writes that lawyers have thrown their weights behind the call by the NBA’s Electoral Reform Committee for an amendment of the Electoral Act 2022 to give legal backing to the use of Bimodal Voter Accreditation System (BVAS) and electronic transmission of results via the INEC Result Viewing Portal (IReV) to enhance election credibility
The proposition by the Electoral Reform Committee of the Nigerian Bar Association (NBA) that the Electoral Act 2022 shouid be amended to give legal backing to the use of BVAS and IReV in future elections have been applauded by some senior lawyers.
Applauding the proposal, the lawyers disclosed that giving legal backing to the use of BVAS and IReV will not only enhanced the credibility of elections, but will also help in building voters’ confidence.
At a formal presentation before the House of Representatives Committee on Electoral Matters in Abuja, the NBA’s Electoral Reform Committee, led by its chairman, Dr. Monday Ubani (SAN), submitted a detailed memorandum demanding urgent amendment to the Electoral Act 2022 ahead of the 2027 general election.
A major highlight of the demands by the NBA Committee is an amendment to Sections 47 and 60 of the Electoral Act to make the use of BVAS for voter accreditation not just procedural, but a mandatory legal requirement.
The Committee is also demanding that BVAS data shouid be officially recognised as the sole and binding record of voter accreditation in any election.
Besides, the Committee is also calling for explicit legal recognition of electronic transmission of results to IReV so as to curb incidences of post-election manipulations. It also recommended the prosecution of any INEC official who fails to transmit election results electronically.
Furthermore, the Committee also demanded an amendment of Section 29(5) to restrict the right to challenge a candidate’s qualification to only aspirants within the same political party. The Committee also pushed for the retention of the current 14-day time limit for filing pre-election matters under Section 29(8) to ensure timely resolution of disputes.
The Committee also called for an amendment to Section 84 of the Electoral Act to empower INEC to supervise political party primaries, compel early submission of delegate lists, and sanction parties that violate nomination procedures.
The Committee equally proposed amendments to Section 137 to allow the use of certified documents such as BVAS logs, IReV screenshots, and EC8A forms as sufficient evidence of irregularities, thereby minimising the dependence on oral testimony and expediting the judicial process.
The NBA also called for the establishment of an independent Electoral Offences Commission that will be tasked with investigating and prosecuting electoral crimes, including vote-buying, ballot box snatching, violence and collusion by election officials.
Additional proposals by the Committee included the enforcement of INEC’s published timetables to enhance accountability, clearer jurisdiction for election-related cases to discourage forum shopping, harmonised resignation deadlines for public office holders contesting elections, and a pilot scheme for diaspora voting during presidential elections to accommodate Nigerians living abroad.
Uproar over 2023 presidential election
Many Nigerians were upset over the failure of the Independent National Electoral Commission (INEC) to transmit the results of the February 2023 presidential election electronically in real time. Prior to the conduct of the election, the electoral umpire has told Nigerians in clear terms that electronic transmission of results has come to stay in the nation’s electoral process.
Sadly, contrary to the promise made by INEC, no result from the presidential election conducted across the country was uploaded on the electoral body’s server in real time on the election day, even though results from the National Assembly election conducted on the same day were uploaded in real time.
In its response to the issue, INEC said technical hitches with its system were responsible for the delay in uploading the results from the presidential election to its server. Dissatisfied with INEC’s response to its failure to upload election results on its portal in real time, agents of four opposition parties staged a walk out during the collation of presidential election results at the National Collation Centre in Abuja.
Giving legal backing to BVAS and IReV’ll empower marginalized voters and deepen democratic participation
The parties; PDP, LP, ADC and APP took the decision following the rejection of their point of orders by INEC chairman, Mahmood Yakubu.
However, after mounting public concerns, the Supreme Court in a judgement held that INEC’s failure to transmit the election results on the INEC Result Viewing Portal did not affect the outcome of the presidential election. Reading the lead judgement, Justice Okoro said, “When IReV fails, it does not stop the collation of the results.
It deprives people of viewing results. The nonfunction will affect the trust of the electorates in the election. “Unavailability of IReV cannot be a ground for the election to be nullified. The failure did not affect the outcome of the election. The issue is resolved against the appellants”.
Lawyers speak
In the meantime, some senior lawyers have been speaking on the need to give legal backing to the use of Bimodal Voter Accreditation System (BVAS) and electronic transmission of results via the INEC Result Viewing Portal (IReV) to guarantee free and fair poll.
