…Says it’s Patently Unconstitutional, Breaches INEC Power over Election

…As Reps Engage in Shouting Match

Former Speaker, House of Representatives, Hon Aminu Waziri Tambuwal has strongly faulted as “patently unconstitutional” the decision of the Nigerian Senate to subject the powers of the Independent National Electoral Commission (INEC) over the use of electronic transmission of election results, to the National Communications Commission (NCC) and the National Assembly.

This is coming as the leadership of the House of Representatives which had a shouting match as debate got heated over the issue, opted to invite the INEC Chairman, Prof Mahmood Yakubu and NCC Executive Vice Chairman, Prof Umar Garba Danbatta to its plenary on Friday to address members on the mechanics for electronic transmission of election results.

While passing the Electoral Act Amendment Bill on Thursday, the Senators voted that INEC may consider electronic transmission of election results provided the national network coverage is adjudged to be “adequate and secure”by NCC and approved by the National Assembly.

This conditional approval to electronic transmission of electoral results has irked Tambuwal, now Sokoto State Governor, who says this decision “is patently unconstitutional”.

According to him, “For the avoidance of doubt, S.78 of the Constitution provides that “The Registration of voters and the CONDUCT of elections shall be SUBJECT to the DIRECTION and SUPERVISION of Independent National Electoral Commission”. In Third Schedule, Part 1,F, S.15: INEC has power to ORGANISE, UNDERTAKE and SUPERVISE all elections. The Constitution further provides that INEC OPERATIONS SHALL NOT be subject to the direction OF ANYBODY or AUTHORITY.”

Senators had on Thursday voted publicly along party lines over section 52(3) of the Electoral Act Amendment Bill, which deals with electronic transmission of poll results.

At the end of voting, 28 Senators mostly from the People’s Democratic Party, PDP voted for the original amendment in the report while 52 Senators mostly from the ruling All Progressive Congress, APC, including the Chairman of the Committee on INEC and Electoral Matters, Senator Kabiru Gaya, voted for the amendment as proposed by Senator Sabi Abdullahi. The issue had earlier stirred the hornet nests within the upper house with senators mostly from the PDP calling for a division over the matter.

This means the majority of Senators voted that INEC may consider electronic transmission provided the national network coverage is adjudged to be adequate and secure by NCC and approved by the National Assembly.

But in a press release titled, “ELECTRONIC TRANSMISSION OF VOTES: SENATE DECISION IS UNCONSTITUTIONAL,” Tambuwal argues that, “Unquestionably, the mode of election and transmission are critical parts of the CONDUCT, SUPERVISION, UNDERTAKING and ORGANISATION of elections in Nigeria. Of course the National Assembly has power to flesh out the legal framework but that has to be consistent with the Constitution.

“These constitutional powers have been solely and EXCLUSIVELY PRESCRIBED BY THE CONSTITUTION to INEC, and CANNOT BE SHARED WITH the NCC, or any other Authority, and certainly not a body unknown to the Constitution.

“The Senate decision to subject INEC’s constitutional power to conduct elections to NCC is consequently patently VOID, unconstitutional and unlawful.”

Continuing further, the former Speaker assserts: “We had earlier counselled that that the mode of conducting elections and in particular the transmission of votes be left with INEC who would monitor developments and determine at every election the type of technology to be deployed to ensure free, fair and credible elections. INEC also has constitutional power backed by the Electoral Act to make rules and guidelines to ensure that every vote is counted and that every vote counts.

“If INEC determines that in any part of the country, electronic transmission is not possible, it would by regulations determine the appropriate thing to do.”

He however commended the House of Representatives over its decision to invite INEC and NCC before resolving on the matter.

“The decision of the House of Representatives to call on INEC to address the House and nation on its readiness by 2023 to deploy electronic transmission technology for our elections, seems to be a wise one, I therefore commend the Leadership and Hon Members of the House for this decision and further admonish them to remain on the path of patriotism and deepening of our democracy by engendering and strengthening free and fair electoral process.”

Counseling that, “the best option is to leave this matter in the hands of INEC,” Tambuwal quips: “We admonish INEC to be solely guided by the National interest and the desire of all Nigerians for a credible, free and fair elections in using its constitutional powers and in the deployment of error free technology.”

The House of Representatives has adjourned till Friday by 10 am as the INEC Chairman, Prof Mahmood Yakubu and his NCC counterpart, Prof Umar Danbatta are expected to help analyse electronic transmission in the Electoral Act amendment process.

This was after a rowdy session and a shouting match that was experienced during the Clause by Clause consideration of the Electoral Act amendment.

Clause 50-54 which entails the electronic transmission of votes has been highly contentious in the House putting members at daggers drawn along sharp party lines, following the report consideration presided over by the Deputy Speaker, Hon Ahmed Idris.

While most lawmakers from the PDP insisted on electronic transmission of results in the general elections, some members of the ruling APC opposed it and advised that both manual and electronic transmission should be allowed.

The argument lasted for hours without a final consideration of the report.

Reverting to plenary, the Speaker, Femi Gbajabiamila ruled that the House which ought to had gone for its annual long recess on Thursday will continue on Friday where Dambata and Yakubu will be in attendance to explain better on whether the electronic transmission of voting results is the way forward or not.

Earlier, the Bill was laid before the upper legislative chamber and the lower legislative chamber during the plenary sessions after chairmen of the INEC committees moved a motion.

TheCable had reported how section 50 (2) of the bill was modified by the leadership of both chambers to read: “Voting in an election under this Bill shall be in accordance with the procedure determined by the Commission, which may include electronic voting, PROVIDED that the Commission shall not transmit results of elections by electronic means.”

However, in the latest copy, section 49 (2) of the amendment bill reads: “Voting at an election and transmission of result under this Bill shall be in accordance with the procedure determined by the Commission.”

The bill also holds that “‘transmission’ includes to convey electoral documents or other electoral information or data by manual, electronic or other means (prescribed by the Commission) from one person to another, one place to another, one stage to another, one process to another, or one system to another, as the case may be”.

The recent version of the bill also makes recommendations on who takes the final decision on declaration of results.

Section 65 of the electoral act amendment bill — this makes provision for returning officers to take the final decision on questionable results — which was expunged in the earlier version, has now been retained as section 64 (1).

“The decision of the Returning Officer shall be final on any question arising from or relating to: (a) unmarked ballot paper; (b) rejected ballot paper; and (c) declaration of scores of candidates and the return of a candidate: Provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the Law, Regulations and Guidelines, and Manual for the election,” it reads.

Sub-section 2, however, holds that “the decision of the Returning Officer or the Commission under subsection (1) may be reviewed by a Tribunal or Court in an election petition proceedings under this Bill”.