By Olisa Agbakoba, SAN
Nigeria’s electoral framework has been plagued by persistent legal uncertainty, forcing courts to determine election outcomes. This uncertainty stems from a fundamental failure: the absence of strong regulatory processes backed by express statutory authority. With every election cycle, we rush to amend the Electoral Act. Yet we continue to grapple with the same challenges, leading to continued rounds of amendments.
This vicious cycle must end. The 2023 election exposed a critical gap in our electoral legal framework. Despite INEC’s deployment of the IReV portal for electronic transmission of results, the Supreme Court ruled that this innovation lacks legal force. The Court held that because electronic transmission is not expressly provided by the Electoral Act 2022 (appearing only in INEC’s Regulations and Guidelines), it is not legally binding. And that the IReV portal serves merely for public viewing and is not admissible evidence of results in election petitions.
The message was unmistakable: without explicit statutory provision, electronic transmission remains optional and legally inconsequential, no matter how transparent or efficient it may be. This legal gap creates an insurmountable evidentiary burden in election petitions. The late Justice Pat Acholonu, in Buhari v. Obasanjo (2005) doubted that a petitioner could successfully challenge a presidential election.
He noted that a petitioner needed to call approximately 250,000 to 300,000 witnesses across electoral constituencies in the country, and even if successful, the president-elect would have completed the four-year tenure, rendering any victory “an empty victory bereft of any substance.” This prophecy has proven tragically accurate. No presidential election petition has ever succeeded since 1999. This is precisely because the evidentiary proof of results verification from over 176,000 polling units nationwide is a practical impossibility within the short timelines allowed by law.
History offers a proven solution. The June 12, 1993 election remains Nigeria’s gold standard for electoral credibility, not because of sophisticated technology, but because of uncompromising transparency. The Option A4 system ensured immediate, open verification at polling units, where voters, party agents, and observers could witness and confirm results before any collation occurred. Despite entirely manual processes, this transparency generated unprecedented public confidence.
Both local and international observers acclaimed it as Nigeria’s freest and fairest election. If manual transparency could achieve such credibility in 1993, imagine the transformative impact of real-time electronic transmission in our digital age in 2026! It would combine immediate verification with tamper proof digital records, delivering the same transparency with far greater efficiency, security, and verifiability. The current legislative process represents a monumental opportunity for the National Assembly to resolve this fundamental issue before the 2027 general elections.
Nigerians need a perfect framework for transparency and to restore confidence in the electoral process. Without this amendment, we risk perpetuating the same cycle of disputed elections, protracted litigation, and damaged democratic credibility that has plagued Nigeria’s Fourth Republic. The National Assembly must act decisively to embed mandatory real-time electronic transmission of results in the Electoral Act, removing all ambiguity and closing the legal loopholes that have been exploited to undermine the people’s will.
Democracy demands nothing less. Dr. Olisa Agbakoba,a Senior Advocate of Nigeria and past President of the Nigerian Bar Association, is a former presidential candidate and elder statesman.
