The Independent National Electoral Commission (“INEC” or “Commission”) has recently issued fresh Regulations and Guidelines for the Conduct of Elections 2022 dated 24th May 2022 which would be used for the conduct of general, off-cycle, bye-elections, re-run and supplementary elections in 2023.
The Regulations and Guidelines are issued pursuant to provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 149 of the Electoral Act, 2022 and they supersede all other regulations and/or guidelines on the conduct of elections previously issued by the Commission.
They shall remain in force until replaced by new regulations and guidelines or updated by way of revisions or supplementary regulations and guidelines.
The following are some of the salient provisions of the Regulations examined by the Authors:
Clause 1: Elections to which the Regulations and Guidelines apply
The Regulations and Guidelines shall apply to the conduct of Elections to the following offices:
(i) President and Vice President;
(ii) Governor and Deputy Governor;
(iii) National Assembly (Senate and House of Representatives);
(iv) State Houses of Assembly;
(v) Chairmen and Vice-Chairmen of the Federal Capital Territory (FCT) Area Councils; and
(vi) Councilors of FCT Area Councils Legislature.
It follows that the Regulations and Guidelines are not applicable to the Local Government Elections for Chairmen, Vice Chairmen, and Councilors in the 36 States of Nigeria.
Clause 2: Date of General Elections
The Regulations provide that election to the office of President and Vice President as well as National Assembly shall hold on the Third Saturday of February of any General Election year while election to the Office of Governor and Deputy Governor and the State Houses of Assembly shall hold two (2) weeks thereafter.
Pursuant to the Timetable and Schedule of Activities for 2023 General Election dated the 26th day of February 2022, the Presidential & National Assembly Elections will hold on the 25th of February 2023 while that of the Governorship and State Houses of Assembly will hold on the 11th of March 2023. It is important to state that these days are subject to change by postponement where in the opinion of the Commission it is impracticable to conduct the Elections on the said dates due to serious breach of the peace or natural disasters or other emergencies in line with Section 24 (2) of the Electoral Act 2022. The reason(s) for the postponement of the Election(s) must be cogent and verifiable. It will be recalled that the 2015 Presidential and National Assembly Elections were postponed from February 14, 2015 to March 28, 2015 while that of Governorship and State Assembly Elections were postponed from February 18, 2015 to April 11, 2015 due to security concerns in the Northern part of the Country. It was reported by the then INEC Chairman that the security operatives informed the Commission that “they were commencing a six-week special operation against Boko Haram insurgents in the North-Eastern corridors of the Country and would rather not be distracted by the elections.”
Clause 3: Date of Off-Cycle Governorship Elections
For an off-cycle Governorship election, that is any Governorship election that falls outside a General Election, the election shall hold on the Saturday preceding the 100th day to the end of the tenure of the incumbent or as may be determined by the Commission.
Currently, we have not less than five (5) States in Nigeria where the Governorship elections are off-cycle. For example, the Kogi State gubernatorial election took place on November 16, 2019, the Edo State gubernatorial election occurred on September 19, 2020, while that of Anambra State gubernatorial election was held on November 6, 2021. INEC fixed Ekiti and Osun Governorship elections to hold on June 18, 2022 and July 16, 2022 respectively. It is important to note that the Houses of Assembly of the above-mentioned States are still part of the General Elections cycle. In another article, the author would trace the origin of off-cycle Governorship election and its implications in Nigeria.
Clause 5: Persons Eligible to Vote
Eligibility to vote in an election is a constitutional issue and no doubt a very sensitive topic. Therefore, the provision of the Regulations on eligibility draws from the provisions of the 1999 Constitution (as amended). In the Regulations, a person is eligible to vote in an election conducted by INEC if: (i) He/she is a Nigerian Citizen. (ii) He/she is a registered voter. (iii) His/her name appears in the Register of Voters. (iv) He/she presents a valid Permanent Voter’s Card (PVC) at his/her Polling Unit.
