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Friday, March 29, 2024

Illegality Or Otherwise Of Card Readers In Nigerian Electoral Jurisprudence – By S.C. Peters, Esq.

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General Introduction

There have been several and varied contentions to the validity or otherwise of the use of card readers in the forth-coming general elections. Without any iota of doubt, the history of our electoral laws unequivocally shows that the concept of card reader is new to our electoral processes. So many Nigerians including lawyers and judges might be hearing of this concept for the first time in their lives. It was said to have been used in the general elections of Ghana in 2012.

DIVERGENCE OF VIEWS

There are principally two schools supporting and opposing the planned use of the card readers machine for the 2015 general election in Nigeria.

The proponent of the system believed that the card reader procedure has the capacity to prevent or minimise rigging in the sense that there would not be multiple voting while the opponents believe that in the peculiar circumstances of the Nigerian situation, the card reader is designed to assist a certain political party to win the general election. The major plank of their argument is that the card reader machine must have been programmed to assist a pre determined winner of the election by ensuring that so many persons would discriminately  be disenfranchised to deny other parties of favourable votes thereby ensuring the winning of an INEC preferred or pre determined party. There is also the sentiment about the use of a faith based bank to transfer money for printing of permanent voters’ card  and the configuration of the card reader machine.In any event, in the eyes of the law, the socio political reasons advanced for and against the use of the card reader machine is to put it mildly, expression of divergent sentiments.

 

POSITION OF THE LAW

However in law, what is important is not the sentiment the members of the public express but what is  the  true position of the law on the issue? Directly put, sentiment should command no place in the interpretation and application of the law. Speaking expressly on this cardinal philosophy of the law,  Eko, J.C.A , in Ogbiri v. N.A.O.C. Ltd (2010) 14 NWLR (Pt. 1213) at p. 225 paras. A-B pungently said;

“But the indubitable fact is that the trial  of the respondent as the defendant at the trial court, for negligence was conducted before a court of law.  By dint of sections 135-137 of Evidence Act it is only by cold facts presented to the law court that the civil rights and obligations of the parties before it are determined and nothing more.  It is trite that sentiments command no place in judicial deliberations.  See Omozeghian v. Adjarho (2006) 4 NWLR (Pt. 969) 33 at 59.”

The compass of the above statement of the Lawlord is that it is the law that should govern the exercise of powers by the Independent National Electoral Commission(INEC).  If the law has not given powers to INEC to undertake a particular exercise,  it will ultra vires the powers of INEC to go outside the parameters of the statute granting it powers in order to do its own thing in its own way and ignore the dictate of the law on the matter.  No.  INEC is not permitted to become a lawless “Leviathan” and behave like the Great Napoleon in the book called “Animal Farm”.   A lawless society is a dangerous society and no one wants to live under such a society.

Our understanding of the law is that INEC must be an impartial body and its impartiality must be driven to  ensuring the conduct of a free and fair election. The law maker in other to ensure the impartiality of INEC in the conduct of a free and fair election in Nigeria, has prescribed by legislative instrument, the procedures to be followed in conducting an election. It is this instrument that is usually called the Electoral Act in our electoral jurisprudence. It is in the above reasoning and sense of the law that the court in the case of Adams v. Umar (2009) 5 NWLR (Pt. 1133) 41 at p. 135 paras B-C held as follows;

“A situation where a body, which is supposed to be an impartial umpire, is accused of selectively bestowing favour on one party against another must be very strongly deprecated.  However, this is a matter for another day.  One earnestly hopes that this is not what transpired in the instant case. INEC, and all its officials acting on its behalf, must take extra and special care to scrupulously adhere to all the provisions of the law that pertain to elections.  Transparency must be the watchword to provide a level playing field for all comers.”

