INEC was established by section 153 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Electoral Act, 2010 (as amended 2015). Pursuant to that provision in the said Constitution, (2010), it established INEC and its functions etc. (ELECTORAL ACT, 2010) , Sections one and two . The INEC functions include:
a) functions conferred on it, by the Constitution;
b) to conduct voter and civic education;
c) to promote knowledge of sound democratic election processes;
d) to conduct any referendum required to be conducted, pursuant to the provisions of the 1999 Constitution, or any other law, or Act, of the National Assembly.
Pursuant to its mandate above, INEC has established guidelines for the conduct of General Elections, including that of 2019. The Electoral Act contains details of this.
The Electoral law is undergoing the process of amendments of its provisions, by the 9th National Assembly. Each House of the National Assembly has concluded debates on the amendments and their technical committees have submitted reports to each House at plenary sessions,and each House has voted, to indicate its positions, which have been taken, separately, by each House and these are to be harmonised into a common position of the national Assembly, and thereafter, it will be passed and sent to the president for his ascent , before it becomes an Act.
Looking at the positions taken by the two Houses, there seems to be agreement, on most issues, except the provisions that have to do with the mode of transmission of the results of an election .
Currently, the following are done electronically:
a) compilation and storage of Voters and the Voters Register ;
b) accreditation of Voters ;
c) Electronic voting has now been agreed upon. It is currently manual, although INEC has been experimenting with electronic voting since the past elections.
However, what is at issue, is the mode of transmission of the results of an election. While both Houses agree to electronic transmission, there are however, conditions attached. The Senate has taken the position that before INEC can transmit the results electronically, it has to consult the Nigeria Communications Commission ( NCC), who will have to approve, or disapprove, of it, based on its infrastructure on the ground, for the whole country. Even when this is done, a second step is to be taken, and it is for INEC to refer it to the National Assembly for approval, as well.
The above referrals are the contentious issues, with regards to transmitting the results electronically. It is this position that has drawn opprobrium and opposition by the generality of the Nigerian pubic. The position of the Senate is seen as Suspicious, as manual transmission is known to have always generated a lot of the problems with regards to acceptability of the results. Underlying the argument for electronics transmission,instead of the manual mode, by its protagonists,it is a fact that, in our democratic experience, each vote must count.
We may have not seen the last of it yet, as a committee of the two Houses is yet to be constituted to harmonise the various positions. But electronic transmission is the popular position by most Nigerians. Even when the National Assembly refuses to listen to the popular will of the people, all hope will not be lost, as the President would have to ascent, or refuse to ascent, to it.
Certain issues stand out in the current debate. There are those who argue that the referral to both NCC and the National Assembly on the issue of the electronic transmission of results of elections would impair and limit the freedom and independence of INEC. So, there is strong argument on maintaining the independence, as provided, by both the Constitution, the Electoral Act and other laws with regards to INEC.
As its name implies, it says INEC is Independent. Literarily speaking, it means, it is not dependent; it is a state, or quality of, being independent. It is exemption from relying on, or control by others. It also means self-sustainance; direction of ones own affairs, without interferences.
But the above definition of independence of INEC is only idealistic; it aims to be achieved, but practically, it is not true, to reality.
The notion of freedom, or independence, is punctured by reality, as it is not attainable because, as we mentioned earlier, INEC was established by law. The law has delineated its boundaries and it cannot go beyond what has been assigned to it.
Secondly, INEC does not appoint its members by itself . It is done by the President, on the approval of the National Assembly and such appointments are tenured; they are not permanent. It will be interesting to see what kind of members are appointed and whether, or not, they maintain allegiance to their appointors. Therefore, how free will the appointees be?
Thirdly, we may ask, how electoral is the INEC? By electoral we mean one or two things:
a) of, or relating to elections;
b) composed of electors.
We know, from the law establishing the Commission and delineating its functions, there are other issues, or bodies, it dealt with, which are incidental to its main function of conducting elections. There is the other variant of elections known as “referendum” . Such referenda are subject to laws that may be enacted by the National Assembly and other administrative laws and procedures. Therefore, there are incidental fall-outs to its main function of organizing elections. We can then see that INEC is not as free as the impression it carries.
In another way, we would like to argue, that the independence, implied in its name, refers only, to its freedom, or its independence, in conducting its mandate; that it shall not be dependent, or rely on, or controlled by others, and it shall be self-sustaining and not would not be under the direction of others, in the discharge of its affairs, as provided for by the law.
Here again, although, it may be so in the conduct of its day to day affairs, as laid down by the law, this ignores the human element. Whoever is in INEC is a product of the larger Society he belongs to and since they do not live in the moon, they were bound to be affected through human interactions, by societal expectations, emotions and sentiments. These impair the idealistic expectations of the independence of the INEC.
However, what is important, is that it should be seen to be either, covertly, or overtly, in the control of interests, other than the law establishing it.
Another issue to be borne in mind, is the fact that the process of amendment is still ongoing. It would seem most people have not adverted their minds to the final outcome of the exercise. In spite of the opposition to the stand of the Senate, which has made electronic transmission of the results of the election, conditional to the approval, by both itself and the NCC, should the bill be passed, as it is, into law, the amended sections would become part of the new law, and INEC would be bound to obey and implement it. Should this happen, the requirement of referral to the two bodies will become part of the law and it will be hard to believe that INEC would no longer be independent,merely because it is required to refer to the two bodies, since in its present state, it operates under laws and it is seen as independent.
Joshua D Ephraim writes from Abuja