The Legality of Card Reader

GUEST COLUMNIST: FEMI FALANA

In December last year, the Supreme Court upheld all the disputed governorship elections conducted by the Independent National Electoral Commission (INEC) on April 11, 2015 and undertook to adduce reasons for arriving at each of the judgments at a later date. Last month, the court announced the reasons for the decisions. Essentially, the highest court in the land vehemently disagreed with the judgments of the Court of Appeal which had set aside election results which emanated from manual accreditation instead of the card reader machines prescribed by the INEC. For not validating the use of card reader for voter accreditation, some commentators, including lawyers, have criticised the verdicts of the Supreme Court. The criticisms which have greeted the judgments are not unexpected given the controversy which trailed the use of card reader for the elections.

Before subjecting the position of the Supreme Court on voters’ accreditation by the reader machine to a critical analysis, it is germane to review the introduction of the electronic device into the electoral process. Following a successful and comprehensive compilation of biometric registration of Nigerians of voting age in 2011, the INEC decided to improve on voters’ accreditation for all elections. The device was designed to deal with the manipulation of election results through the declaration of bogus votes that have no correlation with the number of registered voters. Thus, with the use of the card reader machines, the number of total votes cast in an election cannot exceed the number of accredited voters. The strident opposition to the use of card reader for voter accreditation by seasoned riggers of elections was borne out of the realisation that it could substantially eliminate the manipulation of election results.

Although the National Assembly had approved funds for the purchase of the card reader machines in the Appropriation Act of 2014, the then ruling party wanted to use its control of the federal legislature to discredit the electronic device. Hence, the immediate past chairman of the INEC, Professor Attahiru Jega was summoned to the Senate to justify the introduction of the card reader for voters’ accreditation. In taking up the challenge, Professor Jega demonstrated the use of card readers and its capacity to eliminate electoral fraud perpetrated at the accreditation stage of an election. At the end of the exercise, the Senate was compelled to endorse the use of card reader for the 2015 general election. Thereafter, the Electoral (Amendment) Bill 2015, which sought to legitimise the use of card reader was unanimously passed by both chambers of the National Assembly. The Bill was signed into law by former President Goodluck Jonathan on March 20, 2015.

Prior to the amendment, section 52 of the Electoral Act had prohibited the INEC from the use of any form of electronic voting. But following the amendment of the provision, the INEC has been conferred with the power to determine the procedure to use for any election. Specifically, Section 52 states that “voting at an election shall be in accordance with the procedure determined by the Independent National Electoral Commission.” With the amendment of the law the INEC was on terra firma when it determined to use the card reader machine for the accreditation of voters for the 2015 general election.

In spite of the initial hiccups encountered by voters with respect to the use of the card reader machines, it is generally agreed on all hands that the technological device enhanced the credibility of the 2015 general election. Indeed, a number of the election petitions filed by aggrieved candidates were anchored on the gap between the number of voters accredited with the card reader machines and the fake election results declared by some returning officers. At the election petition tribunals, the INEC, through its lawyers, canvassed rather curiously, that the directive on accreditation of voters with the aid of card reader machines was not backed by any law. And that failure to comply with the directive could not vitiate any election conducted by the INEC.

Some members of the Election Petition Tribunals and the Justices of the Court of Appeal upheld the submissions of the INEC lawyers. In their judgments, they ignored the figures of accredited voters obtained via the card reader machines. Others were however convinced that the directive on the use of card reader was backed by the letter and spirit of the Electoral Act. In the case of APC v Kolawole Agbaje Ogbuinya JCA traced the genesis of the card reader when he said “The evolution of the concept of smart card readers is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria. On this core, it is a nascent procedure injected into our infant and fledging electoral system to ensure credible and transparent election. Specifically, it is aimed to concretise our fragile process of accreditation – the keystone of any suffrage. The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the manual for election officials, 2015.”

The above view of Ogbuinya J.C.A was adopted in toto by Ejembi Eko J.C.A. in the case of Umana v Emmanuel … when he stated that “I do not believe that with the fast pace of development globally and the whole world embracing the latest IT technologies, that resistance should be placed to emerging technologies geared towards transparency in elections, by backward thinking interpretations that can only be deleterious to the system. Holding otherwise would be to truncate the great efforts of the 3rd respondent (INEC) in its bid to ensure a credible election and in so doing attempt to plug all loopholes that can be exploited by unscrupulous persons.”

Regrettably, the Supreme Court did not share the progressive view of both Ogbuiya and Eko JJ.C.A on the legal validity of the technological device. Thus, in the case of Edward Okereke v Dave Umahi, the apex court held that the appellant failed woefully to prove the allegation of over voting as he did not tender the voters’ registers along with the card reader reports. Justice Cletus Nweze who read the leading judgment of the court held that “Indeed, since the Guidelines and Manual, which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the Voters’ Register whose judicial roots are, firmly, embedded or entrenched in the selfsame Electoral Act from which it (the Voters’ Register) directly, derives its sustenance and currency….since the National Assembly has not deleted the provision of Section 49 of the Electoral Act (2010), which allows manual accreditation, it would be wrong for any Petitioner to seek to rely solely on the report of the Card Reader (which is intended as a supplementary measure to the already provided means of accreditation) to prove over-voting.”
From the foregoing, it is undoubtedly clear that the Supreme Court did not declare the card reader illegal.

However, it is the view of the apex institution of the judicial system that the card reader is a supplementary measure to manual accreditation. With respect, the appellants did not pray the court to ignore the voters register which were tendered and admitted in evidence at the various election petition tribunals. What was in dispute was the validity of the power of the INEC to replace manual accreditation with voters’ accreditation with the aid of card reader machine. Since manual accreditation was susceptible to manipulation, it was replaced with electronic accreditation by the INEC in exercise of the powers conferred on it by the Electoral Act. In Shinkafi v Yari (unreported suit no 907/2015 of 8th January, 2016) John Okoro J.S.C. rightly noted that “… the function of the card reader machine is to authenticate the owner of a voter’s card and prevent multiple voting by a voter.” Since the INEC has replaced manual accreditation with electronic accreditation, the law does not require a petitioner to tender evidence of manual accreditation along with the report obtained from the card reader machine.

However, in spite of the clear position of the INEC on the mandatory use of card readers for the governorship and state legislative elections, it did not adduce any argument in favour of the use of electronic device at the various election petition tribunals and the appellate courts. It is particularly intriguing that the INEC did not defend the card reader by relying on section 52 of the Electoral (Amendment) Act 2015. If the attention of the Justices of the Supreme Court had been drawn to the 2015 amendment of the Electoral Act, they could not have held that accreditation by the card reader machine was supplementary to manual accreditation. In other words, the judgments of the Supreme Court would have legitimised the use of card reader for voter accreditation. No doubt, the legitimation of the card reader would have had dire consequences on the results of the disputed governorship elections.

Finally, in view of the clear provisions of the Electoral (Amendment) Act 2015, it is indubitably clear that the INEC acted within the ambit of the law when it issued the directive for the use of card reader machine for voters’ accreditation during the last general election. To that extent, the suggestion that the law be further amended to legalise the use of card reader is totally uncalled for.

*Mr Falana, SAN, is a member of THISDAY Editorial Board