As previously submitted, the issue of card reader is a novel one in our electoral jurisprudence. Proponents have argued that it was used in the Ghanaian Election of 2012 and therefore it could also safely be used in Nigeria.  That rather audacious position is too simplistic to be accepted. There is the need to understand the laws of Ghana and our Nigerian laws on the issue before one could validly jump into that conclusion.  To accept that simple position is to accept the rather curious position that once a law is made in Ghana, it is applicable to Nigeria. It is laughable but unfortunately that appears to be the position of some Nigreians.

It is no doubt an established fact that Ghana used the card reader for her 2012 election. But the Electoral Commission in Ghana did not wake up one morning  to introduce that approach without having the backing of its laws. Indeed thebiometric verification process approach(card reader)  had the backing of Article 51 of the Constitution of  Ghana  which gives the Electoral Commission of Ghana the power to make rules and regulations to guide the conduct of her elections. Consequently, an instrument  titled Public Elections Regulations, 2012 (C.L 75) which is like our Electoral Act was made under the said Article 51 of the Constitution of Ghana  and Section 30 (1) (2) of the Public Elections Regulations, 2012 (C.L 75) provided for a biometric verification process. In the exact words and language of the said  Section 30 (1) (2)Public Elections Regulations, 2012 (C.L 75);

30(1)       A presiding officer may, before delivering a ballot paper to a person who is to vote at the election, require the person to produce

  1. A voter identification card or

 

  1. Any other evidence determined by the Commission in order to establish by fingerprint or facial recognition that the person is the registered voter whose name and voter identification number and particulars appear in the register.

30(2)       The voter shall go through a biometric verification         process.

In our understanding, the biometric verification process  is one and the same thing with the card reader as simply called in our electoral  parlance.  As previously stated, the idea of biometric verification process  is new to our electoral process. It has not been previously applied in Nigeria.

Its newness calls for an investigation into its legality or otherwise. This is aptly so and impelling because the investigation of the legal status of this new concept will determine whether illegality has been introduced or about to be introduced into our electoral system.   In the case of A.G Fed: & 8 ors v. Alh. Atiku Abubakar (2007) 10 NWLR (Pt. 1041) 1 at pp. 171-172 paras G-B, Aderemi J.S.C as he then was,  emphasised that when new legal situations arise, a legal solution must be found since no legal problem or issue can defy legal solution.  In His Lordships exact illuminating words;

 “The crucial task here is to interpret the relevant provisions of the Constitution that have been referred to by the parties.  It has been said in one of the briefs before us that the case at hand is, by every standard, a novel one. I entirely agree; given the facts of this case and the little research I have carried out I have not come across any judicial decision relating to the peculiar facts of this case.  But, no legal problem or issue must defy legal solution.  Were this not to be so, the society, as usual, will continue to move ahead, law, God forbid, will then remain stagnant and consequently become useless to mankind.  With this unfortunate consequence at the back of his mind, a Judge, whenever faced with a new situation which has not been considered before, by his ingenuity regulated by law, must say what the law is on that new situation; after all, law has a very wide tentacle and must find solution to all man-made problems.  In so doing, let no Judge regard himself as making law or even changing law.  He (the judex) only declares it (law) – he considers the new situation, on principle and then pronounces upon it.  To me, that is, the practical form of the saying that the law lies in the breast of the Judge.  We (Judges) should regard it as our sacred duty to expound the law as it is by the clear words of the law-makers.  Judges’ duty does not extend to expanding the law; that is the exclusive function of the law-makers.

The card reader proceeding has been explained as one of the processes of accreditation in an election. Accreditation is one of the fundamental elements of the electoral process.  Without accreditation no valid result could originate.  Precisely stated, the origin of an election result is accreditation.  In the case of Nweke v. Ejims (1999) 11 NWLR (Pt. 625) 39 at p. 53 paras. C-D Akaahs, J.C.A (now J.S.C) placed a high but acceptable emphasis on the eminent position of accreditation in an election and pronounced that;

“I also agree that a person cannot vote until he has been accredited and it is the stamping of the voter’s card and the marking of the electoral registrar that proves that the accreditation did in fact take place.  Where the electoral register is not so marked but votes are returned for the particular voting unit it will be safe to conclude that such votes were not obtained through the due electoral process.  Where therefore, the voters register had no marking but Forms EC8A or EC 8A(1) are produced showing scores, such scores can be excluded from the valid votes scored by a candidate at an election”. 

