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One of the major causes of political apathy in Nigeria is the fear of the electorates that their votes do not or will not count and this apprehension is relatable to the fact that most elections in Nigeria are usually characterized by over-voting, ballot stuffing, under-aged voting, ballot snatching and several shades of violence. These features have often tainted the integrity of the electoral body being the Independent National Electoral Commission (INEC).
In an attempt to regain dampened or lost integrity and perhaps to especially combat the menace of over-voting, INEC in the 2015 General Election in Nigeria introduced the Card Reader System which was the introduction of the use of a device used to read and authenticate the Permanent Voter’s Card (PVC) of every electorate who steps up to vote on the day of the election. The said Card reader was basically used for accreditation of every person who attempts to vote in at the poling units.
It should also be mentioned at this juncture that going into an election, INEC readily have in their possession the register of voters which gives them the statistical scope of the turnout of voters they are likely to receive in a given location. For want of emphasis therefore, it is possible that an individual can forge a PVC in an attempt to vote multiple times and in the process, the number of voters would exceed the number of persons registered to vote. This type of occurrences is what INEC intended to extinguish by introducing the card reader.
As laudable as the innovation was however, it had no legal backing under the erstwhile and repealed Electoral Act, 2010. Consequently, litigants who challenged the outcome of the 2015 General Election and other elections held subsequently could not legally rely on the results generated from the card reader in proof of manifest over-voting. The over-voting would be manifest because upon comparing the number of persons who were accredited to vote and the total number of votes cast, it will be glaring that over-voting had occurred where the total votes cast exceeds the number of accredited voters.
The illegitimacy of the card reader under the erstwhile Electoral Act, 2010 was reckoned by the court in several cases predating the Electoral Act 2022 including BOLAJI & Anor v. INEC & Ors 2019 LPELR 49447 (CA) and NYESOM v PETERSIDE & ORS (2016) LPELR 40036.
For sake of clarity, it should be mentioned that prior to the introduction of the card reader and as a matter of fact, after its introduction without legal backing, the way to prove that over-voting had occurred in an election is that the party who alleges the over-voting must:
1.Tender the voter’s register.
2. Tender the statement of results in the appropriate forms which would show the number of accredited voters and number of actual votes.
3. Relate each of the documents to the specific area of his case in respect of which the documents are tendered.
4. Show that the figure representing the over-voting, if removed, would result in victory for the petitioner.
Bearing these conditions in mind, it is instructive to note that the register of voters is usually a large pile of papers which the certified true copies must be obtained from the electoral body along with the certified true copies of the statements of result. This is usually cumbersome and it is usually an uphill task to establish over-voting before the Election Petition Tribunal or Court as the case may be. It was also the earlier position of the law by virtue of section 49 of the erstwhile Electoral Act, that a person shall be allowed to vote only if the name was on the Register of voters. This provision sufficiently placed the Register of voters on a high pedestal in terms of proof of over-voting.
The status of the Register of Voters in proof of over-voting was restated in the case of IKPEAZU v. OTTI & Ors (2016) LPELR-40056 (SC) through the holding of Justice Galadima JSC. In the said case, the learned counsel to the Appellant contended that with the introduction of the Card Reader Machines, it would no longer be necessary to tender voters’ register and comply with other steps set out earlier. In reaction, the Learned Justice posited that “I am not aware that the Card Reader Machine has replaced the voters register or taken the place of statement of results, in appropriate form”.
That notwithstanding, Hon. Justice Rhodes-Vivour in the same matter acknowledged the significance of the card reader in proof of over-voting when the Learned Justice posited to the effect that the card reader may be the only authentic document if and only if the National Assembly amends the Electoral Act to provide for card reader. “It is only then that the card readers would be relevant for nullifying elections”.
Hon. Justice Aka’ahs also added that ”Unless and until the Electoral Act is amended and electronic voting is introduced, the use of the voters Register will still be necessary. And it is only when this is done that the information on the Smart card Reader can supplant the Manual Register of Voters. In the instant case, over-voting was not proved”.
The National Assembly indeed took the judicial hint and the Electoral Act, 2022 by virtue of section 47 (1) and (2) and paragraph 18, 19 and 20 of the Regulation and Guideline for the Conduct of Election 2022, provides to the effect that a person can no longer vote without the use of the card reader machine for his accreditation. Section 47 (1), (2) and (3) reads thus:
(1) A person intending to vote in an election shall present himself with his voter’s card to a Presiding officer for accreditation at the polling unit in the constituency in which his name is registered.
(2) To vote, the presiding officer shall use a smart card reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.
(3) Where a smart card reader or any other technological device deployed for accreditation of voters fails to function in any unit and a fresh card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if the Commission is satisfied that the result of the election in that polling unit will substantially affect the final result of the whole election and declaration of a winner in the constituency concerned.
