One contentious issue confronting the National Assembly today is the passing of the bill for electronic transfer of election results. From all indications, the generality of Nigerians want electronic voting and transfer/collation of results and worry that the National Assembly is not fully disposed to that desire of Nigerians to have such a law in place just yet. Both sides have advanced some plausible reasons supporting their positions.

From experience, elections in Nigeria are often trailed by allegations of rigging, many of which have been proved in the election tribunals. A professor was recently convicted for alteration results in Cross River State. Figures have been proved to be altered and result sheets mutilated by election undertakers and their political collaborators and actors, thus making significant outcomes of the nation’s results to be suspect and many a time, returning the wrong candidates as winners.

Apart from the problems of gerrymandering, ballot box snatching, intimidation, thuggery and so on, observers believe that the biggest election fraud is committed at the point of collation of election results. This happens because there is no real time between voting and collation, and election manipulators seize the gaps to perpetrate rigging. The argument has been that the only way to stop such manipulation is to close and possibly eliminate the gap between voting and collation and the only way of doing this seems to be through electronic voting and transfer of results. This makes the proposed electoral act amendment quite fundamental.

The Senate and the House of Reps are yet to agree even though Houses have passed the electronic transfer clause with conditions attached.

The Electoral Act 2010 Amendment Bill, the Senate has passed: Clause 52 (2) “The Commission (INEC) may consider the electronic transmission of results, provided the national coverage is adjudged to be adequate and secure by the National Communications Commission (NCC) and approved by the National Assembly.” While the House of Reps passed: Clause 52 (2) “Voting at election and transmission of results in this Bill shall be in accordance with the procedure determined by the Commission.”

There is a big snag, accounting for great disparity in the versions of amendments passed by the Senate and House of Representatives. As can be seen, the Senate would want the Nigerian Communication Commission, NCC, and itself (the Nigerian Senate), to agree and give the nod before election results could be transmitted by the Independent National Electoral Commission, INEC, while the House of Reps wants election results transmission left to the discretion of INEC. Meanwhile, the Chairman of the Independent National Electoral Commission Professor Mahmood Yakubu keeps reassuring Nigerians that the commission is ready for electronic transmission of election results, having tested the system in some off-season elections in the country already.

The two chambers’ positions must be harmonised, which means that there has to be a conference committee of both Houses to adopt a common position. What normally happens is that the conference committee would just adopt one position, either that of the Senate or that of the House. There is a huge implication for whichever position the conference committee eventually adopts.

If the NASS conference committee adopts the position of the Senate, which would have INEC revert to it and NCC before undertaking electronic transfer of results, it may affect the independence of INEC, which is guaranteed by the constitution and the act establishing it. Please specifically note that an act of parliament, unless where it amends a section of the constitution in contention, cannot stand superior to express provisions of the nation’s constitution, which is grund norm.

If the conference committee, on the other hand, adopts the position of the House of Reps, which leaves determination of electronic transmission to the discretion of INEC, it will come closer to what is needed to cure rigging in Nigerian elections. It will retain the independence and discretionary powers of INEC. However, professional advice by the NCC may still be necessary. In other words, if it is still possible, the conference committee may just add ‘on advice of NCC’ to the version of House of Reps to make it more complete.

The advice is not mandatory but it is actionable and will form bases for ligation where INEC transmits or claims to have transmitted election results where internet is not available. The Commission will have to explain to the Election Tribunals how it performed such magic.

The fact is: Nigeria has not attained 100% internet penetration. But POS services happen almost everywhere in Nigeria. Using POS as an example, electronic transmission of results is very possible in the larger of Nigeria. But what happens to the areas where POS or any form of internet service is unavailable since INEC has no power to disenfranchise any Nigerian voters who are willing to vote? INEC will have to transmit results manually in those places. This is covered by the version of the Bill as passed by the House of Representatives, which permits INEC to use its discretion.

Let INEC on advice of NCC determine where transmission of election results is practicable and do the needful in accordance with the law and good conscience. Nothing should be done to abridge the powers of INEC as an independent commission, as is bound to happen if the version of the bill passed by the Senate is adopted by the conference committee. The version passed by the House of Reps is not uhuru but it, at least, meets the requirements for free, fair and credible elections in Nigeria half way and can serve till the next amendment.

•Dr. Law Mefor is a Senior Fellow of The Abuja School of Social and Political Thought; Tel.: +234- 905 642 4375 E-mail: drlawmefor@gmail.com; follow me on tweeter:@LawMefor1

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