An essential point must here be made that the above dictum was the interpretation of paragraph 20(2) of Schedule 5 to the State Government (Basic Constitutional and Transitional Provisions) Decree NO. 3 of 1999 which provides as follows;

“20 (2)   The Presiding Officer shall-

  1. Cross-check voters card of a person apply for accreditation against the register of voters and may ask the voters if required by a candidate or the party Agent, the following questions or any of the questions, that is…
  2. Not accredit any voter who answers the questions in sub-paragraph 2(a) of this paragraph in the negative;
  3. Mark the name of the voter in the register of voters with biro;
  4. Stamp and sign each voter’s card at the back with the appropriate stamp and state the date and type of election in code”.

We must concede that the above provisions was altered and indeed replaced in the 2002 Electoral Act.  Section 40(1) (2) of the Electoral Act 2002 was re –enacted ippissima verba  (exactly the same words) as Section 49(1)(2) of the Electoral Act 2010 as amended. These two provisions statutorily provided for the procedure to be followed for accreditation process in  the following terms;

Section 40(1) of the Electoral Act 2002:

             Every person intending to vote 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.”

Section 49(1) of the Electoral Act 2010:

             Every person intending to vote 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 full house of the Court of Appeal considered the above provision in the case of Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416 at p. 471 paras B-D.  Salami J.C.A as he then was,  with an air of finality stated the law and said;

“By virtue of section 40 of the Electoral Act 2002 the issue of whether a voter cast his vote is only ascertainable by examining the voters’ registers to ascertain whether the person’s name has been marked as having voted.  The fact is not ascertainable on the voters cards.  DW 2 testified to this effect when he said that the mere fact that a person’s  voter’s card is not signed and marked is not conclusive on the question whether the holder voted or not. Section 40 requires a person who intends to vote to present himself to a presiding officer at the polling unit in which his name is registered with his voter’s card.  The presiding officer on being satisfied that the name of the person is on the register issue him with a ballot paper and indicate on the register that the person has voted.”    (underlining ours for emphasis)

At the risk of self repetition but for the purpose of emphasis and easy reference, Section 49(1) & (2) of the Electoral Act 2010 as amended  provides as follows;

Section 49(1) of the Electoral Act 2010:

             Every person intending to vote 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 question therefore is,  was any biometric verification   process otherwise called card reader mentioned in section 49(1) (2) of the Electoral Act 2010 which is the current statutory regime of the electoral process in Nigeria? The answer is simple and straight forward and it is CAPITAL NO.  There is indeed no mention of a card reader in Section 49(1) (2) of the Electoral Act 2010 as amended.  The germane question therefore is where is the lawful platform upon which the introduction of this card reader is being introduced into our polity?

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With the greatest respect to INEC, it appears it was INEC that introduced this notion via its Manual For Election Officials 2015.  The Manual at page 30 paragraphs  2.3 defined accreditation as thus;

“Accreditation is a process of ascertaining that a voters’ name is in the Register of Voters in a particular Polling Unit, where he/she registered to vote in an election.  Accreditation of voters must be carried out before voting commences on Polling Day.”

At page 32 paras. 2.4.1 the said Manual  provides for APO III (Queue Controller) and APO I (Verification and Statistics)  and prescribed contrary to Section 49(1) of the Electoral Act which specifically mentioned the Presiding Officer and not any APO that;

2.4.1       The Voter shall present himself/herself to the APO III (Queue Controller) for the Polling Unit or Voting Point who shall determine that he/she is at the correct Polling Unit or Voting Point and, if satisfied, direct the voter to the APO I (Verification and Statistics).

