers to conduct voting electronically.
The Senate’s ruling was divided between members of the ruling All Progressives Congress (APC) and those of the Peoples Democratic Party (PDP) on the practicability or otherwise of transmitting election results electronically. The debate on this sole issue rendered other provisions in the Bill less prominent, as it became the centre of attention. While all the supporters for Clause 52(3) of the Bill were members of the APC, members of the PDP expressed their reservations and voted otherwise. It is brow-raising that significant Bills and Laws passed in Nigeria seem to be debated more on a party-basis, rather than on the basis of merits. The decision of the Senate has received nationwide scrutiny for its unconstitutionality and as a Constitutional Lawyer who always seeks to contribute to Nigeria’s development, I cannot sit and watch from the side-lines as a spectator. It is on this basis that I offer my humble analysis of the Senate’s decision.
THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
The 1999 Constitution establishes INEC as a federal executive body tasked with regulating elections into different political offices in Nigeria. The Constitution broadly defines the scope of the Commission’s powers, functions and responsibilities, and provides for the appointment of the Chairman and other members of the Commission by the President, subject to the Senate’s confirmation. The functions of INEC include organising and supervising all elections to political offices; registering and monitoring the operation of political parties in accordance with the provision of the 1999 Constitution and Acts of National Assembly; conducting voter and civic education; promoting knowledge of sound democratic election processes; etc.
Notwithstanding the appointment of the Chairman and other members of the Commission by the President (Executive) subject to confirmation by the Senate (Legislature), INEC is an independent body. The word “independent” is forged into INEC’s name to emphasise the importance of its independence when carrying out its functions. Moreover, its mission statement reads, “to serve as an INDEPENDENT and effective EMB committed to the conduct of free, fair and credible elections for sustainable democracy in Nigeria” (underline supplied for emphasis). INEC is therefore empowered to carry out all its functions independently, free from external control and influence. Both the 1999 Constitution and the Electoral Act, 2010, provide that INEC is the regulatory body in charge of operating the electoral system of voting in Nigeria.
ELECTORAL SYSTEM OF VOTING
The electoral system or voting system in Nigeria is a set of rules that determine how elections are conducted and how their results are determined; when elections occur; who is allowed to vote; who can stand as a candidate; how ballots are marked and cast; how they are counted; how they translate the election outcome; and other factors that can affect the result. The duty to operate Nigeria’s electoral system has been bestowed on INEC by the Constitution of the Federal Republic of Nigeria, 1999. Section 78 of the 1999 Constitution provides, in clear and unambiguous words, thus:
“The registration of voters and the conduct of elections shall be subject to the direction and supervision of the Independent National Electoral Commission”.
ELETRONIC VOTING
Electronic voting (also known as e-voting) is voting that utilises electronic means in aiding the casting and counting of votes. It encompasses a range of internet services, from basic transmission of tabulated results to full-function online voting through common connectable household devices. E-voting may be limited to simple tasks such as marking a paper ballot, or comprehensive enough to include vote input, vote recording, data encryption and transmission to servers, and consolidation and tabulation of election results.
E-voting can be done either physically (through electronic voting machines located at polling stations which can be supervised by representatives of governmental or independent electoral authorities) or through remote means (such as the internet, where the voter submits his or her vote electronically to the election authorities, from any location. A functional e-voting system must perform most of these tasks while complying with a set of standards established by regulatory bodies, and must also be capable to deal successfully with strong requirements associated with accuracy, privacy, security, integrity, swiftness, auditability, accessibility and effectiveness. This regulatory body is provided by section 78 of the 1999 Constitution to be INEC.
TYPES OF ELECTRONIC VOTING SYSTEMS AND COUNTRIES THAT HAVE UTILISED THEM
Paper-based voting systems
Electronic voting systems for electorates have been in use since the 1960s, when the United States of America (USA) made use of punched card systems in its 1964 presidential election. Since then, different types of electronic systems have been utilised during elections. Paper-based voting systems originated as a system where votes are cast and counted by hand. But, electronic tabulation gave rise to systems paper cards or sheets could be marked by hand, but counted electronically. These systems include ballot marking devices, digital pen voting systems and punched card voting. The Johnson County of Iowa, USA, made use of these systems in 2010.
Direct-recording electronic (DRE) voting system
A DRE voting machine records votes, processes data with computer software, and records voting data and ballot images. After the election, it produces a tabulation of the voting data stored in a removable memory component and as a printed copy. The system helps to transmit individual ballots and vote totals to a central location for consolidating and reporting results from polling units. This system was greatly used by the USA in 2004, where over 28.9% of its registered voters made use of the DRE voting system. In 2004, India adopted the DRE voting system in the form of Electronic Voting Machines (EVM) to conduct elections to its parliament with 380 million voters casting their ballots using more than one million voting machines. DRE voting machines continue to be used in all elections in Brazil and India, and also on a large scale in Venezuela and the USA. It was however decommissioned in Netherlands after public concerns were raised.
