Category: Guest Post

Guest Post

The 2023 General Elections And The Words Of Fatayi-Williams CJN in AWOLOWO V SHAGARI (1979).

fredericknkobowo

March 3, 2023

INTRODUCTION

Right from 2020 most Nigerian voters expected the wider use of the electronic voting system by the Independent National Electoral Commission (INEC) in 2023. This public choice was influenced by the need to reduce or possibly eliminate irregularities that have come to characterize the election process in Nigeria. The Electoral Act, 2022 is the product of this agitation.

Automation of election process reduces direct human influence and provides an opportunity to solve old electoral problems. Independent National Electoral Commission (INEC) by its own processes and procedures deal with four components of Electronic Voting System (EVS): Electronic Voter Register (EVR), Electronic Voting Machine (EVM), Electronic Voter Authentication (EVA), Electronic Transmission of Results (ETR), Automatic Fingerprints Identification System (AFIS) and Smart Card Reader (SCR).

Independent National Electoral Commission (INEC) now adopts the use of electronic voting (e-voting) and electronic transmission of election results to a single portal. Subject to Section 51 of the Electoral Act, 2022, the result of an election will be substantially affected where it is observed that there was over voting. By the provisions of Section 73(2) of the Electoral Act, 2022 the non-recording of sensitive and non-sensitive electoral materials will make an election invalid.

The Electoral Act, 2022 has set strict punitive measures for offenders. Section 73(3) of the Electoral Act, 2022 provides that a Presiding officer who intentionally announces or signs an election result in violation of subsection (2) is liable on conviction to a fine of N10,000,000 or imprisonment for a term of at least one year or both. Section 120(4) of the Electoral Act, 2022 punishes any person who announces or publishes an election result knowing same to be false or which is at variance with the signed Certificate of return. It makes him liable on conviction to imprisonment for a term of 36 months. Section 120(5) of the Act provides that any returning officer or collation officer who delivers or causes to be delivered a false certificate of return knowing same to be false is liable on conviction to imprisonment for a maximum term of three years without an option of fine. In the same fashion, Section 120(6) provides that any person who delivers or causes to be delivered a false Certificate of return knowing same to be false to any news media is liable on conviction to imprisonment for a term of three years.

CASE SUMMARY: AWOLOWO v. SHAGARI & ORS

FACTS:

An appeal requesting to nullify the 1979 election conducted by the Federal Electoral Commission. This matter was first heard at the Presidential election tribunal in Lagos. Obafemi Awolowo alleging that as far as the records show, no candidate scored not less than 25% of the votes cast in 13 States. The 3rd respondent declared 1st respondent as having won the Presidential election. Obafemi Awolowo disagrees with the result declared on the election. Obafemi Awolowo wants the election declared void and that the Federal Electoral Commission should hold the election, which should have followed on the failure of all the candidates to win at the first ballot.

Shehu Shagari is a member of National Party of Nigeria. Shehu Shagari scored 5,688,857, he also scored at least 25% of votes cast in each of the twelve States namely, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto and in the thirteenth State – Kano, he scored 19.94%. Obafemi Awolowo scored 4,916,651, in total.

ISSUE:

  1. The correct interpretation of Section 34A(1)c)(ii) of the Electoral (Amendment) Decree No. 32 of 1979.

HOLDING:

The appeal was dismissed and cost was awarded on the ground that Shagari was lawfully declared the winner, and that he satisfied the requirements of Section 34A(1)(c(i) of the said Decree. Also, that even if he didn’t get up to more than one third in the 13th State, Section 111 & Section 110 of the Decree would have come to his aid and that judgement would have still be given to him.

Kayode Eso dissented.

NOTABLE DICTA:

“Moreover, until election returns can be computerised in this country, the “mathematical canon of interpretation” put forward by Professor Awojobi (1st petitioner’s witness) in his testimony before the Tribunal will remain impractical and legally unacceptable.” – Per Fatayi-Williams, CJN.

RELEVANCE OF DICTA PER FATAYI-WILLIAMS, CJN

Digital technologies to improve the reliability of election results has become more widely used around the world in the past two decades. They include; biometric voter registration, smart card readers, voters’ cards, optical mark recognition, direct electronic recording, and electronic result transmission. The principal reason for using them is to contain electoral fraud. It also promotes the credibility of elections.

