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INEC, Card Reader And Amended Electoral Bill

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On Friday December 7, 2017, President Muhammadu Buhari declined assent to the Electoral Amendment Bill 2018, citing uncertainty and confusion that shall pervade in the 2019 election if the bill is signed into law as reason for vetoing the bill.

Major high point of the Bill include the use of Card Readers and other technological devices in the conduct of elections which was expected to be fully backed by the law if the president had assented to it.

Invariably, Sections 49 and 52 of the Electoral Act, 2010 was amended and reviewed, thereby mandating the Independent National Electoral Commission (INEC) to use card reader to authenticate voters’ card, use total number of voters authenticated with card reader as actual figure of voters that voted in a giving unit, just as the rejected bill seeks to mandate INEC to transmit the votes casted electronically.

Can the refusal of President Buhari to sign the Electoral Amendment Bill 2018 stopped INEC from using the card reader in all dimension in the next year elections? The following are arguments for and against use of the device in the 2019 elections, with or without the Electoral Amendment Bill, 2018 signed into law.

Section 153 of the Electoral Act, 2010 (as amended) gives power to INEC to issue regulations, guidelines or manuaals for the conduct of any elections in the country. Electoral Act, 2010 draws inspirations from Section 153 (1) (f) and Third Schedule Paragraph F. 15(f) of the 1999 Constitution (as amended). An example of this is Guidelines and Regulations for the 2015 General Elections.

The major defects in the Guidelines and Regulations issued by the commission for the 2015 General Elections was in making card reader voters authentication to take legal precedence over voter registers.

Some of the features of the guidelines and manuals include, ‘’If the Card Reader does not read your PVC, you would not be accredited; The Card Reader is an integral part of collation at the Registration Area (RA) Level

Guideline No. 8 (b) says ‘’the accreditation process shall comprise of verification of voters using the Card Reader.

Just as INEC directed Election Officials to, ‘’compare the number of voters verified by the Card Reader with the number of accredited voters, and total votes cast for consistency…’’ Such features of the guideline gave birth to serial conflicting judgements at the high court and court of appeal in the country until the Supreme Court remedied the situation with its judgements

Professor Attahiru Jega, the then INEC Chairman issued the Guidelines, Regulations and Manual for Election Officials for 2015 Election on October 27, 2014, yet it was held generally to had come too late. The 2019 election is barely 70 days away while the guideline and manual are yet to be issued.

From survey of views conducted among some lawyers in the country, they held that since the conduct of 2019 elections shall be governed by the subsisting Electoral Act 2010, INEC should issue a guideline to streamline voter accreditation procedure vis-a-vis extent of the use of card reader for the conduct of next year election.

Though the lawyers are unanimous in their call on the INEC to issue Guidelines, Regulations and Manual for Election Officials and by extension to guide the public ahead of the 2019 election, but they however divided over what should constitute the guideline or manual.

Some of the legal experts insisted that since Section 49 (2) which direct INEC to use register of voters to authenticate eligibility of voters has not been amended, INEC must discard use of it in the next election. Same lawyers argued that Section 52 (2) of the same Electoral Act, 2010 says the use of electronic voting machine for the time being is prohibited; and for that card reader should not be applied in any way for the conduct of the next election.

They said since INEC neither budgeted for the use of it in the recently approved budget for the commission to conduct election with it, nor train officials for the use of it all this while, use of the machine in view of 2015 experience in the country is enough to discard any idea for the use of it anywhere in the country for the conduct of the 2019 elections.

The use of card reader they held requires INEC officials at the end of voting process to compare the number of voters verified by the Card Reader with the number of accredited voters, and total votes cast for consistency which led to avalanche of conflicting judgements in the court after the 2015 elections.

According to the lawyers, so many voters were disenfranchised in 2015 due to prevalent malfunctioning of the devices leading to high collateral damages to political parties, candidates and voters.

They criticized further saying INEC have been silent for its use for the conduct of re-run elections and state governorship elections held in some states after the 2015 general elections.

Some other lawyers however argued conversely that the process of presenting oneself to a presiding officer with one’s voter’s card and the process of checking a voter’s name on the voter’s register including the ticking of the name constitute what is referred to as accreditation.

They said that what Section 52(2) prohibits is the use of electronic voting machine but not the use of Card Readers for accreditation of voters and that is where it stops.

According to them, for all intent and purposes, a card reader simply verifies and authenticates the identity of the voter, adding that card reader is not an electronic voting machine but is a machine to be used for accreditation of voters only before the actual voting.

A distinguishing factor, they further argued is that in electronic voting, ballot papers are not used and cannot be used, but the forthcoming 2019 general elections are ballot paper-based.

