Is the Electoral Act a Game Changer to Perceived Infractions?

Is the Electoral Act a Game Changer to Perceived Infractions?

Nigeria, as a democratic nation, has struggled to achieve a transparent and fair electoral process in the past decade.

However, on February 25, 2022, President Muhammadu Buhari signed the 2022 Electoral Act Amendment Bill into law.

The Act incorporated several provisions that aimed to increase transparency in the electoral process, with the hope that electoral malpractices including ballot stuffing, alteration, and doctoring of election results would be eliminated.

However, the two leading candidates who lost the presidential election conducted on February 25, 2023, Alhaji Abubakar Atiku and Peter Obi, have a bundle of complaints, suggesting that the new Act made no difference or that its implementation was grossly mismanaged.

Of all the complaints by both candidates, the most prominent infraction was the failure of INEC to transmit results electronically.

Section 47 of the Electoral Act 2022 introduced a framework for the seamless electronic accreditation and transmission of votes into the Nigerian Electoral Process through the Bimodal Voter Accreditation System (BVAS).

The Electoral Act also provides that the presiding officer shall transfer the results and the total number of accredited voters, and the importance of electronic accreditation is reinforced by the provision of the guideline compelling the polling officer and ward collation officer to rely exclusively on the accreditation numbers for determining the number of valid votes.

However, the BVAS system failed at most polling units across the country, with many presiding officers unable to electronically transmit the election results of the polling units, nor upload the result sheets onto the INEC’s collation system and the IReV, citing server issues.

The leading candidates who lost the election contend that the words ‘transmitted’ or ‘transferred’ in the Act are used interchangeably, and the failure to transmit or transfer electronically gives rise to a fundamental defect.

The counterargument is that the use of the word “or” separates the Transmission from the Transfer, meaning physical transfer is not altogether ruled out, but INEC has to justify the use of physical transmission.

Failure to comply with the Electoral Act and its guidelines is insufficient to nullify the election.

Instead, it must be shown that such failure had a substantial impact on the outcome of the election, the burden of which was initially on the petitioner.

However, the new Act appears to thrust the same burden on INEC.

INEC must now show that manually compiled results are authentic and error-free and that non-compliance with the Electoral Act had no substantial impact on the outcome of the election.

With this approach, INEC will have to call evidence to support every result that is challenged by the petitioner, an unlikely feat to surpass.

The resultant effect is that INEC may be compelled to conduct a fresh election, with a cohesive order that it uses the BVAS to transmit results.

In this case, the court will be ensuring full compliance with the provisions of the law.

Credit: https://businessday.ng/news/legal-business/article/is-the-electoral-act-a-game-changer-to-perceived-infractions/

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