You are on page 1of 19

THE IMPACT OF TECHNOLOGY IN THE 2015 GENERAL ELECTION IN NIGERIA:

A CASE FOR THE REVIEW OF RELEVANT ELECTORAL LAWS

Amana Mohammed Yusuf

ABSTRACT

The 2015 general election opened a new page in the electoral processes in Nigeria. It witnessed
the introduction of several innovations, particularly, the use of card readers in the accreditation
of voters and the use of other electronic devices in the process of collation and transmission of
election results. The use of these technological devices recorded both positive and negative
impacts. One issue however that arose post election is the legal challenge to the use of these
devices in view of the existing relevant laws governing electoral processes in Nigeria at various
stages in post election litigations, leading to different reasoning and decisions on the legality or
otherwise of the use of the devices by the courts. This article finds that, the Supreme Court of
Nigeria rather than using the Mischief rule, adopted the literal rule of interpretation in coming to
the conclusion of the legality or otherwise of the use of technology in the electoral processes in
Nigeria. This article concludes that, the use of technology will impact greatly on the electoral
processes in Nigeria. This article therefore recommends an urgent review of the relevant
electoral laws in Nigeria before the next general election, with a view to incorporating the use of
technological devices in the electoral processes in Nigeria.

1.0 Introduction

The 2015 general election in Nigeria witnessed a new dawn in the electoral processes. One of the
positive impacts of the election and all through the electoral processes was the deployment and
use of technology. The introduction and use of technology was mainly to address some of the
negative characteristics and consequences that are associated with election and electoral
processes in the past in Nigeria, which includes but not limited to: multiple registration of voters,
under age registration of voters, general fraud and intimidation before, during and after the


Amana Mohammed Yusuf, LL.B., BL., LL.M., is a Lecturer in the Department of International Law & Jurisprudence,
Faculty of Law, Bayero University Kano. 08033340192, amankg77@gmail.com. This is an improved version of the
th
paper, presented at the Department of Public Law, Bayero University Kano Seminar Series, held on the 5 of April,
2016. I am grateful to the HOD of the Department of Public Law, Dr. Mohammad Isah, Dr. Mamman Lawan
Yusufari, the Dean of Law, Dr. Musa Usman Abubakar, the Sub-Dean of Law and Dr. Yakubu Baba Hassan, for their
constructive criticism and observation, which I noted and have incorporated in this final work. I am also grateful to
nd
the organizers of the 2 International Conference on Social Science and Law, held at the Nigerian Turkish Nile
University, Abuja, 11-12 May, 2016 for accepting the abstract and scheduling the paper for presentation but which
was not possible due to circumstances beyond my immediate control then.
electoral processes and the election by the electoral officials, the agents of the political parties
and the electorate, political assassination, killing of electoral officials and the electorates, vote
buying, vote rigging, ballot box stuffing and ballot box snatching, falsification and alteration of
election results by the electoral officials and agents of political parties etc. Be that as it may, the
introduction and use of technology in the 2015 election and electoral processes recorded both
positive and negative impacts. Notwithstanding however, the legality of the introduction and use
of technology in the 2015 election and the electoral process was a subject of debate before,
during and after the election. Thereby leading to several post election litigation on the legality of
the deployment and use of technology, particularly card readers in the election and electoral
process and the subsequent interpretations of the electoral laws on the matter leading to various
interpretations by the courts and more specifically the Supreme Court pronouncement on the
subject. It is against this background that this paper seeks to examine the following: (1) the
electoral processes in Nigeria (2) the characteristics of the electoral processes before 2015 (3) the
introduction and use of technology in the 2015 electoral process in Nigeria (particularly, card
reader machine) (4) highlight the impacts of the introduction and use of technology in the 2015
electoral processes in Nigeria (5) the Nigeria Electoral Laws and the deployment and use of
technology in the electoral process in Nigeria (6) examine the attitudes of the Nigeria courts on
the deployment and use of technology in the 2015 election (7) make conclusion and recommends
on the way forward.

2.0 The electoral process in Nigeria

Electoral process also known as ‘election process’ has to do with the entire cycle of an election,
which covers different phases: delimitation of electoral boundaries, registration of voters, notice
of election, nomination of candidates, election campaigns, election, collation and announcement
of election results, pre and post election litigations and the judgment of the courts resolving the
election dispute at the trial and appeal courts.1

1
Idike, A. N. A., (2014) ‘Democracy and the Electoral Process in Nigeria: Problems and Prospects of E-voting
Option, Asian Journal of Humanities and Social Sciences, (AJHSS) Vol.2 Issue 2, May, @www.ajhss.org, p135
accessed 3 March, 2016
Electoral processes therefore consist of complex processes, with each of the process leading to
the other.2 Although various technologies3 are being deployed and used in each phase of the
electoral process, this paper is more concerned with the use of technology at the stage of
election,4 as it appears there is general acceptability of the use of technology at the other stages
of the electoral process.

Further on the electoral process, Iwu,5stated that between 2002 to 2007, electoral process in
Nigeria were largely seen as human oriented and human-based activities, even though, the period
witnessed the acquisition of information and communication technology by the Independent
National Electoral Commission (INEC) foe its operations. He stated further that one vital
component of the technological innovation in the electoral process was the introduction of bio-
metric based voter registration.

