INTRODUCTION
The Nigerian Presidential and National Assembly elections were held on Saturday, 25th February 2023. It was adjudged well-organised relative to past elections mainly due to the use of voting technologies, that is, the Bimodal Voters’ authentication system (BVAS) and the INEC Result Viewing Portal (iREV). The primary objective of the technologies is to curb electoral fraud and increase the credibility and transparency of the electoral process, particularly through the electronic transmission of election results from the polling units to the iREV portal. It was alleged that the Independent National Electoral Commission (the INEC or Commission) breached the Electoral laws when it failed to transmit the presidential election results in ‘real-time’. This commentary briefly examines this claim considering Nigerian laws. Specifically, the Electoral Act 2022 (the Electoral Act), the Electoral Regulations and Guidelines 2022 (the Electoral Guidelines), and the Evidence Act 2011. It answers two questions; First, does the INEC have a legal obligation to transmit election results electronically (in real-time)? Second, does the failure to electronically transmit the result (in –real-time) constitute a breach of the law to warrant the cancellation of the elections by the courts?
1. Does the INEC have a legal obligation to transmit election results electronically (in real-time)?
The Electoral Act and Guidelines make provisions for using the BVAS and iREV in Section 47(2). The BVAS has a dual function. It is used for voters’ accreditation and to upload election results to the iREV, the INEC’s portal where the public can view the election results. The Electoral Guidelines (paragraph 38) elaborates on the process as follows:
On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall: (i) Electronically transmit or transfer the result of the Polling Unit direct to the collation system as prescribed by the Commission; (ii) Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (iReV), as prescribed by the Commission; and (iii) Take the BVAS and the original copy of each of the forms in tamper-evident envelope to the Registration Area/Ward Collation Officer, in the company of Security Agents.
Although the law does not tie the transmission of results to a timeline, the phrase ‘real-time transmission of results’ crept into the popular lexicon because the INEC used it. In October 2022, the Chairman of INEC reportedly assured Nigerians that:
…there is no going back on the deployment of the Bimodal Voter Accreditation System (BVAS) for voter accreditation. There is no going back on the transmission of results to the INEC Result Viewing Portal (iReV) in real-time on Election Day.[1]
Consequently, paragraph 38 above has been interpreted as mandating the INEC to upload election results to the iREV in real-time.[2] This interpretation is misleading for two reasons. One, it is not supported by the clear wordings and literal interpretation of the Electoral Act and the Guidelines, and two, it is technically infeasible to transmit election result in real-time, thus amounts to mandating the impossible. The literal interpretation of the phrase ‘On completion of all the Polling Unit voting and results procedures,’ in paragraph 38 above only suggests that results must be uploaded sometime after the completion of polls and announcement of results, not immediately, contemporaneously, or simultaneously with either the voting or results process. A search for the compound word ‘real-time’ exposes the difficulties of its non-colloquial usage. In an unrelated text, the Committee on Payment and Settlement Systems define ‘real-time’ as “the processing of instructions on an individual basis at the time they are received rather than at some later time”.[3] In Carpenter v. United States,[4] a landmark United States Supreme Court case concerning the privacy of historical cell site location information, the US Supreme Court distinguished real-time data collection from historical data. While the former describes “a download of information on all the devices connected to a particular cell site during a particular interval,” the latter refers to a download over some indefinite period. In Privacy International, La Quadrature du Net and Others,[5] the Grand Chamber of the Court of Justice of the European Union (CJEU) suggested that ‘real-time’ relates to ‘immediacy’ or some spur-of-the-moment action. But can this be the intention of the drafters of Electoral Act and Guidelines?
In Nigeria, the electoral process involves manually casting ballots, and manual result compilation and announcement before upload and transmission of the result using the BVAS. In comparison, India uses Electronic Voting Machines (EVMs), which allow for electronic tallying and transmission of results. However, even in India, the electronic transmission of results is not strictly ‘real-time.’ The Election Commission of India collects and compiles the results from various EVMs, and typically announces the result once the process is completed.[6] Therefore, given the manual nature of the Nigerian process, achieving real-time transmission is a stretch of both the technical and legal meanings of the word.