Clause 7: Location of Polling Units
Whenever practicable, Polling Units shall be located within enclosures in public places accessible to every voter, including Persons with Disabilities (PWDs). Where they are in open spaces, canopies may be provided. Public places include public schools, civic centres, town halls, and communal open spaces. It is important to point out that Polling Units shall not be in places of worship, palaces of traditional rulers and private homes. The goal of this Clause is to avoid possible undue influence on voters from religious and traditional Leaders.
Clause 10: Appointment/Qualification of Polling Agents
According to the Regulations, no person shall be qualified to be appointed or serve as a Polling Agent of any Political Party at an election if he/she is serving as Chairman or member of a Local Government Area or Area Council, Commissioner, Deputy Governor or Governor of a State, Minister of the Federal Government, or holding elective or appointive political office, or is employed in the public service under any tier of government and has not resigned from his office at least three months before the election.
It is instructive to state that part of the provisions of this Clause are closely related to the provisions of Section 84(12) of the Electoral Act where Political Appointees are expected to resign from office before they can vote as delegates or be voted for in the Party’s Primary Elections of their respective political parties. The intention of the drafters of the Regulations and the Electoral Act is to reduce a possible undue influence from politicians holding elective or appointive political offices.
Clause 11: Disqualification of a Polling Agent
A Polling Agent who aids and abets election malpractices at a Polling Unit or Collation Centre shall be disqualified and on the instruction of the Poll Official/ Collation Official, removed from the Polling Unit/Collation Centre and be liable to prosecution.
Clause 12: Inspection of Samples of Relevant Electoral Material
The Commission shall identify samples of relevant electoral materials for inspection by Political Parties in compliance with Section 42 (2-5) of the Electoral Act 2022 and: (i) Invite all Political Parties that nominated candidate(s) in the election to confirm its identity on samples of relevant electoral materials proposed for the election; (ii) The Political Parties shall within two (2) days of the inspection, approve or disapprove in writing, their identities on the samples of the electoral materials for the election; (iii) Any Political Party that fails to approve or disapprove its identity in writing within two (2) days of the inspection, shall not complain of unlawful exclusion as regards its identity; and (iv) Failure to participate in the inspection as notified by the Commission shall be deemed to be approval of the Political Party’s identity.
Gone are the days when Political Parties will take INEC to court for wrongful exclusion of Party logo or name especially when a Political Party fails to notify INEC in writing within two (2) days of the inspection of its approval or disapproval of its identity or where a Political Party fails to participate in the inspection of the relevant materials.
Clause 13: Method of Voting
Voting shall be in accordance with the Continuous Accreditation and Voting System (CAVS) procedure as specified in the Regulations and Guidelines, the Election Manual, and any other Guide issued by the Commission. This is a continuation of the voting method of 2019 where the accreditation ends at the end of the voting period in a polling unit unlike what was obtainable in the past when there was a time allotted for accreditation of voters. Then, voters were not allowed to cast their votes until the end of the accreditation. That is no longer the case. Both accreditation and voting are now done simultaneously.
Clause 14: Verification using BVAS
No person shall be allowed to vote at any Polling Unit other than the one at which his/her name appears in the Register of Voters and he/she presents his/ her PVC to be verified using the Bimodal Voter Accreditation System (BVAS), or as otherwise determined by the Commission. In 2019, what was used by INEC was the smart card reader (SCR). We are looking forward to using the BVAS in a general Election in 2023. It is the author’s wish that INEC improves on the functionality of the BVAS in Ekiti and Osun States to avoid the kind of frustration recorded where it was deployed in Isoko South 1 State Constituency election on September 11, 2021, the Anambra State gubernatorial election of November 9, 2021 and the FCT Area Council elections on February 12, 2022.
It is also important to state that by virtue of Clause 18 of the Regulations and Guidelines, the use of BVAS at the polling units is mandatory and failure to use the system by any poll official in the manner prescribed by the Commission shall be deemed to be guilty of dereliction of duty and shall be liable to prosecution. Anyway, it is the Court that declares someone guilty where the offence is proven beyond reasonable doubt and not a Regulation by INEC.