3.0 The characteristics of the electoral processes before 2015

In terms of general conducts, Adike,6 observed that electoral process in Nigeria is characterized
by massive fraud, intimidation and even assassination of political opponents, killing of people
around the time of election, vote buying, vote rigging and outright violence etc.

While, Shariff and Adamu,7 observed that past elections in Nigeria had witnessed the desperate
bid for political power by some stakeholders with vested interests in the Nigeria electoral
process. Some of these stakeholders engage in all forms of electoral malpractices including
multiple voting, impersonation, manipulation and falsification of results which had led to legal
actions, electoral conflicts and violence.

2
ibid
3
Computers, scanners, printers, photocopiers, internet facilities, bio-metrics data capturing machines, card
readers etc,
4
Particularly card readers used at the stage of accreditation of voters for the elections in the 2015 General
Election.
5
Iwu, M. M., (2008), ‘Electronic Voting and the Future of the Electoral System in Nigeria’, the Nigeria Electoral
Journal, 2 (1), 1-29, cited in Adike, A. N. A., note 1, pp.137-138
6
Note 1, p.133, see also Chikodiri, N., (2015) Biometric Voting Technology and the 2015 Elections in Nigeria, a
Paper Presented at a Two Day National Conference on ‘The 2015 General Election in Nigeria: the Real Issue’,
organized by the Electoral Institute, 27-28 July, pp. 2, 7-11
7
Shariif, G. B., and Adamu, A. M., (2015), ‘The Successes of the Card Reading Machine in Nigeria’s 2015 General
Election: Issues and Challenges’, International Journal of Multidisciplinary Research and Modern Education
(IJMRME), Vol.1, Issue II @ www.rdmodernresearch.org, p.127 accessed 3 March, 2016
Sabo, Siti and Rozita8observed that inadequate transparent mechanism is the problems of
existing voting system in Nigeria in which electoral officials enjoy overdo privilege to manually,
collate, count, announce elections results. Hence, the method is prone to danger of human error
and deliberate manipulations. The susceptibility nature of the method allows electoral officials
with corrupt motives and their accomplice to easily rig election at every stage of the process
unnoticed. Furthermore, the system allow for multiple voting by non eligible persons; and
intimidation of voters by scaring them way from casting vote or forcing them to vote candidate
against their wishes.

Also, Kehinde,9 while arguing for the imperative of electoral reform observed that, electoral
processes in Nigeria amongst others is characterized by political violence (particularly, political
assassination), unbridle desperation by politician to ensure sweeping winner-takes-all Victories,
thus, leading to: the manipulation of the electoral process, brazen falsification of election results,
intimidation of voters, electoral official and observers, underage voting, hoarding of ballot boxes
and ballot papers, announcing of election results where there was no voting, diversion of ballot
boxes, ballot papers and result sheets, multiple voting across different polling units etc. These
circumstances inspired for exploration of robust election method through innovative
technology.10

4.0 The introduction and use of technology in the 2015 electoral processes in Nigeria

The 2015 general election witnessed the deployment and use of technology in the electoral
process, particularly, electronic voters registration through the use of bio-metric data capturing
machines, leading to the issuance of permanent voters card (PVC) and the introduction of card
reading machines used for the accreditation of voters before casting of votes at the election, all of

8
Sabo, M., Siti, A. J. A., and Rozita, A., (2015) Issues and Challenges of Transition to E-voting Technology in
Nigeria,Public Policy and Administration Research, Vol.5, No.4 p.96
9
Kehinde, B., (2015) Toward Institutionalizing Credible Elections in Nigeria: A Review of Reform Measures by the
Independent National Electoral Commission, Improving Electoral Practice: Case Studies and Practical Practical
Approaches, International Institute for Democracy and Electoral Assistance, pp.58-63
10
See also Omalaye, P. O., Pius, D., and Orifa, A. O., (2015) Systemic Evaluation of Semi-Electronic Voting System
Adopted in the Nigeria 2015 General Elections, American Journal of Information system, Science Education
Publishing, Vol. 3, No.1 p.15
which were believed to be sure way to achieving transparency in the electoral process and the
election.11

Card reading machine is a device which is specially designed for the electronic authentication of
voters on the polling day.12 According to Shariff and Adamu,13A card reader is a device that read
the content of the encrypted voters bio-data and biometrics details with the associated private key
and the availability of a matching voter ID to the smart card, which run alive, matching the voter
information on the database with the version of each voters bio-data and biometrics it house.14

Though as stated by Iwu,15the deployment of technology is not much a recent phenomenon as


bio-metric based voter registration has been adopted in the past for the registration of voters.
However, the adoption of technology as a follow up process in actual electoral processes is a
recent innovation in the 2015 general election. The deployment particularly of the card reader
machine which is one such follow up process in the conduct of the 2015 general elections,
though have generated controversies, has impacted greatly in the election process.

According to the supreme court in the case of Nyesom v. Peterside & Ors16smart card reader
machine is a technological device set up to authenticate and verify, on election day, a permanent
voter’s card (PVC) issued by INEC. Smart card machine is designed to read information
contained in the embedded chip of the permanent voter’s card (PVC) issued by INEC to verify
the authenticity of the PVC and also carry out a verification of the intending voter by matching
the biometrics contained from the voter on the spot with the ones stored on the PVC.

