The 2023 General Elections And The Words Of Fatayi-Williams CJN in AWOLOWO V SHAGARI (1979).
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
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.
- The correct interpretation of Section 34A(1)c)(ii) of the Electoral (Amendment) Decree No. 32 of 1979.
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.
“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.
- 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:
- the original of the disputed collated result for each polling unit where the election is disputed;
- the smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed;
- 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;
- 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.
- 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.
- 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.
- 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.
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
- Hbriefs, “Case summary of Obafemi Awolowo v. Shehu Shagari (1979).”
- Electoral Act, 2022.
- Premium Times, April 29, 2022, “Technology, E-voting and Credible Elections in Nigeria.”
- This Day Live, July 17, 1992, “Echoes of the 1979 Presidential Poll.”