Perhaps the Electoral Guidelines provided an alternative to ‘electronic transmission’ for this reason. Paragraph 38 of the Guidelines requires the presiding officer to “Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission.” The use of the disjunctive ‘or’ in the paragraph suggests that the results can be electronically transmitted (onto the BVAS) or otherwise transferred, for example, by moving the forms EC8A, on which the results are manually recorded, from one location (the polling units) to another (such as the collation centres at the ward). The court appears to have accepted this position in Labour Party (LP) v INEC[7] when it concluded that “the commission (INEC) is at liberty to prescribe or choose how election results shall be transmitted.”
Alternately, and if we insist that the law does anticipate real-time transmission, it can be further argued that it would be impossible to achieve this given technological challenges. Technologies like the BVAS and iREV are susceptible to cyberattacks like hacking and distributed denial of service attacks because they ‘transmit’ or hold sensitive election information. For example, Germany, ended its use of e-voting precisely because of security concerns. Two voters had challenged the e-voting system before the German Constitutional Court on the grounds, among others, that it was possible to hack the EMVs, thus the results were susceptible to manipulation and technical failures and cannot be trusted. The court upheld this argument.[8] Certainly, the peculiarities of the Nigerian system aggravated security fears and technical failures. The BVAS purportedly suffered technical glitches ranging from poor network and password failure to power outages that impacted the round-the-clock functioning of the machine.
The critical point here is that given the technical meaning of ‘real-time’ and the challenges of the same in an electoral process, the law could not have mandated real-time transmission. The omission of a specific timeline in the Electoral Act is deliberate, and we cannot read what is not explicitly stated in the law. When interpreting a statute, courts generally apply the literal rule of interpretation, focusing on the plain and unambiguous words used by the legislator.[9] Reading the statute as a whole and considering the legislation’s objective and general context, it seems unlikely that the drafters of the Electoral laws would have intended to mandate a technically infeasible method or one highly susceptible to attacks and compromises. The legal maxim “Expressio Unius Est Exclusio Alterius” (the expression of one thing is the exclusion of the other) further supports the idea that if the drafters intended to address mischief, such as electoral fraud, by providing for the real-time electronic transmission, they would have expressly stated the same.
2. Does non-transmission of results (in real-time or at all) constitute a ground to nullify the elections?
This question requires a consideration of the probative value of the electronically transmitted results and the grounds for nullifying elections under the law. Generally, parties may prove their case by tendering documents, which may be primary or secondary evidence.[10] Primary evidence refers to a document for inspection by the court, each part of a document executed in several parts, or each counterpart of a document executed in counterpart against the party who executed it, or documents made from a uniform process with the original and not from it.[11] Secondary evidence includes certified copies of documents given under different provisions of the Evidence Act, such as copies of the original document made by mechanical or electronic processes, copies made from or compared with the original, and counterparts of documents as against the parties who did not execute them; oral accounts of the contents of a document given by some person who has himself seen it.[12]
These provisions suggest that the manually completed form EC8A is the primary evidence of election results, and the copy uploaded unto the iReV, being a copy of the result, is the secondary evidence. The Nigerian Court of Appeal’s decision in Adeleke Ademola v Adegboyega Oyetola & Ors[13] overruling the Election Tribunal’s earlier decision in Adegboyega Oyetola & Anor v Independent National Electoral Commission (INEC) & Ors[14] highlights the complexities in interpreting electoral laws and implementing voting technologies. The Court of Appeal emphasised the importance of physical evidence and the order of the dual mode of transmission of results under the Electoral Act. By recognising the voters’ register, the BVAS devices, and the EC8A form as the foundation of what transpired at the polling units, the court demonstrated a nuanced understanding of the limitations and challenges of voting technologies. The BVAS requires an internet connection for uploading or transmitting results. Still, transmission is not instantaneous, and various human and technical factors may affect its proper functioning. This reasoning led the court to reject the superiority of the BVAS results and emphasise the need for a balanced approach that considers both technology and traditional (or manual) methods in the electoral process. Ultimately, this case serves as an important reminder of the importance of understanding the limitations of voting technologies and the need to carefully consider the legal, technical, and infrastructural challenges accompanying their adoption.
If it is correct that the law is that manually completed results on form EC8A have a higher probative value than the backend result from the INEC, in that case, it is appropriate to ask, what is the purpose of electronically transmitted results? One purpose, stated in the Electoral Act, is that it enables comparison with the manual results and could highlight inconsistencies in disputed elections. But this only underlines further conflicts. First, the courts have held that there is no rule of law mandating the production of secondary evidence of a public document when the original can be tendered.[15] Second, the electronic results may not be reliable as they may not always synchronise with the manual results. In Oyetola’s case (at the Tribunal), the parties tendered different versions of the election result because they inspected and conducted a forensic analysis of the INEC systems at different times. This seeming error only aligns with the purpose of electronic results stated in the Electoral Act, that is, record keeping for elections in the form of the compilation and maintenance of the National Electronic Register of Election Results.[16] This raises the presumption that the register will be updated routinely, and its accuracy and correctness will depend on varying factors.