In terms of its operations, the device uses a cryptographic technology with ultra-low power
consumption and one core frequency of 1.2 GHz and an Android 4.2.2. The device is position by
its operator (usually a trained INEC official) to reads the embedded chip on the PVC, this

11
Ahmed, A, M., and Usman, M., (2015) ‘The Impact of Technology on Nigeria’s Democratic Development: A
Analysis of the Card Reading Machine, International Journal of Multidisciplinary Research and Modern Education
(IJMRME), Vol.1, Issue II @ www.rdmodernresearch.org, pp.116-117 accessed 3 March, 2016
12
See Manual for Election Officials 2015 (updated version) @ www.inecnigeria.org/up-
content/.../2015/02/Election-Manual-2015-.pdf p. 35, accessed 3 March, 2016
13
Note 7, p.126
14
See also Omalaye,et al note 8, pp.17-18, see also Chikodiri, N., (2015) Biometric Voting Technology and the 2015
Elections in Nigeria, a Paper Presented at a Two Day National Conference on ‘The 2015 General Election in Nigeria:
the Real Issue’, organized by the Electoral Institute, 27-28 July, p.4
15
Op. Cit, note 10
16
(2016) 7 NWLR Pt. 1512, p. 452 at 540 paragraphs D-H
procedure display the information of the voter, followed by fingerprinting. It usually takes about
10 to 20 seconds to validate a voter. On completion of accreditation process, a close V key is
used to close the accreditation process and the total number of voters accredited can be
previewed using a query key beside the close V key and thereafter, the result may be forwarded
to INEC using the Communication key. The card reader was first used for the Nigeria's
presidential election that was held on March 28, 2015.17

5.0 The impacts of the deployment and use of technology in the 2015 electoral processes in
Nigeria

Several writers18have identified and highlighted some of the followings as the negative and
positive impacts of the deployment and use of technology in the 2015 general elections.

5.1 Negative Impacts


i. Undue delay in the electoral process: particularly, the card reader machines
deployed for the election, malfunctioned in several polling units, a situation that
resulted in undue delay in the accreditation process. There were also the challenges
of rejection of PVC by the card reader, as well as the inability to capture and or
irregular capturing of finger tips. And also fast battery drainage. Poor and improper
handling of the devices resulting from inadequate training of ad hoc and INEC staff
on the handling of some of the technological devices used in the elections was also
another factor.

17
Wikipedia, the free encyclopedia, accessed on the 5 March, 2016
18
Ahmed, A, M., and Usman, M., (2015) ‘The Impact of Technology on Nigeria’s Democratic Development: A
Analysis of the Card Reading Machine, International Journal of Multidisciplinary Research and Modern Education
(IJMhRME), Vol.1, Issue II @ www.rdmodernresearch.org, pp.116-117 accessed 3 March, 2016; Shariif, G. B., and
Adamu, A. M., (2015), ‘The Successes of the Card Reading Machine in Nigeria’s 2015 General Election: Issues and
Challenges’, International Journal of Multidisciplinary Research and Modern Education (IJMRME), Vol.1, Issue II @
www.rdmodernresearch.org, p.127 accessed 3 March, 2016; Amenaghawon, J., (2015), 2015 Nigeria Elections: the
th
Gains, the Challenges and the Lessons, @http://blogs.premiumtimesng.com/?/p=167419, accessed 5 March 2016;
Okoro, E., (2015), Card Reader: Clash of Technology and Politics@http://dailyindependentnig.com/2015/03/card-
th
reader-clash-technology-politics, accessed 5 March 2016; Onapajo, G., (2014), the Dilemma of Card Reader in
2015 General Elections, Journal of Multidisciplinary Research and Development, Vol.1 Issue 2, p.22; Chikodiri, N.,
(2015) Biometric Voting Technology and the 2015 Elections in Nigeria, a Paper Presented at a Two Day National
Conference on ‘The 2015 General Election in Nigeria: the Real Issue’, organized by the Electoral Institute, 27-28
July, pp. 2, 7-11
ii. Low turnout of voters: There were cases of significant low turnout of voters in
some polling units resulting from the poor human relations and uncooperative
attitudes between some illiterate electorate and election officials. This was the direct
consequence of inadequate information and sensitization of the voters on the
introduction and use of some technological devices for the elections.
5.2 Positive Impacts
i. Reduction of election rigging and snatching of ballot boxes from polling units
ii. Enhanced speedy and accurate accreditation of voters
iii. Reduced the electoral fraud of multiple registrations and multiple voting. With PVC,
which is the direct result of biometric voters’ registration, the true identity of the card
holder were matched with the details contained in the PVC during the accreditation
process.
iv. Provided accurate records of accredited voters who were the same people that were
allowed to vote.
v. Distinguish actual voters from fake voters which helped in ensuring security of
persons and property at the polling station.
vi. Ensured a considerable degree of free and fair election.
vii. Ensured a considerable degree of credibility, transparency, acceptability of voting
and the election outcome.
viii. Minimized the volume of election litigation that normally follows the conclusion of
elections.
ix. Reduced electoral conflict and violence to the bearest minimum.
x. Ensured audit of the election result from polling units across the Federation to the
collation centers.

These positive impact was also acknowledge by the Supreme Court when it held in the case of
Nyesom v. Peterside & Ors,19thus:

….INEC is to be commended for the innovation of the card reader machine to bolster the
transparency and accuracy of the accreditation process and to maintain the democratic
norm of “one man one vote” by preventing multi-voting by a voter.