In his submissions, a Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, said the failure to apply the Bimodal Voter Accreditation System (BVAS) was the root cause of many challenges encountered during the 2023 general election.
Ahamba said: “I want to say that failure to apply BVAS, despite the fact that it was statutorily recognised enough, was the problem of the last general election. The use of BVAS was in INEC’s regulation which also has its roots in the Electoral Act. So, as far as I am concerned, it was an embarrassment for us to bypass BVAS.
“I am in support of any action that will give legal backing to the use of Bimodal Voter Accreditation System (BVAS), as well as electronic transmission of results via the INEC Result Viewing Portal (IReV)”. In his comments, another member of the Inner Bar, Mallam Yusuf Ali, also applauded NBA’s recommendations, saying it will help in tackling incidences of results manipulation.
“The NBA’s recommendation is a necessary step towards constitutional clarity and operational efficiency. “Embedding BVAS and IReV into the Electoral Act as a matter of law, rather than mere administrative discretion, ensures that INEC has no leeway to suspend their use arbitrarily.
“This will give legal backing to what Nigerians already expect in practice, and reduce room for manipulation. “While this is not a silver bullet it lays a legal foundation for transparency, especially in result transmission, which has been a major flashpoint in Nigeria’s electoral credibility”, Ali said.
On his part, a constitutional lawyer, Chief Mike Ozekhome (SAN), disclosed that beyond giving legal backing to the use of BVAS and IReV, credible electoral process also entails judicial firmness, INEC’s independence and political accountability. Ozekhome said: “Amending the Act alone is not enough; implementation and political will are paramount. We must not forget that laws are only as strong as the institutions that implement them.
“Entrenching BVAS and IReV in the law is good, but what’s more important is ensuring that the political actors and INEC do not undermine the process through sabotage or selective compliance. “While the NBA’s call is a legal necessity, electoral credibility also requires judicial firmness, INEC’s independence, and political accountability”.
A former National President of the Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, noted that NBA’s suggestions are spot on and consistent with modern day realities, as well as the desire of majority of Nigerians.
“If the credibility and integrity of the last general election, particularly the presidential election, was largely compromised by reason of the legal status of these two improvements, then the NBA’s call for their legalization is not just a welcome development, but also very imperative.
“We almost lost the entire credibility of the 2023 general election over the propriety or otherwise of the use of BVAS and IReV. At the moment, there is no other improvement neccesary for a reformed electoral process other than what NBA is recommending.
“You will recall that the confidence of the electorate in the 2023 general election was largely dashed on account of the so- called technical glitch as was described by INEC, even though no other poll outside the presidential election was affected.
“So, the NBA’s call is a welcome development. The suggestion is spot on and consistent with modern day realities, as well as the desire of majority of Nigerians.
We can’t regress or walk back, but we must walk forward and technology is the only way to go. If we can accredit electronically, why should we shy away from uploading the election results in record time?”, Ugwummadu said. In his views, a Lagos-based law yer, Ige Asemudara, said giving legal backing to the use of BVAS and IReV will improve the transparency and credibility of elections.
He said: “Yes, the request may not guarantee free and fair election, but it will definitely improve its transparency and credibility. It will provide every stakeholder a verifiable means of ascertaining what transpires in terms of votes cast. “It is not going to be a magic wand that will solve all electoral problems, but it definitely will enhance the credibility of our elections.
Thus, it is a noble call by the NBA and the National Assembly should accede to it”. Speaking on the issue, a rights activist, Kabir Akingbolu, while lauding the propositions by NBA, also called on the Supreme Court to come up with a policy judgement to support the innovations.
“The issue of BVAS and IReV is not the only problem with Nigeria’s electoral process. It is how the elections are being conducted. We used card reader and it was bypassed. Even the judiciary is not helping matters because its interpretations of the electoral cases involving the use of technological tools leaves much to be desired.
“The court has excused the use of card reader and BVAS despite the fact that INEC made their usage part of the rules. It is sad that the court has continuously excused the failures of INEC. So, I want to plead that the Supreme Court should come up with a policy judgement that will support these innovations.
Amending the Act alone is not enough; implementation and political will are paramount
“Besides, we should also have an INEC that is truly independent in the real sense of it. There is so much interference in the day-to-day activities of INEC, this ought not to be so. I also want to suggest that we should see how all categories of elections will be held in one day”, Akingbolu said.