Technology has drastically reduced incidences of electoral malpractices such as; ballot stuffing, result sheet mutilation, manipulations, over voting, alteration of result sheets and hijacking of ballot boxes in the history of Nigeria elections. The Independent National Electoral Commission (INEC) with empowerment from the Electoral Act, 2022 has employed a number of innovative approaches to improve the management and conduct of elections in the country.

  1. Electronic Registration of Election Results: Section 62(2) of the Electoral Act, 2022 provides Independent National Electoral Commission (INEC) with powers to compile, maintain and update, on a continuous basis, a register of election results to be known as the National Electronic Register of Election Results. It is a distinct database or repository of polling unit by polling unit results, including collated election results, of each election conducted by the Commission in the Federation. The Register of Election Results is to be kept in electronic format by the Commission at its national headquarters.
  • Computer Generated Evidence: Section 62(3) of the Electoral Act, 2022 allows for any person or political party to obtain from Independent National Electoral Commission (INEC), on payment of such fees as may be determined by the Commission, a certified true copy of any election result kept in the National Electronic Register of Election Results for a State, Local government, Area council, registration area or Electoral ward or Polling unit, as the case may be, and the certified true copy may be in printed or electronic format.
  • Definition of Return: Section 152 of the Electoral Act, 2022 provides for the meaning of return. It means the declaration by a returning officer of a candidate in an election as being the winner of that election.
  • Re-election: Section 47 of the Electoral Act, 2022 doesn’t only provide for the use of smart card readers or other technological device as may be prescribed by Independent National Electoral Commission (INEC) but in subsection (3) states expressly that 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. This process was absent in 1979.
  • Transmission of Election Results: Section 50 of the Electoral Act, 2022 provides for voting and transmission of results at an election subject to Section 63 of the Act.
  • Disputes: Section 64(6) of the Electoral Act, 2022 provides that where during collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the collation officer or returning officer shall determine the correctness of the disputed result based on:
  1. the original of the disputed collated result for each polling unit where the election is disputed;
    1. the smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed;
    1. data of accreditation recorded and transmitted directly from each polling unit where the election is disputed as prescribed under section 47(2) of the Act;
    1. the votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed, as prescribed under section 60(4) of the Act.
  • Electronic Posting of Results: Section 68 of the Electoral Act, 2022 allows for Independent National Electoral Commission (INEC) to post on its notice board and website a notice showing the candidates at the election and their scores and the person declared as elected or returned at the election.
  • Petition: Section 15 First schedule of the Electoral Act, 2022 provides that when a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the selection or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.
  • Election: Section 28(1)(2) and (3) First schedule of the Electoral Act, 2022 provides that at the conclusion of a hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commissioner or the Commission. If the Tribunal or Court has determined that the election is invalid, then, subject to Section 134 of the Act, where there is an appeal and the appeal fails, a new election shall be held by the Commission. Where a new election is to be held, Independent National Electoral Commission (INEC) shall appoint a date for the election which shall not be later than three months from the date of the determination.
  1. Certain defects not to Invalidate Election: Section 135(1) and (3) read together gives an understanding that an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. Furthermore, no election shall be questioned or cancelled by reason that there is a mistake, conflict or inconsistency in the date contained in the result of such election signed by a returning officer or any other officer of the Commission.
  1. Postponement of Election in Emergency: By virtue of Section 24 of the Electoral Act, 2022, where the Commission appoints a substituted date in accordance with subsections (2) and (3), there shall be no return for the election until polling has taken place in the area or areas affected. Notwithstanding subsection (3), the Commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made.
  1. Nullification of Election: Section 136(1)(3) provides powers to a Tribunal court to declare as elected the candidate who scored the highest number of valid votes cast at an election and satisfied the requirements of the Constitution and the Act. This takes effect where the candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election.

CONCLUSION

Over time, the country has ossified into a two-party system. The competition in 1979 was more intense than in recent time. All the five parties that contested in 1979 pulled their weight. The votes were evenly spread, ranging from 33.77% for the party with the highest votes to 10.01% for the party with the least votes. The 2023 presidential election will be the most competitive multiparty poll since 1979. With the new Electoral Act, the 2023 General elections will be a radical departure from the pattern set by the seven elections held between 1979 and 2019.

