The 2023 presidential election has been concluded and the result announced. The electoral umpire, the Independent National Electoral Commission has declared a winner, issued a certificate of return to the presidential and vice-presidential candidate of the ruling party and converted them in the eyes of the law to a president and vice president-elect.

But there are a lot of matters arising from the election, a national feeling of injustice as it appears the votes may not have been properly counted. There was hardly a celebration when the result was announced. Steps have been taken by aggrieved candidates for the judicial review of the process. This discourse reviews the highlights and key challenges associated with the election in the light of extant laws.

The first incident that showed that the elections may not be conducted in accordance with the law was when the President, Major General Muhammadu Buhari (retd) voted in his Daura home in Katsina State and publicly displayed his ballot paper to show the world the candidate of his choice.

The media reports that this precedent was followed by the Attorney General of the Federation who is Nigeria’s chief law officer. By the provision of 122 (1) of the Electoral Act 2022 (Act): “Every person in attendance at a polling unit including every officer charged with the conduct of an election and his or her assistants and every polling agent and candidate in attendance at a polling station or at the collation centre, as the case may be, shall maintain and aid in maintaining the secrecy of the voting.
By subsection (4) of this section: “Any person acting contrary to the provisions of this section commits an offence and is liable on conviction to a maximum fine of N100,000 orimprisonment for a term of three months or both.” Thus, both the president and the Attorney General committed offences. If the President enjoys immunity from suit and legal process, the Attorney General has no such immunity.

The second issue was the late arrival of materials and electoral personnel at polling units. Virtually all latecomers pleaded logistics challenges. Generally, voting which was to start by 8.30am did not commence until 10.30 am and in some instances as late as 2pm and 6pm. In others, the people were disenfranchised.

The Act in S.120 provides for dereliction of duty. It states in (1) and (2) as follows. “(1) Any officer appointed for the purpose of this Act who without lawful excuse commits any act or omits to act in breach of his or her official duty commits an offence and is liable on conviction to a maximum fine of N500,000 or imprisonment for a term of 12 months or both.(2) Any polling official who fails to report promptly at his or her polling unit on an election day without lawful excuse commits an offence of dereliction of duty and is liable on conviction to maximum fine of N500,000 or imprisonment for a term of 12 months or both.”
The late arrival of officials of INEC is an offence attracting sanctions. Pray, the election date and details have been fixed over six months ago. INEC assured and reassured that it was ready and even got a special cash dispensation from the Central Bank of Nigeria amidst the currency/cash crisis. Again, offences have been committed.

To the third and biggest issue that has raised fundamental but unanswered questions on the credibility of the presidential election. By S.160 of the 1999 Constitution which is the fundamental law of the land, INEC may by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions. Again, by S.148 of the Act: “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.”

Thus, both the Constitution and the Act empower INEC to make rules, regulations and issue manuals to regulate elections in Nigeria. It is the power to make subsidiary legislation.

Specifically, S.60 (5) of the Act provides that the presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission. By subsection (6) of the same section: “A presiding officer who wilfully contravenes any provision of this section commits an offence and is liable on conviction to a fine not more than N500,000 or imprisonment for a term of at least six months.”
In pursuance of these powers, INEC made the rules and regulations to regulate the 2023 elections and specifically provided that results shall be transmitted electronically through the BVAS machine. The words used in the regulation were mandatory and left nothing to the discretion of the polling officers.

An agency such as INEC, created by law and given powers to make subsidiary legislation cannot depart from the rules it had made to govern specific circumstances. If INEC had not intended the rules to be followed, it would have expressly stated so in the guidelines.

“Thus, a “subsidiary legislation or enactment is one that was subsequently made or enacted under or pursuant to the power conferred by the principal legislation or enactment. It derives its force of efficacy from the principal legislation to which it is therefore secondary or complimentary.”
The first position of the INEC chairman and his team was to lie that there was a glitch with the presidential election transmission facilities.

When that was debunked through the fact that the results for the House of Representatives and Senate conducted simultaneously with the presidency were being transmitted without hitch, INEC immediately changed its position. A lie needs further lies to cover the track. INEC started postulating that uploading of results was not a precondition for announcement of results.

The chairman of INEC forgot the long controversy about electronic transmission of results during the enactment phase of the Act in the National Assembly. INEC acted as if they did not know the mischief in existing law which the provision was meant to cure. Manipulation of votes takes place mainly at the point of collation. Thus, before the votes are set for collation, Nigerians will have the opportunity to see them and when the final results are being announced, everyone can cross check through the election results portal.

INEC regulations are subsidiary legislation and as such are law strictly so called. INEC deliberately violated binding rules of engagement for organising presidential elections.

The rules were made to fill a gap left by the legislature and there is nothing in the body of the principal legislation which states a procedure for transmission of results contrary to the regulations made by INEC.

Finally, the result of the presidential election has been vitiated by the deliberate mischief of the leadership of INEC. This leadership needs to be prosecuted, to be asked to step aside and prevented from further harm to the national interest.

After being given the latitude to spend hundreds of billions of taxpayers’ money, this fundamental departure from a rule-based procedure to the whims and caprices of the leadership of INEC is not within the contemplation of the letter and spirit of the law.