Clause 19 (b) (vii): Priority Line
The Regulations and Guidelines provide the creation of a priority voters’ line for pregnant women, nursing or breastfeeding mothers, aged persons, and persons with physical disabilities. That means the pregnant women, nursing or breastfeeding mothers, aged persons, and persons with physical disabilities must have a separate line from the normal line for the other voters not mentioned above.
Clauses 19 (f) (iii) & 30: No cell phone is allowed inside the Cubicle
Before the Voter proceeds to cast his vote, he/she is expected to remove any cell phone or photographic device in his/her possession before proceeding to voting cubicle. This is to reduce vote-buying and the capturing of ballot papers as evidence of votes cast.
Voters may come to the Polling Unit with telephones and other electronic devices provided they do not take them to the voting cubicles or take pictures of other voters while they are voting.
Clause 20: Failure of Accreditation after three trials
Where a voter cannot be identified by the BVAS for the Polling Unit using the methods outlined in Clause 19 (d) of these Regulations and Guidelines or where the voter’s fingerprint or face cannot be matched with the details in the BVAS after three trials, the voter shall not be allowed to vote.
In the 2019 General Elections, INEC adopted the voting process of simultaneous accreditation and voting with strict adherence to the use of Smart Card Readers (SCR) and with no room for the use of incident forms to forestall the fraud or abuse by election officials or other stakeholders at the Polling Units.
Clause 23: Sustained Malfunction or Replacement of BVAS and Continuation of Elections
In the event of sustained malfunction of BVAS, the Presiding Officer (PO) shall: (i) immediately inform the LGA and Registration Area (RA) Supervisors, the Supervisory Presiding Officer (SPO), the Electoral Officer (EO), and the Election Monitoring and Support Centre (EMSC) for replacement. (ii) Suspend Accreditation and Voting until a new BVAS is made available. (iii) File a report of the incident to the designated Official. (iv) inform the voters and polling agents of the situation.
Where a replacement BVAS is not available by 2:30 pm, the Presiding Officer shall: (i) Inform the LGA and RA Supervisors, SPO, EO, and EMSC of the situation. (ii) File a report of the incident. (iii) Inform the voters and polling agents that accreditation and voting for the affected Polling Unit shall continue the following day.
Where a BVAS is replaced in the middle of an election, the data of verified voters in the faulty BVAS shall be merged with data in the replacement BVAS for purposes of determining the number of verified voters.
Clause 24: Privileges to visually Impaired or voter with disability (PWD)
The Presiding Officer shall allow a voter who is visually impaired or with other forms of disability, who is unable to distinguish symbols or who has any other physical disability to be accompanied into the Polling Unit and be assisted to vote by a person chosen by him/her, other than an Election Official, a polling agent or security personnel on election duty.
Visually Impaired registered voters may where available, use Assistive Voting Devices such as the Braille Ballot Guide or magnifying glass.
No person shall accompany a voter to the voting area or assist a voter in marking a ballot paper, except as specified in these Regulations and Guidelines.
As stated above, PWDs, visibly pregnant women, nursing or breastfeeding mothers, and the elderly, shall be granted priority access to voting at the Polling Units.
Clause 26: Voter not to Make a Mark for Identification
A voter shall not make any mark on the ballot paper by which he/she may be identified. If he/she does so, such ballot paper shall be rejected provided that any print resulting from the staining of the fingerprint of the voter in the voting compartment shall not be deemed to be a mark of identification.
Clause 27: Accidental Spoiling of Ballot Paper
A voter who by accident spoils his/her ballot paper such that it cannot be used for voting may present it to the Presiding Officer and if satisfied that the ballot paper is spoilt, the Presiding Officer shall issue another ballot paper to the voter in place of the spoilt ballot paper and the spoilt ballot paper shall be marked “cancelled” by the Presiding Officer and recorded in the appropriate form in the PU booklet.
It is important to distinguish when a voter accidentally spoils the ballot Paper from when a voter willfully spoils the ballot paper. It is thus at the discretion of the Presiding Officer to ascertain whether a ballot paper is spoilt or not.