Internet voting system
Internet voting can use remote locations (voting from any internet capable computer) or can use traditional polling locations with voting booths equipped with such internet capable computers. Internet voting systems have been used privately in many modern nations and publicly in the USA, United Kingdom, Switzerland, Brazil, France, Portugal, Spain and Estonia. In Switzerland, voters get their passwords to access the ballot through the postal service. Several voters in Estonia cast their vote via the Internet, as most of those on the electoral roll have access to an e-voting system.
Online voting system
Online voting is majorly used by the Japanese private sector, with smartphones being the mainstream used for online voting. This system of voting is also utilised in Australia, Estonia, Switzerland, Russia and the United States. The introduction of online voting in municipal elections in the Ontario, Canada, resulted in an average increase in turnout of around 3.5 percentage points, as it helped to induce some occasional voters to participate who would have abstained if online voting was not available. In the 2017 Estonian local elections, the internet voting system proved to be most cost-efficient system introduced compared to other voting systems.
Electronic Ballots
Electronic voting systems may use electronic ballot to store votes in computer memory. This voting system dissolves the risk of inadequate ballot papers and also removes the need for printing paper ballots, which are usually at a significant cost. The electronic ballots can be programmed to provide ballots in multiple languages for a single machine. This advantage with respect to different languages is unique to electronic voting. This was used in King County, Washington where the electronic ballot provided access to Chinese in the US Federal election. This is obviously useful in a diverse multi-ethnic country like Nigeria who boasts of over 374 ethnic groups eith different languages (according to Professor Onigu Otite). This would better inform voters (who are not well versed in English language) and encourage them to participate in the election process.
BENEFITS OF ELECTRONIC VOTING
Electronic voting technology helps to speed the counting of votes, reduce the labour costs of workers who manually count votes and provides improved accessibility for voters. Ultimately, it helps to decrease expenses used in conducting elections. Results are reported and published faster. Voters save time and cost by being able to vote independently from their location, with no form of duress, panic voting or forced voting, which will likely overall voter turnout.
It is also more secure than ballot/physical voting. Here, cases of election malpractice often experienced in elections conducted in Nigeria – such as ballot boxes snatching and burning, shortage of ballot papers, over-crowding in polling units (especially in a time where Covid-19 is ravaging), disruption and discontinuation of voting by street thugs and even security agencies, having one person thumbprint on multiple ballot papers – will be significantly limited and ultimately avoided.
CONCERNS ASSOCIATED WITH ELECTRONIC VOTING
Critics of electronic voting argue that humans are not equipped to verify operations occurring with an electronic machine and therefore, the operations cannot be trusted. Cases have been recorded of machines making unpredictable, inconsistent errors. Therefore, there is no guarantee that the collated and tabulated results are authentic and accurate. This is further worsened by the fact that commercial voting machines results may be changed by the company providing the machine or any skilled hacker.
There is also the issue of cost. While e-voting may decrease expenses in the long run, it is very expensive to introduce. The installation of electronic voting systems are very high; so high that many governments do not invest in it. Many also critic electronic voting to be unnecessary believing that it is not a long-term solution. Afterall, it retains many problems associated with physical ballot voting.
Moreover, electronic voting is usually practicable in countries with technological growth and development. Countries with low technological advancement and low network/internet coverage will face issues with e-voting. People without internet access and/or the skills to make use of such e-voting means will be totally excluded from the voting process, which is a breach of their right to vote. It is this concern that electronic voting and transmission of votes would disenfranchise some Nigerians in areas with poor or no network coverage, that led members of the APC to recommend that for electronic transmission of results to be allowed during election, the national network coverage across Nigeria must be adjudged to be adequate by the Nigerian Communications Commission (NCC) and approved by the National Assembly.
THE SENATE’S RULING ON ELECTRONIC TRANSMISSION OF RESULTS
The Senate passed the Electoral Act (Amendment) Bill, 2021, after a clause-by-clause consideration of the report of the Committee on INEC. The Committee on INEC had reported that “INEC may transmit results of elections by electronic means where and when practicable”. Senator Aliyu Sabi Abdullahi (APC, Niger) proposed an amendment to this recommendation on the basis that electronic transmission of results would disenfranchise some Nigerians in areas with poor or no network coverage. Senator Albert Bassey Akpan (PDP, Akwa Ibom) contended this proposal via a motion, which was unsuccessful after a voice vote. The approval of Senator Sabi’s amendment by Senate President, Ahmad Ibrahim Lawan, was met with chaos and uncomplimentary verbal exchanges amongst Senators.
Senator Enyinnaya Abaribe of PDP, Abia, then cited Order 73, calling for division and allowing Senators to contest the ruling of the Senate President. The Senators took turns to vote on the amendment proposed by Senator Sabi and at the end, 52 Senators voted for Sabi’s amendment while 28 voted against it. All 52 Senators who voted for the amendment were from the APC ruling party, while the 28 who voted against were of PDP. There is no other parliamentary or legislative decision taken elsewhere in the world, where the divide is based solely on a political basis, rather than a merit basis.
Consequent upon the conclusion of the open voting, he Senate President thus approved the amendment which provided for electronic transmission of results during elections, but with a caveat that, “the national network coverage is adjudged to be adequate and secured by Nigerian Communications Commission (NCC) and approved by the National Assembly”.
To be continued…
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