At the stakeholders forum held today, the 6th day of August, 2014, at the Leisure Spring Hotel, Osogbo, the Chairman of INEC, Professor Attahiru Jega, originally stated that no polling Agent would be allowed within 300 metres from the polling booth before later recapitulating. It is important to note to that the Chairman did not only goof but demonstrated high level of ignorance of the Electoral Act, 2010 that regulates electoral activities in Nigeria.
By Section 45 of the Electoral Act, 2010 (as amended) [hereinafter referred to as “the Act”] the mode of appointment of polling agents by political parties at the various polling units and collation centres was regulated. Also by section 45(2) of the Act, a candidate shall not be precluded from doing any act or thing which he has appointed a polling agent to do on his behalf under the Act. Section 45(3) also provides that where an act or thing is required to be done by or in the presence of a polling agent, the non-attendance of the polling agent at the time and place appointed for the act or thing or refusal by the agent to do the act or thing shall not, if the act or thing is otherwise done properly, invalidate the act or thing.
Thus, a candidate is at liberty to be his own agent or appoint any other person to so act for him. Since it is however impracticable for the candidate to be at all the polling units simultaneously, it is inevitable that he must appoint agents. There are so many rights a candidate or his agent possesses at the polling booth and for which it is imperative that the agent or the candidate must be present within the polling booth.
To this end, the very first pertinent provision on the importance of the presence of the polling agent at the polling unit is contained in section 50 of the Act. The section provides that:
“A candidate or a polling agent may challenge the right of a person to receive a ballot paper on such grounds and in accordance with such procedures as are provided for in this Act.”
Based on the above provision, it is clear that it is only when the polling agent or the candidate is at the polling unit that he may make such challenge on the issuance of the ballot paper to any person since he cannot be a magician that could imagine or discover same without sighting or supervising the process. A supervisor cannot be separated from the scene or event to be supervised hence, the order to distance a polling agent by 300 metres cannot be in any way sound or consistent with the rules of free and fair election.
Furthermore, by section 59 of the Act, a polling agent has the power to inform the presiding officer that he has reasonable cause to believe that the person is under the age of 18 years or that the person has committed an offence of impersonation where such a person is still within the polling unit. Based on information provided by the polling agent, the Presiding Officer has the right to order a police officer to arrest that person which shall be sufficient authority for the police officer to so act. To perform this task, It is mandatory that the polling agent has to be within the polling booth in order to identify “a person under the age 18 years or an impersonator”. If he is metres away from the polling unit, how can he inform the presiding officer?
By section 61(1) of the Act, the Presiding Officer shall regulate the admission of voters to the polling units and shall exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers. It must be noted that the Presiding Officer is a staff of the INEC and must cohabit with the persons exempted. By implication, therefore, INEC cannot exclude the polling agent. The Presiding Officer is also required to keep order and comply with the requirements of this act at the polling unit. It is, therefore, submitted that the presiding officer cannot exclude the polling agent from the polling unit. If this is the case, then a polling agent cannot be 300 metres away from the Polling Unit and still carry on his duties under the Electoral Act. This is tantamount to excluding polling agents from the election. With all the above duties of polling agents, one cannot but agree that polling agents are not only required to be in the polling units but must be in close contact or communication with the Presiding Officers. Without mincing words, the Act requires the presence of the polling agent at the polling unit. Therefore, any attempt to exclude them is not only unlawful but preparatory to the much anticipated rigging by INEC in favour of the PDP.
In addition, by section 63 of the Act, polling agents are required to take part in counting of votes and shall after the Presiding Officer signs the result or Form, counter-sign the said result or Form. Where the agent is not satisfied with the counting of votes, polling agents is empowered to demand for a recount. By the combination of sections 54(1) and 67(1) of the Act, where a voter makes any writing or mark on a ballot paper by which he may be identified such paper shall be rejected and the Presiding Officer shall endorse the word “rejected” on the ballot paper, but if an objection to the decision of the Presiding Officer to reject a ballot paper is raised by a candidate or a polling agent, the Presiding Officer shall add to the word “rejected”, the phrase “but objected to” and the Presiding Officer shall prepare a statement on the rejected ballot papers stating the number rejected, the reason for rejection and their serial number and shall on request, allow a candidate or polling agent to copy the statement so made. Again, by sections 67(2) and (3) of the Act, a polling agent shut out of the polling unit and kept at 300 metres (or any other distance) away from the polling unit cannot perform any of these statutory functions. Where any person purports to use the instrument of the law to so shut out the polling agents, such person is engaging in unadulterated illegality and criminality..
Another pertinent point raised at the forum is that relating to the decision of a voter to photographically capture his ballot paper. Going by the provisions of the Act, a voter has the right to take a picture of his or her ballot paper where the voter so decided provided the voter does not make any writing or mark on the ballot paper by which he may be identified. The summation of all the foregoing is that the INEC need to categorically come out again to clarify these position if it must not be taken to be a conspirator in the rigging plan by the PDP.
The relevant provisions of Section 125(1) and (2) which regulate the need for a polling agent, Presiding Officer or any other person to maintain secrecy of voting process has to do with a restraint on disclosing information by a third party on whether a voter actually voted for one party or another. The provisions in issue have nothing to do with a voter who decides to preserve to himself a photographic record of his voting.
We hereby consider it pertinent to notify the whole world of these unpopular decisions of INEC by which it has decided to tilt the scale of voting in favour of PDP. All lovers of democracy must object to this shenanigan as same enjoys no recognition under the Electoral Act, 2010.
Dr. Muiz Banire, a legal scholar and commissioner in the Lagos State cabinet sent his piece from Lagos.