 

(a)          The APO I shall:

               Step 1:  request for the PVC from the voter;

               Step 2:  match the photograph on the PVC to the                        Voters;

               Step 3:  read the PVC using the Card Reader to                           authenticate the PVC as that of the voter and                      that the Polling Unit details in the PVC                                correspondent with those of that Polling Unit;

               NOTE:

               Authentication means that the finger prints of the holder match the finger prints read by the Card Reader.

               Step 4:  request the voter to place the appropriate finger in       the place provided on the Card Reader for                      authentication;

NOTE:

  1. a) Appropriate finger refers to any of the fingers of the Voter captured by the DDC Machine at Voter Registration.  If any of the captured finger prints is read by the Smart Card Reader, then the voter is duly authenticated.

 

  1. b) Where the voter has no fingers but his/her PVC has been read by the Card Reader, he/she shall go through the manual accreditation process.

 

Step 5:    on verification by the Card Reader, proceed to document the gender of the voter, and indicate where applicable, any physically challenged person, using the Voter Information and Statistics Form.

2.4.2       The verified voter shall then present himself/herself to the APO II (Register Check and Inking), who shall;

               Step 1:  request for his/her Permanent Voter’s Card;

               Step 2:  check the Register of Voters to confirm that the            voter’s name, details and Voter Identification                      Number (VIN) are as contained on the Register of             Voters;

               Step 3:  tick the left side of the name of the voter, if the            person’s name is on the Register of Voters;

Step 4:  apply indelible ink to the cuticle of the specified            finger-nail on the left hand and issue him/her with             an accreditation tag, bearing the signature of the               PO or the APO II as delegated by the PO, date of                election and the voter’s serial number on the                            Register of Voters;

  1. Left thumb in the case of Presidential and National Assembly Elections slated for the 14thFebruary, 2015.
  2. Left index finger in the case of Governorship and State Assembly Elections scheduled for the 28th February, 2015.

Page 34 of the Manual stipulated that the failure of the card Reader to read the PVC takes away the right to accreditation and voting notwithstanding that the name of the intending voter with the voter’s picture are on the voters’ register of the pooling unit by which, under Section 49(2) of the Electoral Act such intending voter without more, became qualified to vote. Curiously, the Manual upholding this  disenfranchising situation stated  Scenario C at page 34 of the Mannual  and provided that;

Scenario C:  Where the Card Reader fails to read the PVC, the APO I shall refer the voter to the Presiding Officer, or APO (VP) as the case maybe, who shall:

  1. Inform the voter of the problem; that he/she cannot be accredited;
  2. Politely request the voter to leave the Polling Zone and/or hand him/her over to the police where there is resistance or defiance; and

iii.           File a report of the incident using the Incident Report Form;

It is difficult to understand why the biometric verification when the picture on the voters’ card is one and the same person with the picture on the voters’ register. If a careful examination is taken of the specific procedure outlined by section 49(1) (2) of the Electoral Act, the statutory processes  an intending voter is to go through before being entitled to vote are:

(i)                  That the voter must present himself to the Presiding Officer at the polling unit in the constituency in which his name is registered;

 

(ii)                 That the intending voter shall so present himself  with his voter’s card;

 

(iii)                That the  Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper;

 

(iv)               That the Presiding officer is to satisfied himself by comparing the names on the voter’s card presented to him with the name on the register of voters in his possession.  See the Supreme Court case of Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1 at pp. 316-317 paras. E-H.