They insisted that the use of card readers for the purpose of accreditation hastens the process as the accreditation of a voter does not take more than a few seconds.

Besides, they said the use of the Card Reader is based on the use of the Permanent Voters Card (PVC) of which fake and stolen PVCs can be easily detected, and this will assist in preventing certain electoral malpractices and assist in ensuring free, fair, credible and peaceful elections across the country.

The commission, they said should still include use of card reader for the conduct of the 2019 elections in the country, otherwise, 2019 election would dogged by ballot stuffing, ballot box snatching and over-invoicing of votes that characterized  previous elections before 2015 election.

Major high point of the Bill include the use of Card Readers and other technological devices in the conduct of elections which was expected to be fully backed by the law if the president had assented to it. The bill also sets the limit of campaign expenses, identifies criteria for substitution of candidates, provides a timeline for submission of list of candidates and addresses problems related to the omission of names of candidates or logo of political parties.

Section 49 was amended by subsisting subsection ‘’1’’ and ‘’2’’ with new subsections ‘’1’’, ‘’2’’, ‘’3’’ and ‘’4’’. Under the proposed section 49 (1), a person must present himself with his voter’s card to a presiding officer for accreditation at the polling unit where his name is registered. The new section 49 (2) mandates the presiding officer to use the smart card reader or any other similar technological device prescribed by the commission for accreditation, verification and authentication of voters.

Following this, the presiding officer shall issue a ballot paper to the voter and indicate on his register that he has voted – section 49 (3).

The amendment to Section 49 provides legal backing for the use of the Smart Card Reader (SCR) in elections. This was to forestall recurring issue in 2015 elections petition cases when the Supreme Court stated that the SCR cannot replace the voters’ register and that its function is only to authenticate owners of voter cards.

INEC will now have been mandated to use the SCR for accreditation, verification and authentication of voters. Also, INEC was to be given discretion to deploy a similar technological device besides the smart card.

Also, Section 49 (4) of the Act was amended and reviewed to now stipulate that where a Smart Card Reader deployed for accreditation of voters fails to function in any polling unit and a fresh Card Reader is not deployed three hours before the close of the election in that unit, the election shall not hold but be rescheduled and conducted within 24 hours.

The new or proposed Section 63 (4) requires that the presiding officer should announce the result at the polling unit and transmit same in accordance with the process prescribed by the commission.

 

Lawyers React

 

Chief Mike Ahamba (SAN)

‘’Well, let’s see what the National Assembly shall do. We have to keep our fingers crossed till the option of overriding the President’s veto of the Bill is exhausted.

‘’If the National Assembly fails to override the president, we fall back to the subsisting law. It won’t stop the conduct of the election, after all the process leading to the election so far were conducted with the provisions of the Electoral Act, 2010’’.

Dr Olisa Agbakoba (SAN)

While urging the National Assembly to override President Buhari’s declined assent on the Electoral Amendment Bill, 2018, he argued that, ‘’the 2015 elections were partly conducted by INEC, using smart cards (card readers) but the Supreme Court held that smart cards are not allowed, not been included in the Electoral Act 2010. The 2015 elections were also partly conducted by INEC using Incident forms; in effect smart cards and Incident Forms were both used to conduct 2015 elections.

Lawmakers will recall that there was a lot of controversy about the use of Incident Forms as it enabled non accredited persons to vote, questioning the credibility of the elections.

‘’In order to remove constraints that will impact the credibility of future elections, such as 2019, the Electoral Act 2010, was amended by the 2018 Bill, to formalize the legal basis of the Smart Cards which was already in use for elections by INEC anyway.

 

Dr Muiz Banire (SAN)

In his piece at the twilight of the 2015 elections titled, ‘’Electronic Card Reader Does not contravene the Electoral Act’’ , former APC legal adviser, Muiz Banire  stated in part as follows:

They have argued that the use of card readers is not allowed by virtue of Section 52 of the Electoral Act, 2010 (as amended). Section 52 of the Electoral Act, 2010 as amended provides: “The use of electronic voting machine for the time being is prohibited.”

The implication of the above in line with subsection 2 is that electronic voting is forbidden in Nigeria. The next questions therefore are: what is electronic voting or an electronic voting machine? What is a card reader and is an electronic voting machine the same thing as a card reader?

A card reader has been defined as “a data input device that reads data from a card-shaped storage medium…. Modern card readers are electronic devices that can read plastic cards with either a barcode, magnetic strip, computer chip or another storage medium.”

On the other hand, “electronic voting or e-voting refers to both the electronic means of casting a vote and the electronic means of tabulating votes…. This can include punch card systems, optical scan voting systems, direct-recording electronic (DRE) and Internet voting.”

