Could This Be A Conflict?: Section 62(1) & (2),Electoral Act, 2022 And Clause 38 Of The Regulations And Guidelines For The Conduct Of Elections, 2022
By Amauche Onyedum
“My issue with the two men is simply this: if the tortoise says it hides nothing in its shell, he should come out and allow me to search the shell.” Culled from: Mission of the Dusk, by Hon. Justice Inyang E. Ekwo
A lot has been said about the mode and procedure for transmission of election results from the polling units. The various viewpoints of legal and non-legal minds, border on whether it is mandatory to transmit election materials manually and/or electronically, from the polling units. Despite these brilliant submissions, the situation remains inconclusive and as bare as a blanket of water wrapped round a glowing skin.
It is for this reason that this article was conceived. This article will enable us to search the shell of this tortoise (the Electoral Act, 2022 with the INEC Regulations and Guidelines for the conduct of elections, 2022), because there seems to be a conflict hidden therein.
The concomitant reading of the now popular Sections 50(2), 60(4 & 5), 62(1 & 2), and 64(4b) of the Electoral Act, 2022 and the Clause 38 of the INEC Regulations and Guidelines for the conduct of elections, 2022, which have been trending uniformly exposed the possible conflict in Sections 62(1 and 2) of the Electoral Act, 2022, and Clause 38 Of The Regulations and Guidelines For The Conduct Of Elections, 2022.
POSSIBLE MANUAL TRANSMISSION OF ELECTION MATERIALS
Section 60(5) of the Electoral Act, 2022, states 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.
Thereafter, Section 62(1) of the Electoral Act, 2022, prescribes a mode, thus: “After the recording and announcement of the result, the presiding officer shall deliver same along with election materials under security and accompanied by the candidates or their polling agents, where available, to such person as may be prescribed by the Commission.”
This is not all, Section 39 of the INEC Regulations and Guidelines for the Conduct of Elections, 2022, portrays what looks like a manual transmission, where it holds thus: “The Presiding Officer shall keep the originals of EC8A and their top copies (Electoral Operations’ copies) for the Commission. It is mandatory for designated Election Duty Staff to collect and deposit all Electoral Operations copies of results with their Supervisors within the prescribed time. Non-compliance shall be treated as dereliction of duty.”
These pictographically depict physical delivery of the election materials, which delivery shall be witnessed (accompanied) by the candidates or their polling agents to such person as may be prescribed by the INEC (Election Duty Staff). This process in my view, reflects a manual transmission of election materials.
THE BIRTH OF THE INEC REGULATIONS AND GUIDELINES FOR THE CONDUCT OF ELECTIONS, 2022
The query that comes to mind is: what brought about the popularity of the INEC Regulations and Guidelines for the Conduct of Elections, 2022? The answer to this is embedded in Section 148 of the Electoral Act, 2022, which holds thus: “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. This totally adorns the Electoral Act, 2022, with the content of the Electoral guidelines.
POSSIBLE ELECTRONIC TRANSMISSION OF ELECTION MATERIALS
With this nexus existing between the Electoral Act, 2022, and INEC Regulations and Guidelines for the Conduct of Elections, 2022, it is safe to swim in the ocean of the INEC Regulations and Guidelines for the Conduct of Elections, 2022, which made provision for the mode of transmission of election results in Clause 38, where it held thus: Upon completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:
(i) Electronically transmit or transfer the result of the Polling Unit, ɗirect to the collation system as prescribed by the Commission.
(ii) Use BVAS to upload a scanned of the EC8A to INEC Result Viewing Portal (IReV), as prescribed by the Commission.
(iii)Take the BVAS and the original copy of each of the forms in tamper evident envelope to the Registration Area/Ward Collation Officer, in the company of Security Agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Centre.
It therefore goes without saying that Clause 38 is succinct on the mandatory nature of transmission of the electoral materials by the presiding officer.
COULD THIS BE A CONFLICT?
Being unbiased and bearing in mind as culled from, Mission of the Dusk, authored by Hon. Justice Inyang E. Ekwo, that the snake that makes it a point of duty to eat the eggs laid by the hen should not forget that it lays eggs too, would you say, that there is a conflict in these sultry provisions in Section 62(1 &2) of the Electoral Act and Clause 38 of the INEC Regulations and Guidelines for the Conduct of Elections, 2022?
If your answer is in the affirmative, then the zebra-crossing prints of our law reports beckons on you to determine which of them will take precedence.
If your answer is in the negative, then bask more in the aura of both provisions, yet with some strides to the zebra-crossing prints of our law reports.