Our  law puts no extra legal burden on an intending voter to go through a card reader to be entitled to vote once his name is found on the Register of voters of the polling unit/booth ipso facto, INEC  has no powers to subject an intending voter to the rigours of any biometric verification process  or disqualify an intending voter from voting when the voter’s name is on the voters’ register of the pooling unit and his picture on the voters’ card is the same with the picture against his name in the voters’ register. It appears there is  more to the insistence on the biometric verification than meets the eyes.When a man insist on illegality and paints it as legal, certainly he cannot like Caesar’s wife be above suspicion and I think that is the crisis the INEC is presently facing. Simply put,  Our Electoral Act has to be amended for us to bring in the card reader. That was what Ghana did and except that is done, Nigeria’s election premised on card reader is heading towards illegality.

In fact, the Court of Appeal made things easier for an intending voter whose name is on the register of voters by judicially holding that  an intending voter  without a voter’s card  but whose name is on the voters registrar can even vote. That is the pre-eminence of one’s name being on the voters’ register although in Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1 at pp. 316-317 paras. E-H the Supreme Court said an intending voter needs a voters’ card because it is with the voter’s card that comparism would  be made of the name on the voter’s card and the name on the register and the pictures therein. In the case of Haruna v. Modibo (2004) 16 NWLR (Pt. 900) 487 at 550 paras. B-E, Aderemi J.C.A as he then was, succinctly and judicially  illustrated that a man without  voters card but whose name is on the voters register is entitled to vote without the card.  In His lordship’s judicial words;

“Section 40(1) (2) of the Electoral Act, 2002 which relates to the issuance of ballot paper provides:-

Section 40(1):

             Every person intending to vote 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.

             Section 40(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.”

It is never the intendment of the law-makers to disenfranchise any law-abiding citizen. A Judge must always refrain from construing an act or a rule in a manner that will result in absurdity. Blunders or mistakes are bound to take place from time to time.  In the course of same, voters’ cards can easily get into wrong hands.  If emphasis is place on presentation of cards rather than the physical presence of a person who intends to vote incidence of impersonation at the polling center will be more. It seems to me that emphasis should be on the second arm of section 40 of the Act which requires that a Presiding Officer should be satisfied that the name of the person who intends to vote is on the register of voters rather than the first arm which stipulates that the intending voter should rely only on the voter’s card he is holding.  If the name of a carrier of a voter’s card is not on the register of voters he certainly will not be allowed to vote.” (underlining ours for emphasis)

However, the above decision of the Court of Appeal was watered down by the Supreme Court per Akintan, J.S.C in Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1 at pp. 316-317 paras. E-H where His lordship held that a voter’s card was necessary to entitle an intending  voter to vote and that in order to  satisfy himself, all that the presiding officer need to do is by comparing the names on the voter’s card presented to him with the name on the register of voters in his possession. The Supreme Court said that is what is required of the presiding officer  in Section 40 of the Electoral Act 2002, now Section 49 of the Electoral Act 2010 as amended. In the words of His lordship;

The section authorised every Presiding Officer power and duty to ensure and be satisfied with the identity of every person who presents himself to him as a registered voter intending to vote before issuing him with a ballot paper.  This is required to be done by the Presiding Officer comparing the names on the voter’s card presented to him with the name on the register of voters in his possession.  That is what is required of him in section 40 of the Act.    (underlining ours to emphasis how the presiding officer shall be satisfied)

The ever green policy of the law is that where a statute provides a method of doing a particular thing, no other method would be accepted. In Ajuta II v. Ngene (2002) 1 NWLR (Part 748) at p. 300 para. C. Muhammad J.C.A said;

“It has become trite that where a statute provides for the manner of doing a particular act, only that manner as provided by the enabling legislation would be acceptable.  The doing of the act by a vehicle other than that provided by law for its attainment would be declared void.”