An electronic voting machine can then be described as a device or machine by which electronic votes can be cast without the use of ballot papers. Examples of such machines are punch card systems, optical scan voting systems, direct-recording electronic (DRE) and Internet voting.

From the foregoing, it is apparent that the electronic voting machine and the card reader are two different devices that are not necessarily deployed together for all purposes. The further import of which is that electronic voting or the use of electronic voting machines for voting is not the same thing as using the card reader to determine the identity of voters in the process of accreditation of voters. What Section 52(2) prohibits as indicated earlier is the use of electronic voting machine but not the use of Card Readers for accreditation of voters and that is where it stops. Thus, for all intent and purposes, a card reader simply verifies and authenticates the identity of the voter.

To further buttress the distinction highlighted above, a Card Reader is not an electronic voting machine but is a machine to be used for accreditation of voters only before the actual voting. A distinguishing factor is that in electronic voting, ballot papers are not used and cannot be used, but the forthcoming 2015 general elections are ballot paper-based. The use of card readers for the purpose of accreditation hastens the process as the accreditation of a voter does not take more than a few seconds. The use of the Card Reader is based on the use of the Permanent Voters Card of which fake and stolen PVCs can be easily detected, and this will assist in preventing certain electoral malpractices and assist in ensuring free, fair, credible and peaceful elections across the country.

It should be noted that none of the above mentioned methods or technologies by which e-voting can be done is being deployed by INEC for the purpose of voting during the 2015 general elections. The implication therefore is that INEC is not engaging in electronic voting which is what Section 52(2) of the Electoral Act, 2010 actually prohibits. The law is that what is not prohibited is permitted. According to the Court of Appeal in OJO BOLARINWA THEOPHILOUS v FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-9846 (CA),

“The basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted.

Thus, since the use of card readers for the purpose of accreditation of voters is not prohibited by the Electoral Act, same is definitely permitted.

Furthermore, accreditation of voters is not the same thing as casting of votes as a person may be accredited without presenting himself to vote. The difference between accreditation and voting is underscored by Section 49(1) and (2) of the Electoral Act, 2010 as follows:

49 (1) A person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.

(2) The Presiding Officer shall, on being satisfied that the name of the person is on the register of voters, issue him a ballot paper and indicate on the Register that the person has voted.

The meaning of the above is that the process of presenting oneself to a presiding officer with one’s voter’s card and the process of checking a voter’s name on the voter’s register including the ticking of the name constitute what is referred to as accreditation. In order to separate accreditation from actual voting, the INEC Guidelines and Manual for Election Officials provides that accreditation shall hold between 9.00 am and 1pm or such time as the last person on the queue finishes while, voting commences at 1.30pm or so soon thereafter when accreditation must have been completed till the last person concludes.

It is hoped that those stuck in the past would liberate themselves from the twigs of yesteryears and allow this commendable step aimed at fixing our electoral troubles.

 

Barr Valentine Offia

 

National Assembly can override the lack of assent by the president, then it becomes law with INEC should comply with.

‘’If NASS fails to secure two third to override the president, that will mean there is no new law. The current law will remain and INEC will adhere to it.

But, since Section 49 (2) which direct INEC to use register of voters to authenticate eligibility of voters has not been amended, INEC must discard use of it in the next election. Ditto, Section 52 (2) of the same Electoral Act, 2010 says the use of electronic voting machine for the time being is prohibited; and for that card reader should not be applied in any way for the conduct of the next election’’.

 

Barr Muktar Abanika

INEC neither budgeted for the use of it in the recently approved budget for the commission to conduct election with it, nor train officials for the use of it all this while, the use of the machine in view of 2015 experience in the country is enough to discard any idea for using it anywhere in the country for the conduct of the 2019 elections.

‘’For card reader to be used in 2019 election, it means INEC officials still require at the end of voting process to compare the number of voters verified by the Card Reader with the number of accredited voters, and total votes cast for consistency which led to avalanche of conflicting judgements in the court after the 2015 elections.

‘’Mind you,  so many voters were disenfranchised in 2015 due to prevalent malfunctioning of the devices leading to high collateral damages to political parties, candidates and voters. It is also noteworthy that INEC have been silent for its use for the conduct of re-run elections and state governorship elections held in some states after the 2015 general elections.

 

Barr Alasa Ismaila

Alasa believes “INEC should still include use of card reader in its Guideline and Manual for Election Officials for the conduct of the 2019 elections in the country, otherwise, 2019 election would dogged by ballot stuffing, ballot box snatching and over-invoicing of votes that characterized  previous elections before 2015 election.’’


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