Finally, it is important to consider whether non-transmission of results in real-time falls under any grounds for nullifying an election. The Electoral Act (in section 134(1) provides that:
An election may be questioned on any of the following grounds — (a) a person whose election is questioned was, at the time of the election, not qualified to contest the election; (b) the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; or (c) the respondent was not duly elected by majority of lawful votes cast at the election.
‘Noncompliance with the provisions of this Act’ is perhaps the operative phrase in the section above. This commentary has established that the electronic transmission of results is neither mandatory nor required to be in real-time or at any specific time. Therefore, the question of non-compliance does not arise. However, the courts have also required that the non-compliance complained of must occur during the election.[17] This qualification warrants a brief consideration. Based on the law, the following occurs during an election; voter authentication, casting the ballot, tallying or computing the results, recording the result manually onto the form EC8A, and signing the results by the relevant electoral officers and party agents and the announcement of the results at the polling units.[18] In contrast, the sidenotes to Section 62 of the Electoral Act refer to the transmission of election results as a “post-election procedure”. Thus, while the manual imputation of the results into the form EC8A is done during the elections, transmission is done after the elections have been concluded. The invariable conclusion here is that even if non-transmission of the results amounts to non-compliance, it is a post-election breach and cannot constitute a ground to nullify the election.
CONCLUSION
This commentary raises important points regarding Nigeria’s legal, technical, and infrastructural challenges in adopting voting technologies. It provided possible interpretations of the relevant Electoral laws to disprove the generally held notion that the INEC breached the law when it failed to transmit results electronically and in real-time. The analysis shows misunderstandings of the workings of voting technologies and their limitations. The critical point from a legal perspective is that an insistence on real-time transmission is a mandate to do the impossible. Further, electronic results have limited probative value, and non-transmission of results is probably not a ground for nullifying an election. Examples from Germany and India demonstrates that while the use of voting technology transcend the transmission of results, it is not the silver bullet for electoral fraud. Therefore, future use of the technology requires extensive research and investment in infrastructure, public consultation, and voter education.
[1] Qosim Suleiman, “2023: No Going Back on BVAS, IReV – INEC” (2022) Available at: https://www.premiumtimesng.com/news/top-news/565777-2023-no-going-back-on-bvas-irev-inec.html?tztc=1 (Accessed 8 April, 2023)
[2] E.g. Antonia Ochei, ‘Explainer: Is INEC in Breach of Law on e-transmission of Results?’ Business Day (March 1, 2023)[3] Committee on Payment and Settlement Systems, “A Glossary of Terms Used in Payments and Settlement Systems” (2003) Available at: https://www.bis.org/cpmi/glossary_030301.pdf (Accessed 20 March 2023)
[4] (2018) 138 S.Ct. 2206
[5] Joined Cases C-623/17, C-511/18, C-512/18, C-520/18.
[6] Representation of the People Act 1951, s 61A
[7] FHC/ABJ/CS/1454/2022
[8] National Democratic Institute, The Constitutionality of Electronic Voting in Germany https://www.ndi.org/e-voting-guide/examples/constitutionality-of-electronic-voting-germany
[9] Awe Olugbenga v Mainstreet Bank Registrars Limited (2015) NICN/LA/515/2013; Ourline Ltd v SCC Nig Ltd [2009] 17 NWLR (PT. 1170) 382
[10] Evidence Act, s. 85
[11] Evidence Act, s. 86(1)
[12] Evidence Act, s 87(1)-(e)
[13] CA/AK/EPT/GOV/01/2023
[14] Petition No. EPT/OS/GOV/01/2022
[15] Okeke v. Attorney-General of Anambra State (1993) 1 NWLR (Pt. 215) 60 at 80; Ajao v. Ambrose Family & Ors. (1969) 1 NMLR 25
[16] Electoral Act, s. 62(2)
[17] Atiku Abubakar & Anor v. Independent National Electoral Commission (INEC) & Ors [2019] CA/PEPC/002/2019
[18] Electoral Act, ss 47 & 60
Dissection of Passwordless MFA 