Thus every other requirement including the card reader outside the said Section 49 (1)(2) of the Electoral Act that are contained in the Electoral Manual 2015 is illegal and void. The Supreme Court per Akintan, J.S.C in Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1 at pp. 316-317 paras. E-H made the point that the Manual cannot extend what the Electoral Act did not extend or limit what the Electoral Act never limited. According to His Lordship:

“The point raised in the cross-appellants’ issue 3 is whether the court below was right to have voided some provisions of the manual of election officials admitted in evidence at the hearing as exhibit 0.  The manual was prepared by INEC under the powers conferred on INEC in section 149 of the Act. That section provides as follows:

149    The Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for the due administration thereof.”

The powers conferred on INEC in the section enable the Commission to make what is sometimes called bye-laws or subsidiary legislation.  The manual (exhibit 0) in the instant case, was issued as a working guide to the INEC officials.  The section does not or is not expected to confer on the Commission or any of its officials.  Similarly, the powers conferred on the Commission in the said section 149 do not authorise the Commission to amend any of the provisions of the principal Act.  It follows, therefore, that if any of the provisions contained in the manual (exhibit 0) is in conflict with the mandatory provisions of the Electoral Act, such provision will be ultra vires, null and void and maybe so declared by the court since such provision would be outside the powers conferred on the Commission.  See Psychiatric Hospital Management Board v. Ejitagha (2000) 11 NWLR (Pt. 677) 154; and Mayor of Westminster v. London & North-Western Railway Co. (1905) AC 426 at 430. In the instant case, the specific provision in the manual (exhibit 0) which was the subject of the appellants/cross-respondents’ complaint is the one which authorised those whose names appear on the register of votes but had no voters cards to vote during the election.  That directive is said to be contrary to the mandatory provisions of section 40(1) of the Act. That section reads thus;

40(1) Every person intending to vote 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 section authorised every Presiding Officer power and duty to ensure and be satisfied with the identity of every person who presents himself to him as a registered voter intending to vote before issuing him with a ballot paper.  This is required to be done by the Presiding Officer comparing the names on the voter’s card presented to him with the name on the register of voters in his possession.  That is what is required of him in section 40 of the Act.  Any regulation or directive made by INEC which precludes the Presiding Officer from cross-checking the names on the voter’s card with that on the register of voters or which permits either someone with voter’s card alone to vote or, as alleged in the instant case, which permits anyone without voters card but whose names appear on the register of voters to vote, will be acting contrary to the mandatory provisions of section 40 of the Act.  The relevant provision of the manual (exhibit 0) is therefore in conflict with the mandatory provision of the Act and it is accordingly ultra vires, null and void.  The court below was therefore quite right in declaring the said provision in the manual (exhibit 0) as ultra vires, null and void.”

 

            CONFLICT BETWEEN THE  ELECTORAL ACT AND THE ELECTORAL MANNUAL 2015

          Section 49(1)  of the Electoral Act 2010 as amended, mandatorily stipulated that an intending voter shall present himself to the Presiding Officer for accreditation processes. Contrary to this, the Electoral  Manuals 2015 said the intending voter shall rather  present himself  to an Assistant Presiding Officer (APO).  The Latin maxim – “expressio unius est exclusio alterius” which means that the express mention of a name or thing  in a statute excludes the applicability of the things or names not specifically mentioned therein is apt and applicable here to the extent that the  absence of the name of Assistant Presiding Officer (APO)  in Section 49(1) of the Electoral Act underscored the position of the Electoral Act that an APO has nothing to do with the accreditation process in our electoral system.  Our laws say the intending voter shall present himself to the Presiding Officer. It was not an APO that was mentioned. In the case of Kangama v. N.E.C. (1993) 3 NWLR Pt. 284 p. 681,           Sule – Gambari J.C.A as he then was, held as follows:

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“The general rule of interpretation of statute is that when a statue omits to mention a particular thing or as in this case Saturday, it must be presumed that if it wanted the computation to include Saturday, it would have expressly so stated.”