19
(2016) 7 NWLR Pt. 1512, p. 452 at 525 paragraph A
6.0 Nigeria Electoral Laws and deployment and use of technology in the 2015 electoral
processes in Nigeria

Electoral process in Nigeria is basically regulated by two laws: the 1999 Constitution of the Federal
Republic of Nigeria (as amended) and the Electoral 2010 (as amended). The justification for or against
the legality or otherwise of the deployment and use of technology, particularly card reader machine in the
2015 electoral process in Nigeria are based on their understanding and interpretation of these laws.

6.1 The Constitution of the Federal Republic of Nigeria 1999 (as amended)

The 1999 Constitution of the Federal Republic of Nigeria (as amended) is has several provisions in
relation to the electoral processes in Nigeria. Some of these provisions are sections: 77 and 117, 78 and
118, 153, 160 and paragraph 15 of the third schedule to the Constitution.

Sections 77 and 117, particularly sub paragraph 2, deals with the eligible age for participation in election
in Nigeria. The section guarantees to every citizen of Nigerian, who has attained the age of eighteen years
residing in Nigeria at the time of the registration of voters for the purpose of election to legislative houses
the right or entitlement to be registered as a voter for that election.

Sections 78 and 118 are the enabling provisions which vest on Independent National Electoral
Commission (INEC) the powers to register voters and conduct elections in Nigeria. It provides in effect
that the registration of voters and the conduct of election shall be subject to the discretion and supervision
of the Independent national Electoral Commission (the underlined is for emphasis).

Section 153 establishes INEC as an institution of the Federal government of Nigeria, while Section 160
empowers INEC to make regulations. The section is to the effect that INEC may with the approval of the
president by rules or otherwise regulate its own procedure…for the purpose of discharging its functions
(the underlined is for emphasis).

Paragraph 15 third schedule, particularly item (e) and (i) confers on INEC the powers to arrange and
conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters
for the purpose of any election under the constitution. And also to carry out such other functions as may
be conferred upon it by an Act of the national Assembly.

The processes leading to the conduct of the 2015 general elections were done in furtherance of the above
provisions and it is one such process, the deployment of card reader machine in the electoral process that
was the subject of contention.
6.2 The Electoral Act 2010 (as amended)

The Electoral Act 2010 (as amended) in more detailed terms provides for the electoral processes in
Nigeria. Particularly, the processes for the registration of voters, the conduct of elections and powers to
make regulation and guidelines are provided for under sections 16, 49, 52 and 153.

Section 16 empowers INEC to print and issue voters card. The section also stipulates that no voter shall
hold more than one valid voters card. The processes of printing and issuance of voters’ cards by INEC, is
preceded by bio-metric based voter registration, a process which is substantially technologically
determined. Consequently, bio-metric data of eligible voters are captured in mechanical devices
and saved, leading to the issuance of permanent voters card (PVC).

Section 49, particularly sub (1) and (2), deals with the process of the conduct of election in Nigeria. It
stipulate that voting shall be by the presentation of voters card by the person seeking to vote to the
presiding officer at the polling unit in the constituency in which his name is registered and the presiding
officer shall upon being satisfied issue him with a ballot paper and indicate on the register that he has
voted.

Section 52 (1), deals with the manner of voting. It is to the effect that voting at an election shall be by
open secret ballot and sub section (2) of the section provides that the use of electronic voting is
prohibited.

Section 153 empowers the Commission to issue regulations and guidelines amongst others. It stipulates
that the commission may, subject to the provision of the Act, issue regulations, guidelines or manual for
the purpose of giving effect to the provision of the Act and for its administration thereof.

It is necessary to add that INEC pursuant to the power conferred on it by section 160 of the 1999
Constitution of the Federal Republic of Nigeria (as amended) and section 153 of the Electoral Act 2010
(as amended) issued Guidelines and Regulations for the conduct of 2015 general election20 and Manual
for Election Officials 2015 (updated version).21

20 th
Available @www.inecnigeria.org/up-content/.../2015/.../Final-Approved-2015-Election-Guidelies... accessed 10
March 2016
21
Available@ www.inecnigeria.org/up-content/.../2015/02/Election-Manual-2015.pdf accessed 10th March 2016
The Approved Guidelines and Regulations for the 2015 general election essentially provides for: the
mandate of the Commission to conduct elections,22 persons entitled to vote,23 method of voting,24
accreditation and voting procedure at the election,25 and collation of election results26etc.

The Manual for Election Officials 2015 (updated version) is an elaborate document but essentially
Chapter 2, section A, B and C deals with issues of accreditation, card reader and voting, while Chapter 3,
section B-E deals with Collation of results.

Interestingly, the arguments on the legality or otherwise of the use of technology in the electoral process
in Nigeria, is only at the stage of election proper. This is an indication that the deployment and use of
technology in the registration of voters is not in dispute.