Clause 28: Impersonation and Underage Voting
If a person presents himself/herself to vote and the Presiding Officer is informed that there is reasonable ground to believe that the person is underage, a non-Nigerian, or impersonating, the Presiding Officer shall: (i) Request the person giving the information to complete the prescribed form undertaking to substantiate the charge in a Court of Law. (ii) Ask the person against whom the protest is made if he/she is impersonating or underage. If the person owns up, the Presiding Officer shall not allow him/her to vote and may request the Security Official on duty at the Polling Unit to arrest the person. (iii) Where the person denies the charge to the satisfaction of the Presiding Officer, allow the person to vote. (iv) Report the action taken in accordance with i, ii and iii above in the prescribed form by the Commission and submit to the RA/Ward Collation Officer as well as the RA/Ward Supervisor.
It is expected that the above guideline will curtail the underage voting that was recorded in some parts of the country during the 2015 and 2019 general elections. It is also the author’s view that the identity of the informant is protected and his/her unwillingness to complete the said form should not deter the Presiding officer from doing the right thing suo moto.
Clause 62: Margin of Lead Principle
Where the margin of lead between the two leading candidates in an election is NOT in excess of the total number of voters who collected their Permanent Voters’ Cards (PVCs) in Polling Units where elections are postponed, voided or not held in line with Sections 24(2 & 3), 47(3) and 51(2) of the Electoral Act 2022, the Returning Officer shall decline to make a return for the constituency until polls have been conducted in the affected Polling Units and the results collated into the relevant forms for Declaration and Return.
What this simply means is that where the Margin of lead between two leading candidates is less than the total number of collected PVC in a Particular Polling Unit or Units where election did not take place, postponed, or canceled, the Presiding officer shall declare the election inconclusive. However, where the Margin of lead between two leading candidates is more than the total number of collected PVC in a Particular Polling Unit or Units where election did not take place, postponed, or canceled, the Presiding officer shall announce the total result thereby declaring a winner.
This is the Margin of Lead Principle and shall apply wherever necessary in making returns for all elections in accordance with these Regulations and Guidelines
Clause 100: Managing the Margin of Lead Principle
The following responses and procedures shall be used in managing the issues identified in this Clause during elections and collation of results, particularly in determining where supplementary elections may hold in line with the “Margin of Lead Principle”:
(i) Where the Commission is unable to deploy to Polling Units because of logistic challenges, a date for a supplementary election shall be announced.
(ii) Where there is wilful obstruction or resistance to the distribution of electoral materials or where there is resistance to the use of the BVAS or any electoral device deployed by the Commission, the affected Polling Units shall be credited with zero votes during collation and shall not count in the application of the Margin of Lead principle.
(iii) Whenever zero votes are entered or elections are rescheduled, Collation and Returning Officers shall ensure that the number of voters in the affected Polling Units are accounted for in compiling their results in order to prevent discrepancies in the figures for registered voters in the Register of Voters and the figures as collated.
(iv) Where the use of the BVAS is discontinued midway into the elections due to sustained malfunction and no replacement is available before 2:30 pm or any extended period for voting approved by the Commission, a time for a supplementary election shall be announced.
(v) Where the Commission determines that violent disruptions occurred in a substantial number of Polling Units in a constituency before the announcement of result, a fresh date for election in the affected Polling Units may be announced by the Commission, provided that further supplementary election may not hold in the case of persistent disruptions and violence.
(vi) Where a violent disruption occurs after the announcement of results and ballot papers and result sheets are destroyed, regenerate the affected results from electronically transmitted results, or results from the IReV Portal or duplicate hardcopies, fill new replacement result sheets with the approval of the Resident Electoral Commissioner and proceed with the collation of result.
(vii) Where result sheets are snatched or destroyed before they arrive at Collation Centres, regenerate the affected results from electronically transmitted results, or results from the IReV Portal or Duplicate Hardcopies, fill new replacement result sheets with the approval of the Resident Electoral Commissioner and proceed with the collation of result.
(viii) Where balloting materials are still available or remaining after disruption at any stage of the election, proceed with available materials and conclude that stage of the election. However, where materials are inadequate, a new date will be announced by the Commission to conclude the election.