In the case of A.G Fed: & 8 ors v. Alh. Atiku Abubakar (2007) 10 NWLR (Pt. 1041) 1 at pp. 179 para. D, Aderemi J.S.C as he then was,  also stated this ever green policy of the law and said;

“It seems clear to me that the Latin maxims: expression unius personae vel rei, est exclusion alterius or inclusion unius est exclusion alterius – when translated into English Language mean: the express mention of one person or thing is the exclusion of another or the inclusion of one is the exclusion of another; respectively – are very much apposite here; see the cases of Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt. 82) 280 and Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 where the maxim were considered.”

Again, in the spirit and tenor of Section 49(2)  of the Electoral Act 2010 as amended, and as repeatedly emphasised in this discourse,  the entitlement of an intending voter to vote is only premised  on him/her having his/her name on the voters’ register of the pooling unit/booth. It is therefore shocking that the Electoral  Manuals 2015 will imposed another condition of  subjecting an intending voter to a  biometric verification notwithstanding that the intending voter’s  name and picture are on the voters’ register of the pooling unit/booth. This is a clear act of disenfranchising the voter through the instrumentality of the Electoral  Manuals 2015. It is also a clear act of amending Section 49 of the Electoral Act 2010 but it is strange that a bye law can amend a principal legislation. This is against the common sense of an elementary law.  Certainly, this is not the purpose for the powers vested in INEC by Section 153 of the Electoral Act which provides as follows;

  “The Commission may, subject to the provisions of this Act, issue  regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof.” (underlining ours to show that manual is subject to the provisions of the Electoral Act)

Needful to stress that the above  omnibus provision in the Electoral Act  does not operate without any limitation. It is indeed limited by the tenor and latitude of specific provisions in the Electoral Act. Hapily, the law maker subjected the making of subsidiary instrument to the provisions of the Electoral Act. Thus the specific prescription of what an intending voter should have, to be entitled to vote which is having his name on the  voters’ register cannot be enlarged by the Manual to the extent of disenfranchising registered voters who were not given permanent voters’ card or who, the card reader failed to read their voters’ cards.

          It is not one of the objectives of the Electoral Act that registered voters who have presented or are willing to present themselves to the presiding officer as required by Section 49(1)(2) of the Electoral Act should be by any other method(s) or  mean(s) including but not limited to card reader, be disallowed to vote. Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1 at pp. 316-317 paras. E-H. Precisely stated, the  makers of the Electoral Manual 2015 have no such powers to bring in rules that are capable of disenfranchising registered voters from exercising their right to vote as such registered voters.  Lord Radcliffe of old stated this principle beyond misunderstanding in A-G for Canada V. Hallet & Carey Ltd. (1952) A.C. 427, where His Lordship held thus;

“Here the words that invest the Governor with power are neither vague nor ambiguous. Parliament has chosen to say explicitly that he shall do whatever things he may deem necessary or advisable. That does not allow him to do whatever he may feel inclined. For what he does must be capable of being related to one of the prescribed purposes.”

None of the prescribed purposes in the Electoral Act completes any act to disenfranchise a voter whose name is on the voters’ register. It is instructive to call in aid the observation of Hamilton in the The Federalist  referred to by R. S. Bhalla, Essays in Constitutional Law of Nigeria at page 54, where the learned author wrote that;

 

There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitutions can be valid. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

In the case of Olowu v. Abolore, Karibi-Whyte J.S.C as he then     was held that:

“It is not the function of the court to supply omissions in statutes when construing their provisions. This is because it is one of the cardinal rules of interpretation to avoid judicial legislation so as to avoid making nonsense of a statute and defeat the manifest intention of the legislature.”

Also in the case of Onabanjo v. Concord Press (1981) 2 NCLR     399, Koawole J. as he then was, held more emphatically on this          principle as follows:

“I am not prepared to travel outside … on a voyage of discovery. It is equally not the function of the court to write … what the framers … never intended nor am I prepared to fill in any gaps….”

 

Statutorily, the INEC has in respect of the introduction of the card reader  gone beyond its limits. It is now becoming a law unto itself and appears to be playing to the political gallery instead of being properly guided by the law. INEC cannot validly use the card reader in the current state of the law except it is no longer the rule of the law.