Those who argued against the deployment and use of technology, particularly card reader, at the stage of
election maintained that it is illegal.27 According to them, section 52 of the Electoral Act expressly
prohibits the use of electronic voting machines and that reference to card reader was only made to in the
Electoral Manual, which they argued has no force of law.28 And that since a statutory provision (the
Electoral Act) has set out the methods of conducting election in Nigeria; no other method will be
accepted.29

While those who argued in favour of the deployment and use of technology in the Nigeria electoral
process insist that the deployment and use of card reader particularly in the 2015 general election is not
illegal. They argued that what section 52 of the Electoral Act, 2010 (as amended) proscribed is electronic
voting and not accreditation by electronic means.30 They further argued that electronic voting machine
and card reader are two different devices that are not necessarily deployed together for all purpose. Card
reader they stated is not a voting machine but a machine to be used for accreditation before the actual

22
Paragraph 1
23
Paragraph 2
24
Paragraph 4
25
Paragraphs 7-31
26
Paragraphs 32-52
27
Peter, S. C., (2015), Opinion: Illegality or otherwise of Card readers in Nigeria Electoral
Jurisprudence@http://thewillnigeria.com/news/opinion-illegality-or-otherwise-of-card-readers-in-nigeria-
electoral-jrusprudence, cited in Shariff and Adamu, note 6, pp. 130-131
28
ibid
29
ibid
30
Oderemi, K., (2015), Card Reader: To be or not to be? @
http://www.latestnigerianews.com/news/1261223/card-reader-of-controversy.html. cited in Sariff and Adamu,
note 6, pp. 129-130; Banire, M., (2015), Card Reader and the Electoral Act, Any Conflict? @
http://thenationonlineng.net/news/card-reader-and-the-electoral-act-any-conflict cited in Shariff and Adamu note
6, p.130
voting, which in the case of the 2015 general election was paper based.31 According to them therefore,
accreditation is not the same thing a voting, because a person may present himself for accreditation
without presenting himself for voting. The difference between accreditation and voting is underscored by
the provisions of section 49 (1) and (2) of the Electoral Act, 2010 (as amended).32

7.0 The attitudes of the Nigeria courts on the deployment and use of technology (card
reader) in the 2015 election.

Before proceeding with the discussion on the attitudes of the Nigerian Courts on the deployment
and use of card reader machine in the 2015 general elections, I hasten to observe that, in view of
the electoral processes in Nigeria and its attending characteristics stated above, the issue of the
deployment and use of the card reader machine to my mind is a political one requiring legislative
intervention, through the legislative mechanism of the amendment of the relevant provisions of
the 1999 Constitution and the Electoral Act. It is the failure of this intervention that led to the pre
and post election controversy on the legality or otherwise of the deployment and use of the card
reader machine in the 2015 elections process. Hence, the necessity for judicial intervention post
the elections for interpretation on its legality or otherwise. Whether the interpretation by the
courts on the use of card reader machine has taken us back to where we were before the 2015
elections or has advance on the position will form the bulk of the subsequent discussion.

Without prejudice, it was widely acknowledge that the introduction of card reader machine in the
2015 electoral process in Nigeria greatly shaped and impacted on post election litigation. This
was because the outcome of the election was widely accepted leading to fewer litigations.

Some of the few cases that went to court and in respect of which the courts were called upon to
make pronouncement on the status of the card reader machine used in the 2015 general elections
are: Nyesom v. Peterside& Ors33, INEC v Peterside,34 PDP vs Peterside,35All Progressives

31
ibid
32
See also the provisions of the Electoral guideline and Regulations 2015 and the Electoral Manual 2015, supra
notes 17-20
33
(2016) 7 NWLR Pt. 1512, p. 452
34
(2016) 7 NWLR Pt. 1512, p.555
35
(2016) 7 NWLR Pt. 1512 p. 574
Congress vs Agbaje & Ors,36 Okereke v Umani & 2 Ors,37 Emmanuel v Umana,38 Ikpeazu v
Otti,39 PDP vs Otti40 and Shinkafi & Anor v Yari & 2 Ors.41
It is worthy of note that in the cases above, one of the main issue for the determination which ran
through all the hierarchy of courts; the Election Petition Tribunal to the Supreme Court, was the
reconciliation of the total vote cast at the election with the total votes declared. The issue called
for a reconciliation of the status of card reader machine against the manual voters register in the
election process in Nigeria, in the determination of the person with the highest number votes.
Also of note is fact that, before the supreme court final decisions/judgment on the status of the
card reader machine against the manual voters register, the decisions from the lower courts
presented conflicting views on the legality or otherwise on the adoption of technology,
particularly the use of biometric data capturing machine/card reader in the 2015 elections. This
put to issue the interpretative methodology adopted by the courts in the interpretation of the
relevant provisions of the law to wit: literal or mischief rules of interpretation. Though the
decisions of the Supreme Court is the subject of analysis here, where necessary, reference shall
be made to any sound pronouncements of the lower court, to the drive home the point on
interpretative methodology.
In the determination of most of the cases above, the Supreme Court construed some of the
following provisions of the Electoral Act 2010 (as amended); sections 49 (1) & (2), 52 (1)(b)
and 153 as it relates to the status and use of card reader machine in the 2015 election, wherein it
held thus:.
7.1 On the power of INEC to authenticate identity of voter
The Supreme Court in Nyesom v. Peterside& Ors,42held that section 57 of the Electoral Act
provides the Independent National Electoral Commission (INEC) with authority to authenticate
the identity of a voter when he presents himself to cast his vote.
7.2 On the prohibition of use of electronic voting machine in election