Written By Abasiodiong Ekarika

REFERENCES

  1. Hbriefs, “Case summary of Obafemi Awolowo v. Shehu Shagari (1979).”
  2. Electoral Act, 2022.
  3. Premium Times, April 29, 2022, “Technology, E-voting and Credible Elections in Nigeria.”
  4. This Day Live, July 17, 1992, “Echoes of the 1979 Presidential Poll.”

INTRODUCTION Right from 2020 most Nigerian voters expected the wider use of the electronic voting system by the Independent National Electoral Commission (INEC) in 2023. This public choice was influenced by the need to reduce or possibly eliminate irregularities that have come to characterize the election process in Nigeria. The Electoral Act, 2022 is the product of this agitation. Automation

Guest Post Law Central

REGISTRATION AND PROTECTION OF DOMAIN NAMES AND BUSINESS ENTITIES NAMES AS TRADEMARKS IN NIGERIA

fredericknkobowo

December 22, 2022

ABSTRACT

In this 21st century, the world is evolving at a very fast pace, domain names and business entities names are the most valuable assets for almost every sphere ranging from marketing, sales, and customer services. The business entity name is very essential to any company or business, it identifies your business, and thus protecting it should go beyond registering the name with Corporate Affairs Commission (CAC) (hereinafter referred to as CAC). Although registering a business entity name with CAC, is an integral part for Start-up Company or business, to prohibit the registration of the same name by another business or company, trademark is essential, as it guarantees the absolute protection any entrepreneur would desire for his business. Domain names have become an integral part of every business carrying out any online commercial activity; it is an indispensable tool used by business owners to reach out to their existing and incoming clients globally. Today domain names are not just the names of the websites of different entities, but also act as business identifiers that play a significant role in the promotion of business entities. This article seeks to discuss how trademarks can be used to protect business entities’ names and domain names.

Written by Emem Ekott ESQ

Click to Download the Article

ABSTRACT In this 21st century, the world is evolving at a very fast pace, domain names and business entities names are the most valuable assets for almost every sphere ranging from marketing, sales, and customer services. The business entity name is very essential to any company or business, it identifies your business, and thus protecting it should go beyond registering

Guest Post

Data Protection In Nigeria: How Has Nigeria Fared So Far?

fredericknkobowo

March 9, 2022

Introduction

The idea of data protection was a seemingly distant dream in the years prior to 2019. Before now, there was little to no legislation on Privacy and Data Protection in Nigeria up until the advent of the Nigeria Data Protection Regulation (NDPR) on January 25th, 2019. Prior to this time, the only Nigerian legislation which addressed the issue of privacy and by extension data protection in Nigeria was the Constitution of the Federal Republic of Nigeria which recognized privacy as a fundamental right, providing specifically that the privacy of citizens, their homes, correspondences, telephone conversations and telegraphic communications is hereby guaranteed and protected.[1] From the wordings of the Constitution in this regard, it is safe to say that its scope of application is extremely limited as it does not address fundamental issues that are typically associated in data protection and which are addressed by subsequent Nigerian laws and regulations guiding the implementation of data protection in Nigeria.

With the advent of the National Information Technology Development Agency (NITDA) Act in 2007 as well as the NDPR and corresponding Data Protection Implementation Framework in 2019, privacy and data protection in Nigeria has become more developed than it has ever been. The NITDA Act established the National Information Technology Development Agency (the Agency) as the foremost regulatory body responsible for the regulation and monitoring of data protection in Nigeria as well as for the safety and security of the Personal Data[2] of Data Subjects[3] in Nigeria. The Agency has been active in the promotion of data protection in Nigeria as well as the safety and security of the rights and freedoms of Data Subjects in Nigeria as seen in its rapid response to cases of data breaches that have occurred since the inception of the NDPR. An example of this rapid response is seen in the recent breach on the Lagos State Inland Revenue Service (LIRS) website where in the process of harmonizing historical tax data, the Personal Data of taxpayers in Lagos state was leaked to the public from the LIRS platform. The NITDA quickly swung into action, initiating an investigation process which involved questioning LIRS as Data Controller[4] and its Data Administrator[5] as well as the review of relevant policies, procedures and documentation of the parties involved.[6] Upon the conclusion of its investigation, NITDA subsequently imposed a fine on the LIRS while considering the cooperation as well as the prompt remedial actions taken by LIRS during the investigation to mitigate the impact of the breach incident. This goes to show just how far and how seriously the regulatory authority takes issues of data protection as well as how much the application of the NDPR has developed in just over a year of its enactment.

