The Dean, College of Law, Fountain University, Osogbo, Osun State and professor of Constitutional Jurisprudence, Kazeem Olajide Olaniyan, speaks with IMOLEAYO OYEDEYI on the performance of the Independent National Electoral Commission (INEC) in last Saturday’s presidential and National Assembly election across the country, especially the raging controversy that has continued to trail the non-electronic transmission of election results by the commission.
Before the Saturday presidential and National Assembly election was held across the country, people had been full of confidence that the Independent National Electoral Commission (INEC) would deliver a free, fair and credible election, especially with the presence of the Bimodal Voter Accreditation System (BIVAS) and electronic transmission of results. But the manner in which the poll was conducted and determined appears to have dashed the hope and faith many Nigerians had kept in the commission. In your own assessment, how will you rate the performance of the commission during and after the February 25 election?
Thank you. You see, INEC is expected to be an independent electoral commission and by that, they are expected to be an unbiased umpire, especially when you look at it from the constitutional provisions that set up the commission and the newly introduced 2022 Electoral Act. Based on these parameters, it is expected that every potential voter in the country will have full confidence in the commission and will not doubt its ability to deliver a credible poll. If you go by way of the constitutional provision, that’s the Electoral Act which contains the powers, limitations and of course the procedures for elections in the country, as a voter, I am expected to be very confident that the commission, with the Electoral Act being followed completely, will not suffer any public backlash or controversy during and after the conduct of the much-anticipated election.
However, on that Saturday when the election was going on, the Electoral Act provided for a perfect communication between the BIVAS and INEC server or online result portal. All right-thinking voter had expected that right from the polling unit, the results will be sent straight to the INEC server electronically after the votes would have been counted and sorted at the instances of all party agents, such that when anyone log into the INEC result portal, he or she will be seeing the results as they come in. But we did not see this on Saturday, especially on Sunday when the national collation and presentation of results began. And because of certain factors, people are bound to ask questions, because the constitution and Electoral Act that state how the election should be conducted, clearly stipulating the use of BVAS and smooth electronic transmission of results. So people are bound to ask questions. But the question we ask must be tailored towards the fact that INEC too has the power to review the procedure used in the conduct of the election and transmission of the results. And this review is not within the contemplation of the political parties, if INEC had done the needful in terms of sending the results directly to the server in real time, there wouldn’t have been insinuations that the commission has breached certain provisions of the Electoral Act. Don’t forget that just as Section 60 of the Electoral Act talks of the electronic transmission of results, Section 68 of the same Act talks about the power of review on the part of INEC. So it is the interpretation of that power of review that causes the controversy between the opposition parties and the commission.
What INEC had given as an excuse for not electronically transmitting the whole results as stipulated was that about 24hours to Saturday’s election, there were 72 attempts made to hack its website and server. That was what Festus Okoye said. And on Sunday, the commission again came out to say that within the period of collation of results when the counting had been completed at the various polling units across the country, its server witnessed no fewer than 390 hacking attempts, which then consequently made it to change the transmission plans. The commission claimed that if the raw results were uploaded directly to the server as they come, there were strong possibilities that they would be tampered with. So, it changed the transmission plan, asking the polling agents to record the results in the result sheets, snap them and send the result snapshot to the server instead of raw figures. The commission believed it would not be possible to manipulate the result sheets snapshot sent into the server. And it was this belief that made it change the transmission plan.
But considering the fact that INEC budgeted N302billion, the highest in Nigeria’s history for the 2023 elections and that out of it, about N117billion was set aside for anti-hacking software in view of its decision to deploy BVAS and Result Viewing Portal for the 2023 elections, don’t you think it is not appropriate for the commission to come out 24hours to the commencement of the poll to stay it is ditching electronic transmission of results, which everyone believes will make the election free, fair and credible?
Yes, I agree with you. But the billions of naira that was set aside to fortify INEC’s server against potential hackers is what assisted the commission and made it able to fight the hackers and even be aware of their attempts to break into the result server. It is very possible that the commission wouldn’t have known or been aware of the hacking threats. So we can say the fortification helped the commission in some ways, because none of the hacking attempts was successful.
But is that now enough ground to ditch the electronic transmission of results for the manual methodology a day before the election…?
Assuming the commission had not raised the alarm and the transmission methodology, what do you think would have happened to the election results that gets into the server after being collated at the polling units? It is very possible that the results would have been tampered with on the server and will not tally with what was obtained at the election ground. If this had happened, what do you think would have happened in the country during the national presentation of results? This is because the party agents would surely be appearing online with the results obtained at their polling units to dispute what is being presented in Abuja. And the disparities will tell greatly on the results that will be declared at the end of the day. It was this disparity that INEC wanted to guide against by taking time to allow the results to be recorded on the sheets and then collated at the various state centres before being announced.
But in view of the perceived irregularities, the Peoples Democratic Party (PDP), Labour Party (LP) and others have asked INEC to cancel the election and conduct a fresh poll. Within the confines of law, do you see this as being obtainable?
Yes, it is very obtainable. But don’t forget that it is the court that will decide. The court can decide that fine, INEC should go and conduct a re-run or a reelection as the case may be. The court can even rule that the person declared winner of the election did not win. So, the verdict of the court at the end of the day can take any shape. It is mostly based on the facts as they are being presented by the parties before the court. But I don’t think the commission will want to obey the demands of the aggrieved parties, except it is being compelled to do so by a competent court in the land.
But about six states have dragged the federal government to the Supreme Court over the outcome of the presidential election. They are also asking INEC to change its position that the All Progressives Congress (APC) candidate, Bola Tinubu, won the election….
I really don’t think the state government has such powers. But it is still left for the court to determine and decide which party is right in the eyes of the law, based on the arguments as presented.
But what do you have to say to the appeal made by former President Olusegun Obasanjo that the election results obtained in states where BVAS and IReV weren’t used for result transmission should be cancelled and have a fresh poll conducted in a bid to calm the boiling nerves within the polity?
Well, as constitutionally stipulated, former President Obasanjo, as a bona fide citizen of the country, can air his views on any matter of national importance. He has the constitutional rights to free speech and openly takes a part and sticks to it regardless of what the other parties feel about the move and decision. But all that said, he is a father and elder statesman, who shouldn’t be seen issuing public commentaries that can hit up the polity and truncate the electoral process as the federal government claimed in its response to him. Again, don’t forget that the election that brought him into power was also flawed and marred and even regarded as one of the worst in the history of the country. So, I wouldn’t have expected him to even issue a letter at such a critical period in our nation’s history, when ethnic division and bigotry was at a deafening state. But as I have said, he has the right to air his opinion on any matter just like every other Nigerian, it is now left for the government to look into what he has said or act otherwise.
But what will you advise INEC to do, especially owing to the manner it conducted the election whose outcome is now generating controversy within the polity?
What I will advise all and sundry including INEC to do is to follow what the opposition parties’ presidential candidates have resolved to do, which is take the matter to court to challenge the credibility of the presidential election and its results. I believe the PDP candidate, Atiku Abubakar and LP candidate, Peter Obi, have made the best decision in the best interest of the country by asking their supporters to be calm instead of embarking on violent protest that can bring the country to its knees. Atiku and Obi have done the right thing in the eye of the law by channeling their grievances to the judiciary to reclaim what they called their “stolen mandate” from the ruling party. It is the most lawful thing to do anytime one is aggrieved with an election result. One never can tell what the verdict of the election tribunal would be and whether any of the two opposition parties’ candidates will be declared the rightful winner of the poll as they have claimed and demanded.
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