LEGAL ADVISORY ON ELECTRONIC AND REAL-TIME TRANSMISSION OF ELECTION RESULTS IN NIGERIA ADDRESSED TO:
The Independent National Electoral Commission (INEC)
The National Assembly of the Federal Republic of Nigeria
The Nigerian Communications Commission (NCC)
The President, Federal Republic of Nigeria
Relevant ICT and Electoral Stakeholders
1. PURPOSE OF THIS ADVISORY
This Legal Advisory responds to the national controversy, protests, and legislative debates surrounding electronic and real-time transmission of election results, particularly in light of proposed amendments to the Electoral Act.
It provides a legally grounded, technologically informed, and institutionally responsible framework for resolving the controversy ahead of the 2027 General Elections.
2. THE CONTROVERSY IN LEGAL CONTEXT
The core issue is not whether electronic transmission exists, but whether it is legally mandatory, judicially enforceable, and institutionally protected.
Public concern has been heightened by:
🇳🇬Alleged dilution of electronic transmission provisions
🇳🇬Inconsistencies observed during the 2023 elections
🇳🇬Judicial pronouncements hinging on statutory wording rather than technological capacity
3. STATUTORY FRAMEWORK: THE ELECTORAL ACT
(a) Electoral Act 2022
Relevant provisions include:
🇳🇬Section 47(2) – authorises INEC to deploy electronic devices for accreditation
🇳🇬Section 50(2) – permits use of electronic voting machines (subject to conditions)
🇳🇬Section 60(5) – provides that results may be transmitted electronically in the manner prescribed by INEC
Critical Observation:
The consistent use of permissive language (“may”) rather than mandatory language (“shall”) has been central to both administrative discretion and judicial interpretation.
(b) Legal Effect of Permissive Language
Under Nigerian jurisprudence, the word “may” generally confers discretion, unless the context clearly shows a contrary legislative intention.
This has had the effect of:
🇳🇬Weakening enforceability of electronic transmission
🇳🇬Limiting the ability of courts to nullify elections solely on failure to transmit results electronically
Advisory Position:
A simple legislative amendment replacing “may” with “shall” in respect of electronic transmission would fundamentally alter the legal landscape.
4. JUDICIAL PRONOUNCEMENTS ON ELECTRONIC TRANSMISSION
(a) Failure of Electronic Transmission Alone Is Not Fatal
Nigerian courts have repeatedly held that failure to electronically transmit results does not automatically invalidate an election, where the Electoral Act does not make it mandatory.
Relevant authorities include:
Oyetola v. INEC (2023) 11 NWLR (Pt. 1894) 125 (SC)
The Supreme Court emphasised that where the Electoral Act does not expressly mandate a procedure, non-compliance cannot be presumed to be substantial without proof of effect on the result.
Atiku Abubakar v. INEC (2023) 19 NWLR (Pt. 1917) 1 (SC)
The Court held that failure to upload results to the IReV portal in real time did not, by itself, invalidate the election, as electronic transmission was not made mandatory by statute.
(b) Courts Are Bound by the Law as Written
In PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525, the Supreme Court reiterated that courts cannot import obligations into an electoral statute that the legislature did not expressly impose.
Implication:
The judiciary has consistently deferred to the legislature on the question of whether electronic transmission should be compulsory.
5. TECHNOLOGICAL CAPACITY AND ADMINISTRATIVE DISCRETION
(a) INEC’s Powers
Under Section 148 of the Electoral Act 2022, INEC has broad powers to issue regulations, manuals, and guidelines.
However, the courts have held that:
INEC Guidelines cannot override the Electoral Act. [See: INEC v. Musa (2003) 3 NWLR (Pt. 806) 72 (SC)]
Thus, even if INEC promises real-time transmission in manuals or press briefings, such promises lack binding force unless anchored in statute.
6. TELECOMMUNICATIONS AND REGULATORY ASSURANCES
The Nigerian Communications Act 2003, particularly:
Section 4 (objects of the NCC), and
Section 70 (duty to ensure availability of communications services),
empowers the NCC to:
🇳🇬Ensure nationwide connectivity
🇳🇬Support critical national infrastructure, including elections
Where regulatory assurances are given, administrative law principles of legitimate expectation arise, though courts have been cautious in enforcing them without statutory backing.
7. ELECTRICITY, RURAL CONNECTIVITY, AND LEGAL REALITY
Arguments based on electricity and network limitations, while factual, do not amount to legal impossibility.
Nigerian courts distinguish between:
Impossibility and
Administrative inconvenience
[See: Amaechi v. INEC (2007) 18 NWLR (Pt. 1065) 42 (SC)]
The Court held that administrative difficulty cannot excuse non-compliance with clear statutory commands. Thus, once electronic transmission is made mandatory by law, logistical excuses will not suffice.
8. COMPARATIVE AND CONSTITUTIONAL PERSPECTIVE
(a) Constitutional Imperatives
Under Section 14(2)(a) of the 1999 Constitution, sovereignty belongs to the people. Elections, therefore, must not only be conducted, but must be seen to be credible.
Transparency mechanisms, including electronic transmission, directly advance this constitutional principle.
9. FEASIBILITY AND FINANCIAL IMPLICATIONS
The courts have recognised that:
Public expenditure aimed at protecting democratic legitimacy is constitutionally justifiable.
[See: Attorney-General of the Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 (SC)].
Investment in electoral transparency is therefore a legitimate constitutional priority.
10. RECOMMENDATIONS (LEGALLY GROUNDED)
To the National Assembly:
🇳🇬Amend Section 60(5) of the Electoral Act by replacing “may” with “shall”
🇳🇬Expressly mandate electronic transmission from polling units to INEC servers
🇳🇬Limit administrative discretion that undermines enforceability
To INEC:
🇳🇬Align operational guidelines strictly with statutory provisions
🇳🇬Avoid representations not firmly supported by law
🇳🇬Prepare for mandatory compliance once the law is amended
To NCC:
🇳🇬Provide technical guarantees pursuant to statutory mandate
🇳🇬Treat elections as critical national communications operations
To the Presidency:
🇳🇬Support legislative clarity
🇳🇬Uphold constitutional duty to strengthen democratic legitimacy
11. CONCLUSION
The Nigerian courts have been consistent: They will not enforce what the law does not command. The controversy over real-time transmission is therefore not judicial, not technological, and not financial.
It is legislative and political. Once the law is clear, institutions will comply, courts will enforce, and public trust will follow.
Dr King Nkum James is a Lawyer, Scholar, and Executive Director of Kingsland Foundation
Cc
Asiwaju Bola Ahmed Tinubu
World Movement for Democracy
Democracy Now!
National League for Democracy
National Endowment for Democracy
INEC Nigeria