Although the provisions of the NDPR is similar to that of the European Union General Data Protection Regulation which was adopted on the 14th of April 2016 and became enforceable from the 25th of May 2018, the NDPR has also come up with innovations which set it apart from its European counterpart. One of such innovations is the establishment of a nouveau class of professionals known as Data Protection Compliance Organizations duly licensed by NITDA to act as intermediaries between organizations (Data Controllers)  in Nigeria which process the Personal Data of customers, employees, vendors etc. (Data Subjects) and the regulatory authority. DPCOs are given the duties and responsibility of carrying on training, auditing, consulting and rendering services and products for the purpose of ensuring compliance by Data Controllers with the provisions of the NDPR as well as any foreign data protection law or regulation having effect in Nigeria.[7]

Another innovation by the NDPR is the compliance requirement of filing by Data Controllers. The NDPR specifies that a Data Controller processing the Personal Data of above 1,000 Data Subjects within six (6) months of the enactment of the NDPR is required to file an Initial Data Protection Audit report with NITDA.[8] Data Controllers who process the Personal Data of 2,000 (Two Thousand) Data Subjects and above are required to file an Annual Data Protection Audit Report on or before the 15th of March of the following year.[9] This innovation particularly has resulted in a massive development on Data Protection in Nigeria as Data Controllers have tried to ensure compliance with the Regulation thereby increasing the level of awareness of data protection in the country. In addition to the NDPR, NITDA also issued a Data Protection Implementation Framework which offers a very in-depth explanation and expatiation of the language and application of the NDPR and also contains a number of drafts of compliance documentation which are required by the NDPR. [10]

To further demonstrate how Nigeria has fared since the inception of the NDPR , there has been a plethora of cases on data protection which goes to show that although slowly but surely, data protection is indeed gaining traction in the Nigerian environment and every day, Data Subjects are becoming more aware of their rights under the NDPR and other data protection legislation. In Paradigm Initiative for Information Technology v Nigerian Identity Management Commission (NIMC), one of the issues for determination was the right of the Respondent to process personal data without adequate security. This case was the first time the Federal High Court took judicial notice of the NDPR as a legislation on data protection in Nigeria. Subsequently, Nigerians have started enforcing their rights under the NDPR in the court of law. In Confidence Staveley v Access Bank Plc,[11] the Applicant sued the Respondent for the disclosure and transmission of the Applicant’s personal data to a third party without her consent or any other legal basis as provided by the NDPR thus constituting a breach of confidentiality as well as a breach of the Applicant’s  rights as provided by the NDPR. Another recent case between the Bisola Olukayode v Google Inc.,[12] the Applicant sued for a breach of her rights under the NDPR, particularly of her right to be forgotten/ right to erasure as provided under the NDPR[13] when the Respondent refused to take down news linked to her name from its platform despite numerous requests by the Applicant. It is expected that there would be more cases on data protection in the coming years and judicial pronouncements by the Nigerian courts will further aid the development and improvement of data protection in Nigeria.

The NITDA has also been proactive in its status as a regulatory body for data protection in Nigeria by releasing regulations and guidelines for the management of Personal Data in Nigeria. One of such guidelines is the recently released Guidelines for the Management of Personal Data by Public Institutions in Nigeria released by NITDA on the 18th of May 2020.[14] The government is the biggest Data Controller in Nigeria as it processes the Personal Data of all Nigeria citizens at all levels including at the Federal, State and Local levels. It is based on this observation that the NITDA, in a bid to ensure the continuous safety and security of the Personal Data of Nigerian Data Subjects that it released the Guidelines to monitor and regulate the processing activities of Public Institutions.[15]

However, despite the seemingly increasing level of development in data protection in Nigeria, when comparing the application of and compliance with the NDPR with that of other data protection legislations in other jurisdictions, such as the EU GDPR, Nigeria still has a long way to go and a number of issues to address if it must stand tall among countries that are achieving a high level of implementation of data protection principles. One of the issues of compliance with the NDPR is that of awareness of the Regulation in Nigeria. A survey done by NITDA shows that about 588 organizations were compliant with the NDPR’s requirements, particularly as regards filing their Data Protection Audit Reports. A further analysis showed that about 93% of the compliant organizations were based in Lagos, which is just one state in a country of 36 states. This means there is a long way to go in ensuring that Data Controllers in other states are aware of the provisions of the relevant data protection legislations.