Clause 91: The Principles for collation of Results
The following principles shall guide the collation of election results:
(i) Voting takes place at Polling Units. Therefore, Forms EC8A and EC60E are the building blocks for any collation of results;
(ii) All INEC staff (permanent and ad hoc) involved in the resumed collation of results shall conduct the process with openness and transparency;
(iii) In the course of collation of results, there shall be opportunity for all complaints to be heard insofar as they are not disruptive. However, the Commission and its designated officials, including Collation Officers (COs) and Returning Officers (ROs), shall have the final say in the collation of results; and
(iv) The collation shall be conducted in an atmosphere of mutual respect among all participants. There shall be zero tolerance for disruptive behavior and intemperate language, and all participants must act with decorum.
Clauses 92 & 93: Use of INEC Copies of Results where Available
At every level of collation, where the INEC copy of collated results from the immediate lower level of collation exists, it shall be adopted for collation.
However, where the INEC hardcopy of collated results from the immediate lower level of collation does not exist, the Collation Officer shall use electronically transmitted results or results from the IReV portal to continue collation. Where none of the above still exist, the Collation Officer shall ask for duplicate hardcopies issued by the Commission to the following bodies in the order below:
(i) The Nigeria Police Force; and
(ii) Agents of Political Parties.
The above guidelines lend credence to the authenticity and admissibility of duplicates of Result sheets (Form EC8A) given to the Police Officers on duty at the polling units as declared by the Supreme Court on January 14, 2020, in the case of Sen. Hope Uzodinma & Anor vs Rt. Hon. Emeka Ihedioha & 2 Ors (SC. 1462/2019) where the Appellant challenged the exclusion of votes scored in 338 polling units from Ward collation results which led to a wrong declaration of Rt. Hon. Emeka Ihedioha as the winner of the election. The Supreme Court in that case admitted and added the results of the 338 polling units as tendered by the Police officer at the Tribunal.
Clause 101: Access to Polling Units, Collation Centres, etc.
The Regulations provide that the following persons shall be allowed access to the electoral material distribution centres, Polling Units, Polling Stations, and Collation Centres, provided that they are properly documented or identified:
(i) Registered Voters (at Polling Units only)
(ii) Designated INEC Officials on Election Duty.
(iii) Approved and Designated Security Officials.
(iv) One Polling Agent per Political Party or candidate. Candidates who choose to serve as their own agents should inform the Commission in good time for proper documentation and identification.
(v) Accredited Journalists and Media Organizations.
(vi) Accredited Domestic and Foreign Observers.
Clause 102: Role of Polling Agents
The Regulations provide that Polling Agents may observe the distribution of election materials, the conduct of accreditation, voting, counting of ballots, and the collation and declaration of results. They may also call the attention of an election official to any irregularities but must not interfere. It is important to emphasize the non-interference of Polling Agents in an election. They may Countersign the appropriate result forms at Polling Units and the appropriate results collation forms at Collation Centres and comply with lawful directives issued by, or under the authority of INEC and generally conduct themselves in an orderly manner.
Clause 103: Role of Election Observers
The role of election observers is critical to every election and as the United Nations puts it
“Election Observation is a valuable tool for improving the quality of elections. Observers help build public confidence in the honesty of electoral processes.”
It will be recalled that in the 2019 general elections the INEC accredited 144 election observers made up of both domestic and foreign observers.
According to the Regulations, duly accredited Election Observers who are wearing the observer badges issued by INEC for the election are entitled to observe the process including the distribution of election materials, conduct of the voting, sorting and counting of ballots, collation of results and announcement and declaration of results, call the attention of an election official to any irregularities, but shall not interfere, and ask questions for clarification where necessary.
In Conclusion, it is the authors’ hope that these Regulations and Guidelines be strictly adhered to so as to have Free, Fair and Credible elections starting with Ekiti and Osun States.
Thank you for your time.
Moses Ani, MCIArb.
George Ukwuoma, MCIArb.
Lagos, Nigeria
June 2022