36
(2015) CAR 23
37
(SC.1004/2015) Delivered on 5th February, 2015
38
(SC 1/2016 & SC 2/2016)
39
(2016) 8 NWLR Pt. 1513, p.38
40
(2016) 8 NWLR Pt. 1513, p.111
41
(2016) 7 NWLR Pt. 1511, p.340
42
Note 32 at p.530 paragraph B
The supreme court in Nyesom v. Peterside& Ors,43 held that section 52 (1)(b) of the Electoral Act
prohibits the use of electronic voting machine for the time being. The smart card reader machines
are used, meanwhile for accreditation of voters and not for voting.
7.3 On function and purpose of card reader
The Supreme Court also in Nyesom v. Peterside& Ors,44 held that the function of the smart card
reader machines in elections conducted by the Independent National Electoral Commission is
solely to authenticate the owner of a voter’s card and to prevent multiple voting by a voter and it
cannot replace the voters register or statement of results in the appropriate forms. Similar view
was held by the Supreme Court in Shinkafi v Yari45Ikpeazu v Otti46
7.4 On whether use of smart card reader machines a breach of Electoral Act, 2010 (as
amended)
The supreme court in Nyesom v. Peterside & Ors,47 further held that, though the failure to follow
the manual and guidelines made by the Independent National Electoral Commission in exercise of
its powers under the Electoral Act did not, in and of itself render the election void in this case,
INEC’s introduction of smart card reader machines in the conduct of the election is not in conflict
with the relevant section of the Electoral Act.
7.5 On whether use of voters’ register for manual accreditation of voters is superseded by
use of smart card reader machine
The supreme court in Nyesom v. Peterside & Ors,48held that the use of smart card reader machine
bolsters the transparency and accuracy of accreditation process during an election. Nevertheless,
section 49 (1) and (2) of the Electoral Act which provide for manual accreditation of voters by
reference to the voters’ register is extant and remain a vital part of Nigeria law. In this case, the
tribunal and the court of Appeal were unduly swayed by INEC’s Directive on the use of the smart
card reader machine in the accreditation of voters. But INEC’s directive, guidelines and manuals
cannot supersede the provisions of the Electoral Act so as to eliminate manual accreditation of
voters. Similar view was held by the Supreme Court in the case of INEC v Peterside.49

43
Supra pp. 529-530 paragraphs H-A
44
At p. 522 paragraphs B-C
45
(2016) 7 NWLR Pt. 1511 p. 340
46
(2016) 8 NWLR Pt. 1513 p. 38 at 82 paragraph D-F, p. 83 paragraph A-D
47
At p. 530 paragraphs B-C, p. 547 paragraphs B-C
48
At pp. 525-526 paragraphs A-A, p. 526 paragraph E-F
49
(2016) 7 NWLR Pt. 1512, p.555 at p. 571 paragraph D-F, p. 572 paragraph G-H
7.6 On interpretation of clear and unambiguous words in statute
The supreme court in Nyesom v. Peterside & Ors,50finally held that the golden rule of
interpretation of statutes is that where the words used in a statute are clear and unambiguous they
must be given their natural and ordinary meaning unless to do so would lead to absurdity or
inconsistency with the rest of the statute. In the case, the provisions of section 153 of the Electoral
Act are clear and unambiguous.
It is the argument of this paper that though the decision of the Supreme Court in the above cases
has put the issue of the legality or otherwise of the use of technology, particularly card reader
machine to rest, the decision has greatly move us backward from the advancement (positive
impacts) experienced with the introduction of technology in our electoral process.
It is further the argument of this paper that the Supreme Court missed the opportunity of
exercising its power of judicial law making through the instrument of judicial activism. This it
would have done successfully using the instrumentality of mischief rule of interpretation, in view
of the characteristics of the election processes in Nigeria.
The decisions of the Supreme Court with respect on the status of the card reader machine is self
contradictory, if put in perspective in relation to the peculiarity and characteristics of the
electoral processes in Nigeria, especially as it concerns the issues of the manipulation of the
electoral process, brazen falsification of election results, intimidation of voters, electoral official
and observers, underage voting, hoarding of ballot boxes and ballot papers, announcing of
election results where there was no voting, diversion of ballot boxes, ballot papers and result
sheets, multiple voting across different polling units, all of which the innovative technology of
the deployment and use of card readers machine were meant to address.
The Supreme Court rightly held that the deployment and use of the card reader machine is legal
and does not in any way breach the provision of the Electoral Act. 51It also rightly acknowledge
and guarantee its use for authentication of voter as its use will bolsters the transparency and
accuracy of accreditation process during an election. The Supreme Court however missed the
point when it refused to accord the card reader machine a rightful place as one of the determining
factor in the process of computation of result to ensure that the total votes correspond with the