While the Regulation and Guideline for the Conduct of Election 2022 named the smart card reader as the Bimodal Voter Accreditation System (BiVAS), Paragraph 18, 19 and 20 of the Regulation accordingly stipulates the step-by-step guideline of accreditation and voting which is now simultaneous. Moreso, Paragraph 20 is emphatic that a person is not able to get accredited following the guideline, such person shall not be allowed to vote.
The cumulative effect of the following is that the card reader has been given a primus state in the electoral process in view of the repeal of section 49 of the erstwhile Electoral Act, 2010 and now, the BiVAS report is the most reliable document to establish the total number of voters. Therefore, should the total number of votes cast exceed the number of accredited voters, the conclusion would be that there is over-voting. The Electoral Act, 2022 has given credence to this position by virtue of section 51(2) which provides that:
(2) Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit.
In the face of the new development, a glimmer of hope has been ignited for the Nigerian electorates as the forthcoming 2023 general election would be the first general election to be held under the dispensation of the Electoral Act 2022. Although there has been utilization as a sort of test run of the provisions of the Act going by the Ekiti and Osun State Gubernatorial elections respectively held on the 18th of June and 16th of July, 2022. While the Electoral Act was signed into law on the 25th of February, 2022. The first election that was held under the dispensation of the Electoral Act, 2022 to our finding, was the National and State Houses of Assembly bye-election held in Jos, Plateau state on the 26th of February, 2022 for election of members of House of Representatives for the Jos North/Bassa Federal Constituency and for office of Member, House of Assembly for Pankshin South Constituency.
In the Governorship elections of Osun and Ekiti state, the practical application of the card reader (BiVAS) was made manifest in the process of election as the accreditation and voting were simultaneously carried out.
Notwithstanding the efficiency or otherwise of the system, the hearing of election petition for the Osun and Ekiti state Governorship election are ongoing as at the time of writing this piece and we are yet to have a feel of what the Tribunals have in mind in relation to the use of card reader (BiVAS), its legitimacy and primus status in proof of over-voting.
While we await the outcome of the Governorship Election Tribunal, the National And State Houses of Assembly Election Petition Tribunal, sitting in Jos, in the case of ADAMU MUHAMMAD ALKALI & Anor v. PEOPLES DEMOCRATIC PARTY (PDP) & 2 Ors. PETITION NO. EPT/PL/NA/01/2022 with judgment delivered on the 2nd of September, 2022 made a bold statement with regards to the use of BiVAS. The Court took a detour from the old regime of relying mainly on the Register of Voters for the proof of over-voting. Instead, the Tribunal utilized the BiVAS Report which itemizes the number of accredited voters in each polling unit and compared with the total number of votes cast in the affected polling units and where the votes cast exceeded the total number of accredited voters as indicated on the BIVAS report, the Tribunal found that over-voting had been established.
The Tribunal posited that:
“Under the current dispensation, over-voting is to be ascertained by comparing the total votes cast with the number of accredited voters and where the number of votes cast exceeds the number of accredited voters, over voting would have been established. This is in line with the meaning of over voting as stipulated in section 51 (2) of the Electoral Act 2022 and paragraph 40 of the Regulation and Guideline for the Conduct of Election 2022. The current dispensation of the use of BVAS therefore renders previous authorities in relation to proof of over-voting, in the view of this Tribunal, distinguishable”.
As at the time of writing this piece, no appeal was lodged against the judgment for the veracity of the decision to be tested.
Nevertheless, the foregoing judicial bravery exhibited by the National and State Houses of Assembly Election Tribunal in Jos, Plateau state is commendable and in tune with socio-political advancement of the Nigerian society as same has the tendency of restoring the confidence of the electorates to troop out en mass to cast their votes come 2023 and elect the leaders of their choice with the faith and confidence that their votes will count.
It must be mentioned that in addition to the card reader (BiVAS) which INEC introduced and which has been statutorily ordained, there are other Mobile Application Technologies which are developed by private entities which can be used in the real time monitoring of the election results at polling units. One of such Application which was developed by Allied Pro Limited is a Political Grassroot Campaign App which has an all-inclusive feature including that of capturing election results as they are counted from every polling unit and even send reports to media houses.
On a final note, the Electoral Act, 2022 may have introduced provisions which are intended to minimize the chances of contention arising from elections. But bearing in mind that it will be difficult to eliminate post-election litigations, it is our hope that the Electoral Act,2022 will bring about a new jurisprudence in the determination of election petition cases particularly as it relates to over-voting and similar electoral vices which mars the credibility of elections in Nigeria.
Ajibola Bello is a Leal Practitioner and Senior Partner at Law Corridor, Abuja.
