Electoral Act Amendment: Appraising real-time electronic transmission

By FEMI FALANA

Nigeria stands at a defining electoral moment. The ongoing amendment to the Electoral Act presents not merely a technical legislative adjustment but a historic opportunity to consolidate democratic transparency and institutional credibility. At the heart of this debate lies the issue of the real-time electronic transmission of polling unit results, a matter that has generated controversy, misunderstanding, and policy uncertainty.

Let us begin by clarifying the issue. Nigeria does not operate electronic voting. Ballots are cast manually. Votes are counted manually. Results are recorded manually on Form EC8A. The debate before the nation is not about transmitting digital votes. It is about whether the scanned copy of the duly completed and signed polling unit result sheet should be electronically uploaded directly from the polling unit immediately after counting and signing.

During the 2023 General Elections, the Independent National Electoral Commission, INEC, deployed the Bimodal Voter Accreditation System, BVAS, nationwide. Nigerians were assured that this innovation would enhance transparency, eliminate multiple voting, and strengthen the integrity of result management. INEC’s guidelines indicated that after votes were counted and recorded at the polling unit, the signed result sheets would be scanned and uploaded in real time to the IReV portal. However, uniform real-time uploads did not occur. INEC later cited technical glitches and publicly apologised. A former Chairman of INEC, Mahmood Yakubu, has explained that: “The BVAS used during elections does not require internet connectivity to function at polling units. The machine on election day does not require internet connection for uploads; it works offline.

“Internet connectivity is necessary only at the stage of transmitting results, particularly scanned images of polling unit result sheets. When it comes to transmission of results, that is where it needs a network; but if there is no network in the immediate vicinity, the scanned image of the polling unit-level result, which is taken using the BVAS, will be transmitted as soon as the staff move from the polling unit to the collation centre.

“We are working with telecommunications companies, and we are satisfied that there are blind spots that can be addressed.

“The machine does not require internet on election day for accreditation, and uploads can occur once network connectivity becomes available.”

The legal consequences of this development were tested before the Supreme Court of Nigeria in Atiku Abubakar & Anor v INEC & Ors (2023) LPELR-60095(SC). In that decision, the Supreme Court held that the electronic transmission of results to the IReV portal is not mandatory under the Electoral Act 2022. The Court interpreted Sections 60(5) and 64 of the Act and concluded that while electronic transmission is permissible, it is not compulsory, and failure to upload does not invalidate the election.

The Court did not reject electronic transmission as a concept. It did not declare BVAS unlawful. It merely interpreted the statute as drafted. Where legislation is permissive, courts cannot impose compulsion. This means that the responsibility now rests squarely with the National Assembly. If real-time transmission is to be mandatory, the law must state this expressly and unequivocally.

The polling unit remains the most transparent stage of the electoral process. Votes are counted openly, with party agents and observers present, and results are announced publicly. Once the Form EC8A leaves the polling unit, it becomes more vulnerable to manipulation, delay, or interference. Real-time electronic transmission is designed to preserve the integrity of the signed result at its most secure stage. Arguments suggesting that real-time transmission requires electronic voting are conceptually flawed. Transmitting a scanned copy of a signed document is fundamentally different from transmitting digital votes. Nigeria’s model involves manual voting and the digital preservation of the signed result sheet. Conflating this with e-voting distorts the debate.

Furthermore, concerns about network challenges cannot justify legislative retreat. Nigeria conducts millions of electronic banking transactions daily. Political parties conduct nationwide digital registration of members. Telecommunications infrastructure continues to expand. Where connectivity gaps exist, defined timelines and documented safeguards can address them without abandoning transparency. This reform must also be viewed within the broader context of Nigeria’s electoral challenges. Transmission reform alone will not cure all systemic weaknesses. We must confront the tribunalisation of democracy, flawed party primaries, the monetisation of campaigns, vote buying, weak enforcement of electoral offences, and voter intimidation. However, strengthening real-time transmission complements these reforms, not competes with them.

By comparison, India’s 2024 elections involved approximately 2500 political parties and 984 million registered voters. And  646 million voted in the election, and the results were collated and announced within 24 hours. The scale did not prevent technological integration. Nigeria, with a significantly smaller voter base, cannot plausibly claim an inability to upload scanned result sheets.

The lesson from the Supreme Court’s decision is clear: ambiguity in statutory drafting invites discretionary compliance. The amendment process must therefore provide that the Presiding Officer shall electronically transmit the scanned Form EC8A directly from the polling unit immediately after signing and before departure. 

The law must specify the location, timing, and consequences of non-compliance. Failure to transmit without documented force majeure should constitute substantial non-compliance. Deliberate sabotage should attract sanctions. 

Clear legislative language will reduce litigation, strengthen institutional trust, and align statutory intent with technological reality.

Democracy depends not only on voting but also on confidence in the preservation of the vote. Transparency sustains legitimacy. Ambiguity erodes trust. The National Assembly must decide whether to entrench clarity or perpetuate discretion.

We are not asking for electronic voting at this stage. We are asking that, once votes are counted and signed at the polling unit, the digital record of the signed result be immediately preserved and publicly verifiable. That is not radical. It is responsible governance. 

Nigeria’s democratic journey has endured turbulence, sacrifice, and reform. The Electoral Act 2022 was widely celebrated as progressive legislation. Retreating from its transparency aspirations would signal regression. Consolidating and clarifying its provisions would signal institutional maturity.

History will record the choice made at this moment. For the sake of constitutionalism, electoral integrity, and public trust, the choice must be for progress.

•Being the paper presented by Femi Falana SAN at the Technical Expert Meeting on the Electoral  Act Amendment convened by Action Aid at Abuja on Friday 13, 2026

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