50
At p. 527 paragraphs F-H
51
Note 47
number of the electronically captured authenticated and accredited voters. This would have
helped greatly in addressing the issue of over-voting.
The Supreme Court with respect was overwhelmed in its interpretation on the powers of INEC
under section 153 of the Electoral Act. That is whether any regulation, guidelines and manual
made in furtherance of the power of INEC to do so can supersede the provisions of the Act. This
was because the Supreme Court failed to acknowledge that universally, it is accepted that holders
of executive powers are entitled to use those powers, properly delegated to them to make
regulations that will enhance the attainment of the objectives of the principal law.52 (The
underline is for emphasis). The Nigeria Electoral Act does not need to specify that INEC can use
an electronic device to conduct election any more than it must specify that INEC can use
electronic type writers or computer to print its official correspondence.53 INEC was on firm
ground to have under its regulatory powers introduced the use of card reading machines to
enhance the credibility of the electoral process in furtherance of its legal and constitutional duty
to conduct free and fair election.54 The Supreme Court its literal interpretative methodology
adopted in the cases has succeeded in micro-managing the well conceived innovative technology
of the card reader machine in addressing the myriad of problems that have characterized electoral
processes in Nigeria. The Supreme Court closed its eyes to the well known problems that have
characterized the election processes in Nigeria, leading to the well thought innovative
intervention of the introduction of technology in the elections processes in Nigeria, particularly
the card reader machine.
It needs no reminder that courts globally and Nigeria inclusive is invested with judicial law
making powers through the instrumentality of judicial activism. Therefore, judicial decisions
should always take more account and more intelligent account of the social facts which upon
which law must proceed and to which it is to be applied. The focus should not be on the abstract
content of the laws but on how they actually work. It is important to consider the purpose of laws
and modify them if these purposes are not being achieved. And judges should regard the law as
suggestive rather than determinative of their decision: if strict application of the law would result
in an out come that is unjust or contrary to the purpose of the law, then flexibility in the cause of
52
Mahmoud, A. B., (2016), Business as Usual or Business Unusual: the Future of the Legal Profession and
nd
Democratic Development in Nigeria, a Convocation Lecture presented at the 32 Convocation Ceremonies of
nd
Bayero University Kano, Friday, 22 April. P. 9
53
ibid
54
ibid
justice is appropriate.55 The supreme court was therefore not on course when in the interpretative
methodology it adopted,56 it refused to accord the card reader machine a rightful place as one of
the determining factor in the process of computation of result to ensure that the total votes
correspond with the number of the electronically captured authenticated and accredited voters.
This would have helped greatly in addressing the issue of over-voting. This it would have done
using its judicial law making powers in view of the peculiarity of the characteristics of the
Nigeria election processes.
Furthermore, law is about disputes to be settled and disputes to be prevented and not about rules
all the times.57 The recent inconclusive elections held across Nigeria, resulting from the well
known problems that have characterized election process in Nigeria, was the direct consequences
of the judgments of the Supreme Court above, when it failed to accord the innovative card reader
machine technology its rightful place in the Nigeria election process. The judgments of the
Supreme Court above are sure guarantee that in the Nigeria election processes, it still remains
business as usual as it concerns the issues of the manipulation of the electoral process, brazen
falsification of election results, intimidation of voters, electoral official and observers, underage
voting, hoarding of ballot boxes and ballot papers, announcing of election results where there
was no voting, diversion of ballot boxes, ballot papers and result sheets, multiple voting across
different polling units. This is because; the near sure technology to address the issue of over-
voting was swept away by those judgments. The Supreme Court by the interpretative
methodology adopted in the judgment above refused to acknowledge that law must take into
account interdisciplinary solution to problems.58
Suffice it to say that, the reasoning of the Supreme Court in the above judgments as it concerns
the introduction of the innovative card reader machine technology in our electoral process
reflects a conservative view of the law. The views are problematic in current times. The
judgments not only lacks a substantive, transformative and democratic minded method of legal
reasoning but also pose very serious implications for post 2015 elections and our electoral
jurisprudence.

55
Pound, R., (1912), the Scope and Purpose of Sociological Jurisprudence, Harvard Law Review, 25 p.513
56
Note 50
57
Llwellyn, K. N., (1930) Our Law and its Study, The Bramble Bush Colombia Law School, New York, p. 691
58
Ellworth, P. C., (2005) Legal Reasoning, in the Cambridge Handbook of Thinking and Reasoning, Holyoak, K. J.,
and Marrison, R. G. Ed., Cambridge University Press, p. 690
It need to be emphasis here that, every judicial decision embodies a choice between up-holding
remnants of the old order and enforcing change brought about by the new; every decision to
uphold the existing law implies a sacrifice of constitutional reform, even when it is indubitably
correct or unavoidable. Even more importantly, every decision in favour of stability and certainty
or vested and acquired rights inevitably comes at the price of suppressing plurality, dissent and
change.59
It is the argument of this paper therefore that, in view of the peculiarity of the characteristics of
the Nigeria Election process, the Supreme Court, given the circumstances in the above cases,
ought to have adopted the mischief rule of interpretation as it concerns the status of innovative
card reader machine technology, in order to address and check the problem of over-voting in an
election.
The mischief rule of interpretation which was first laid down in the Heydon’s60 case, takes a
purposive approach to the interpretation of law/statute/legislation (outright or delegated) and
seeks to discover or establish the intention of 61the law maker by going outside the words of the
legislation and instead research into the history behind the legislation as well as the aims and
objectives of the legislation. The object of which exercise, is the exercise by the court of its duty,
using the interpretative methodology of the mischief rule of interpretation to suppress the
mischief and advance the remedy within the true intent of legislation.62 This progressive
interpretative methodology was succinctly captured in the above views of Ejembi Eko J.C.A. in
the case of Umana v Emmanuel as it concerns the introduction of the innovative card reader
machine technology, when he stated that I do not believe that with the fast pace of development
globally and the whole world embracing the latest IT technologies, that resistance should be
placed to emerging technologies geared towards transparency in elections, by backward
thinking interpretations that can only be deleterious to the system. Holding otherwise would be
to truncate the great efforts of the 3rd respondent (INEC) in its bid to ensure a credible
election and in so doing attempt to plug all loopholes that can be exploited by unscrupulous
persons.