Another challenge the NITDA is facing is the paucity of human and financial resources. One of the key objectives of the NDPR is to ensure that Nigerian businesses remain competitive in international trade through the safe-guards afforded by a just and equitable legal regulatory framework on data protection and which is in tune with best practice. [16]  The European Union currently has a list of whitelisted countries to which adequacy decisions have been issued and with which its Member states may transfer personal data.[17] Based on the above highlighted objective by the NDPR, it is safe to say that it is a goal of NITDA to also be given an adequacy decision by the EU so as to commence exchange of Personal Data between both jurisdictions. In order for this to be achieved, it is pertinent that the government offers support to the NITDA both financially and otherwise so as to ensure that the challenge of paucity of funds is adequately managed and eradicated for Nigeria to consequently achieve the same level of implementation of data protection principles as the European Union and even more.

Despite the challenges faced by NITDA as regards the implementation of Data Protection legislation in Nigeria, there is still hope for the future as there are ongoing efforts being made by the Agency as well as the government to ensure the improvement of data protection in Nigeria. One of such efforts is the assent of the Data Protection Bill which is currently being reviewed. NITDA confirms the increased cooperation by all relevant government organs to ensure that Nigeria passes a world class data protection law which is fit for the peculiarities of the Nigerian environment. One of the notable implications of the Bill is the establishment of the Data Protection Commission as well as the grant of powers, duties and obligations which will serve to make the Commission one of the strongest, independent and value adding data protection authorities in Africa.

Conclusion

In conclusion, it is safe to say that given the above highlights, the future of data protection in Nigeria is very bright and will be easily secured with the cooperation of the relevant stakeholders as well as through consistent efforts at enforcement by the NITDA.

written by Uwemedimo Atakpo Jnr.

[1] Section 37 of the 1999 Constitution as amended.

[2] Personal Data means any information relating to an identified or identifiable natural person (‘Data Subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; It can be anything from a name, address, a photo, an email address, bank details, posts on social networking websites, medical information, and other unique identifier such as but not limited to MAC address, IP address, IMEI number, IMSI number, SIM, Personal Identifiable Information (PII) and others.

[3] Data Subject means any person, who can be identified, directly or indirectly, by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural, or social identity.

[4] Data Controller means a person who either alone, jointly with other persons or in common with other persons or a statutory body determines the purposes for and the manner in which Personal Data is processed or is to be processed;

[5] Data Administrator means a person or an organization that processes data

[6] https://www.vanguardngr.com/2019/12/were-investigating-lagos-revenue-agency-%e2%80%95-nitda/

[7] Article 1.3 (xiii) of the NDPR

[8] Article 4.1 (5) of the NDPR

[9] Article 4.1 (7) of the NDPR

[10] https://ndpracademy.ng/legislations.php

[11] REF/51575/2020

[12] REF/51571/2020

[13] Article 3.1 (9 & 10) of the NDPR

[14] https://nitda.gov.ng/wp-content/uploads/2020/08/GuidelinesForImplementationOfNDPRInPublicInstitutionsFinal1.pdf

[15] Public Institution refers to a Ministry, Department or Agency of the Federal Government, State Government Local Government, or any venture funded either completely or partly by government or a company with government shareholding either at the State and Federal levels.

[16] Article 1.1 (d) of the NDPR

[17] https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/adequacy-decisions_en

Introduction The idea of data protection was a seemingly distant dream in the years prior to 2019. Before now, there was little to no legislation on Privacy and Data Protection in Nigeria up until the advent of the Nigeria Data Protection Regulation (NDPR) on January 25th, 2019. Prior to this time, the only Nigerian legislation which addressed the issue of