Ghana was wise to bring in a new law to accommodate the card reader concept. Our INEC instead of pursuing the amendment of the law to accommodate the new invention decided to develop  false confidence that it can do and undo under the cover of “an umpire”.  But being an umpire should not be interpreted to mean being the National Assembly to change the rule of the game half way. With respect, the rule of the electoral  game in respect of accreditation is what has being stated in Section 49(1)(2) of the Electoral Act 2010 as amended. In A.G Fed: & 8 ors v. Alh. Atiku Abubakar (2007) 10 NWLR (Pt. 1041) 1 at pp. 179 -180 Paras H-E, the Supreme Court held as follows;

“I do not fight shy to say that the fundamental issue we are invited to determine here smacks of political inter-play. And if the political issue now calling for determination is so serious and enormous, as the one at hand, judicial pronouncements founded on the judex’s personal conviction as to where the justice and rightness of the matter lie (having regard to the present state of the constitutional provisions presently, being considered), would make the judiciary lose its authority and its legitimacy.  That is not healthy for the development of the law and its administration. Let me point out that no Constitution is perfect in the sense that it provides a clear-cut and/or permanent or everlasting solution to all societal problems that may rear their heads from time to time. As the society grows or develops so also must its Constitution –the grundnorm- whether written or unwritten.  In any geographical area which has a written Constitution whether such written Constitution will grow along with that society will depend on whether that area is blessed with articulate, forward-looking, industrious and diligent legislators.  But let Judges be properly advised that if divinely endowed to see some short comings in any provision of the Constitution which the people have voluntarily fashioned out for themselves through their elected representatives, beyond making a subtle point of the lacuna in their judgments, no slightest attempt must be made by them to effect any correction or an amendment of the law as it presently stands, by either removing or adding some words to the law as it stands now. I hold the strong view that “law-making” in the strict sense of that term, is not the function of the judiciary.  Let there be no incursion by one arm of the government  into that of the other.  That will be an invidious trespass.” 

We think Ambassador Rufus Akeju, an Osun State Resident Commissioner made sense when he was quoted in an article in  This Day Live of the 16/3/2015 to have said at a certain round table that;

“We in the INEC know that card reader is desirable but there is a law banning anything electronics.  If we use card readers, some people may go to court and they will win because the card readers are electronic devices.  The legal constraints that will make us to use the card readers has not been discharged.  We will use the card readers in February, 2015 elections and by that time we hope that the ban on it would have been discharged”. (underscoring ours)

It is sad that the legal constraints that disabled the card reader from being used in  Ekiti and Osun States elections have not still being removed. Those obstacles are alive as the Electoral Act 2010 under which the Ekiti and Osun States elections were held has not been amended in any form. The Electoral Manual cannot amend it either. We shall live with these obstacles until they are lawfully removed. Those who have strong reasons to feel these obstacles are outdated should be better approach the National Assembly.

 

CONCLUSION

In view of the foregoing, it is self concluding to state that head or tail, back or front the involvement of a card reader or an APO  who is not even the Presiding Officer under the Electoral Manual 2015 is beyond the specific contemplation and limitation of the Electoral Act. INEC is certainly on its own and in a voyage in uncharted sea when it introduced the card reader exercise into our electoral system. Where this illegal act will lead the nation to when people having their names on the voters’ register are disenfranchised on an election day can be disastrous. This is so because the intention of the law maker and the legal effect  of Section 49(1)(2) and  Section 61(1) (2)(3) &(4) of the Electoral Act 2010 as amended, is that a presiding officer cannot validly order for the removal of a person from a pooling unit when such person is entitled to vote.Thus a protest by a disenfranchised person(s) in a pooling unit could be tolerated since the man has a right to vote but being disenfranchised by extra legal means.

 

 

S.C. PETERS ESQ.

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