59
Van der walt, A. J., (2008), Normative Pluralism and Anarchy: Reflections on the 2007 Term, CCR pp.77-128, cited
in Modiri, J. M., (2013), Race as/and the Trace of the Ghost: Jurisprudential Escapism, Horizontal Anxiety and the
Right to be Racist, Boe Trust Limited, PER/PELJ, (16) 5 p.609 @http://dx.doi.org/10.4314/Relj.v615.14 accessed
5/3/2016
60
(1954) 17 ER p. 367
61 rd
Beredugo, A. J., (2009) Nigerian Legal System: An Introductory Text, 3 Ed. Malthouse Press Limited, p. 32
62
See the case of Ifezua v Mbadugba (2001) Pt. 83 p. 2212 at 2224
Thus, even where the intention and wordings in a statute is clear as stated by the Supreme Court
in the case of Nyesom v. Peterside & Ors63as it concerns the interpretation of the provisions of
section 153 of the Electoral Act on the introduction of the innovative card reader machine
technology, it is respectfully argued that the particular words used may be given wider
application and interpretation having regards to the circumstances, the history of the case and the
characteristics of election process in Nigeria.64
Modestly, it is worthy of emphasis that, part of the task and responsibility of judges is to see and
treat each new case before them as an opportunity to rethink and re-imagine the law and legal
doctrine, to probe commonly held legal assumptions and to deepen jurisprudence in a way that
make it more valuable/responsive to a transforming, plural and heterogeneous society, instead of
formalist and conservative way of reasoning, which is seemingly a resistance to change. 65This
paper argues that the Nigeria Supreme court failed in these tasks in the cases of Nyesom v.
Peterside& Ors66, INEC v Peterside,67 PDP vs Peterside,68All Progressives Congress vs Agbaje
& Ors,69 Okereke v Umani & 2 Ors,70 Emmanuel v Umana,71 Ikpeazu v Otti,72 PDP vs Otti73 and
Shinkafi & Anor v Yari & 2 Ors.74
8.0 Conclusion and recommendations on the way forward.

In conclusion, this paper finds that the Nigeria election processes is characterized by myriad of
problems, some of are the issues of the manipulation of the electoral process, brazen
falsification of election results, intimidation of voters, electoral official and observers, underage
voting, hoarding of ballot boxes and ballot papers, announcing of election results where there
was no voting, diversion of ballot boxes, ballot papers and result sheets, multiple voting across
different polling units amongst others. This paper also finds that to address these problems,

63
Supra note 33
64 nd
See Asein, J. O., (2005), Introduction to Nigerian Legal System, 2 ed. Ababa Press Ltd, pp.58-60; see also the
cases of Corkay v Carpenter (1951) 1 KB p. 102; Wiltshire v Barrette (1966) 1 QB P. 312; Okumagba v Egba (1965) 1
ALL NLR p. 62
65
Op.cit note 59 p. 607
66
(2016) 7 NWLR Pt. 1512, p. 452
67
(2016) 7 NWLR Pt. 1512, p.555
68
(2016) 7 NWLR Pt. 1512 p. 574
69
(2015) CAR 23
70
(SC.1004/2015) Delivered on 5th February, 2015
71
(SC 1/2016 & SC 2/2016)
72
(2016) 8 NWLR Pt. 1513, p.38
73
(2016) 8 NWLR Pt. 1513, p.111
74
(2016) 7 NWLR Pt. 1511, p.340
INEC, the body saddled with the responsibility of the conduct and supervision of election in
Nigeria, in pursuant of its powers to make regulations and guidelines for the smooth conduct of a
free and fair election introduced the innovative card reader machine technology in the election
processes with a view to checkmating fraudulent politicians and electoral official. This paper
also finds that the introduction of the innovative card reader machine technology was not free of
controversy pre and post the 2015 election. Consequently, it deployment and use as well as its
legality was subject of post election litigation. Hence, calling into question and requiring
interpretations by courts in Nigeria of provision in the relevant Electoral Laws relating to it. It is
the conclusion of this paper that the Supreme Court failed to exercise it powers of judicial law
making to advance on the introduction of the innovative card reader machine technology in the
Nigeria election process. There is therefore in the circumstance the need for legislative
intervention to undertake amendment of the relevant electoral laws to accommodate the
introduction of innovative technology that will address effectively and inclusively the processes
of election from delimitation of electoral boundaries, registration of voters, notice of election,
nomination of candidates, election campaigns, election, collation and announcement of election
results. Specifically, this paper call for an urgent amendment of the provisions of sections 77, 78,
117, 118 and paragraph 15 of the third schedule to the 1999 Constitution of the Federal Republic
of Nigeria (as amended) and the provisions of section 49, 52 and 153 of the Electoral Act 2010
(as amended) to provide to the effect that the process registration and conduct of election shall
along other method be technological base and invest on INEC, the powers make regulation and
guidelines to employ any technology for the purpose of election in the performance of its
functions. More specifically, the provision of section 52 (2) prohibiting the use of technology
(electronic voting) should be expunged.