A senior lawyer, Onesimus Ruya, while also speaking noted that the proposed amendment will plug legal loopholes and reduce judicial ambiguity. He said: “In the 2023 elections, one of the major controversies was whether INEC was legally bound to transmit results electronically.
“That ambiguity allowed inconsistent judicial interpretations. A clear statutory mandate will eliminate such doubts and guide both the courts and INEC. “This will lead to consistency in electoral jurisprudence, hence improving the predictability and fairness of outcomes”.
Speaking in the same vein, another senior lawyer, Chioma Okeke, opined that giving legal backing to the use of BVAS and IReV will empower marginalized voters and deepen democratic participation. “When voters know that their votes will be digitally recorded and cannot be easily tampered with, participation increases. “In the last general election, the late-hour abandonment of IReV discouraged voters.
Legal entrenchment of the process will restore faith, particularly in rural and vulnerable communities. “This reform can reduce voter apathy, especially among first-time voters and the disenfranchised, thus enhancing democratic inclusion”, she said. In his views, a senior lawyer, Mayowa Ajayi, called for an holistic reform beyond legalising usage of BVAS and IReV.
Ajayi said: “The NBA is on the right track, but electoral credibility also depends on resolving issues like voter inducement, vote-buying, and pre-election violence. BVAS and IReV are tools; we must address the culture of electoral impunity holistically. “While technology improves transparency, it must be complemented by legal, social and institutional reforms”.
A rights activist, Timilehin Ojo, believes the amendment can make INEC more accountable and reduce executive interference. “Once these technological tools are entrenched in law, any deviation by INEC will be unlawful. “It will also reduce undue political pressure on INEC to circumvent the system during elections.
This could promote institutional integrity, giving INEC officers the legal cover to resist interference and ensure credible elections”, Ojo said. In his submissions, a senior lawyer, Destiny Takon, disclosed that there can no free and fair election in the country unless the use of BVAS and IReV were made mandatory.
He said: “In an ideal democracy, political power belongs to the people and it is donated or entrusted to candidates who may be independent or card carrying members of a political party. Abraham Lincoln’s classic definition of democracy, is government of the people, by the people and for the people. “This definition underscores the basic essentials of a democracy, namely:
That it is a people participatory government, people responsible government and a government for the benefit of the people. “The process by which the people express their rights to vote and the choice of whom to vote, is governed by electoral laws or regulations which are tailored to give efficacy to that right to vote and the choice of whom to vote at an election.
“In Nigeria, it is the Electoral Act 2022 that governs the conduct of elections. The amended Act is not devoid of provisions authorizing the use of BVAS or for the transmission of election results vide the Result Viewing Portal (IReV).
“In spite of the clear provisions of the Electoral Act, mentioned here-above, we saw INEC make a fool of the Act and a total and unaccounted waste of the sum of over N400, 000,000,000.00 (Four Hundred Billion Naira Only) which were to facilitate the conduct of a free and fair election in the year 2023.
“The consequence of INEC’s refusal to conform with the provisions of the Electoral Act, was the disjointing and convolution of results in the 2023 elections that reflected only the ulterior motives of the leadership of INEC and those that commissioned them. “The 2019 elections were not any different because INEC then even denied having a database from which the posted results could be retrieved and tendered in court.
“The call by the Nigerian Bar Association (NBA), should therefore, be seen in proper perspective: that the Electoral Act 2022, be amended by the National Assembly, to give legal efficacy to the true spirit of the Act, notably, to ensure that the results announced by INEC, truly reflect the actual votes cast at polling units, for every election, without human manipulation.
“To this end , I think that the way to achieve that dire purpose, is to make the use of BVAS and the electronic transmission of election results through IReV, mandatory, failing which, any results posted by INEC will be invalid to ground an election victory by anyone.
“Until the Act mandates the INEC and admits of no other means of transmission, we would still be repeating the rape and robbery on democracy by INEC and it’s paymasters. In other words, the only valid results that INEC can report must be results transmitted vide its IReV.
“This is moreso, because humongous funds are made available to INEC to employ appropriate technology and therefore, there should be no excuses about the inapplicability of electronic devices employed on the day of any election conducted by it. ” Unless the amendments being demanded by the NBA and other concerned civil society groups are made, Nigerians will be hoping against hope, for an elected president and other representatives of their own choice, come the year 2027.”
