Section 47
Accreditation of voters and voting(1) A person intending to vote in an election shall present himself with his voter’s card to a Presiding officer for accreditation at the polling unit in the constituency in which his name is registered.
(2) To vote, the presiding officer shall use a smart card reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.
(3) Where a smart card reader or any other technological device deployed for accreditation of voters fails to function in any unit and a fresh card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if the Commission is satisfied that the result of the election in that polling unit will substantially affect the final result of the whole election and declaration of a winner in the constituency concerned.
This section seeks to ensure that only persons with valid Permanent Voters Cards are allowed to vote in an election. It is the foundation of every free and fair election.
The bigger innovation is the introduction of technology for verification and accreditation of voters.
The section makes it mandatory for every intending voter to subject him/herself to screening/accreditation by presenting his/her Voter’s Card to the Presiding Officer or other designated officer of INEC in the Polling Unit where he/she is registered.
Unlike under the 2010 Electoral Act (S. 49) where accreditation was deemed complete after the Presiding Officer checks and confirms the intending voter’s name in the Voter’s Register, the 2022 Electoral Act (S. 47) now mandates the use of a technological device prescribed by the INEC for further verification and authentication of an intending Voter, such as the Smart Card Reader (SCR) or Bimodal Voter Accreditation System (BVAS) that is currently in use.
BackgroundBefore 2015, accreditation of voters was done by the marking of the voters’ register by the presiding officer at the polling unit when voters present themselves to vote in an election. In 2015, accreditation of voters was carried out by a hybrid procedure of both manual ticking of the voter's register by the officer and use of Smart Card Readers as provided for in INEC’s 2015 Manual for Election Officials.
The introduction of Smart Card Readers or any other technological device to be prescribed by the Commission in this section is to improve the integrity of the electoral process by determining accurately, those accredited to vote in an election so as to check the incidence of rigging.
It is also a response to the questions raised and decided by the Courts after the 2015 General elections where the use of Smart Card Readers was introduced in the Manual for Election Officials and not the Act itself and as a result, it was held that failure to use the card reader for accreditation of voters or a failure of the card reader machine was insufficient to invalidate the results of an election in any polling unit.
Another implication of the inclusion of Section 47 to the 2022 Act is that by the clear exclusion of manual accreditation of voters, failure of a card reader machine or failure to use it for accreditation of voters will certainly invalidate an election where the result of the election in the polling unit concerned will substantially affect the final result of the whole election and declaration of a winner. Subsection (3) emphasises this by empowering the commission to cancel an election and reschedule another one within 24 hours where the Smart Card Reader fails to function and another one is not deployed. There is however a discretionary power to INEC to determine whether the result of that polling unit will substantially impact the outcome of the election.
On Accreditation of voters and voting.
ATIKU V. INEC & ORS (CA/PEPC/05/2023)
Section 47(2) of the Electoral Act, relied upon by the Petitioners mandates every Presiding Officer to use a smart
card reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters to verify,
confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.
OYETOLA & ANOR V. INEC & ORS (2023) LPELR-60392 (SC).
The Supreme Court held that the BVAS machine for each polling unit is the direct and primary record of the number of voters
accredited in that polling unit on election day in the process of the election.
UDENDE MENSA EMMANUEL v. GABRIEL TORWUA SUSWAM, PDP,APC & INEC (CA/MK/EP/BN/SEN/14/2023) (Unreported)
In elucidating on the importance of the process of accreditation and voting as required in a valid election under the provisions of Section 47 of the
Electoral Act, 2022, the Court of Appeal held Per Otisi, JCA at pages 37 - 40 as follows:
“By the said Electoral Act and relevant regulations, the process at an election commences with the process of accreditation.
Accreditation in an election is the process by which the eligibility of the voter is verified and he is authorized to cast his vote in the election.
Accreditation is a critical step in ensuring the integrity and legitimacy of an election. it helps to prevent fraudulent voting and to ensure that only
eligible voters participate in the electoral process…Thus once a voter’s identity and eligibility are confirmed during the accreditation process,
he is issued with a ballot paper to cast his vote by marking it in the manner prescribed by the Commission…it may be further surmised that where there is no
accreditation of voters in a polling unit, no lawful vote has been cast in that polling unit; Achir & Anor v. Chabo & Ors (2019) LPELR - 48763 (CA).
In all, an invalid or unlawful vote is a worthless vote that cannot be counted or reckoned with in determining the will of the electorate,
such an unlawful vote cannot advance the success of the candidate. At the conclusion of voting at the polling unit, the Presiding Officer shall after
counting the votes at the polling unit, enter the votes scored by each candidate in the prescribed electoral form. The form shall be signed and stamped by the
presiding officer and counter signed by the candidates or their agents. The Presiding Officer then transfers the results, including the total number of
accredited voters and the results of the ballot in the manner as prescribed by the Commission.”
On How to Establish the Proper Accreditation of Voters (BVAS)
THE RIGHT HON. ETENG JONAH WILLIAMS & APC v. THE RIGHT HON. BASSEY EKO EWA, PDP, INEC (CA/C/EP/SEN/17/2023) (Unreported) Per Hassan, JCA @ Pg.12
In this case the Petitioner alleged that there was no accreditation and non-voting in 9 polling units but failed to produce the voters register,
polling agents to confirm his allegations while proving his case that elections did not hold in the polling units. The Tribunal agreed with his pleadings and
went ahead to deduct votes from the Respondent who filed this cross appeal challenging the Tribunal’s action. The Court of Appeal in upturning the order deducting
the Cross Appellant’s votes without cogent proof held as follows:
“...it is important to look at the Supreme Court decision in Oyetola & Anor v. INEC & Ors (2023) LPELR 60392 which clearly dealt with the issue of proper
accreditation of voters, the position of the BVAS Report from INEC backup server. The Apex Court in the instant case held that in order to establish the
accredited voters, it is the record on the BVAS Machine and the Voters Register that must be looked at together.”
On the consequence for resistance to the use of BVAS or any other technological device deployed for accreditation of voters.
AWOYEYE ABIOLA JEREMIAH v. ADEJOBI ADEYINKA JOHNSON (CA/AK/EP/SHA/0S/17/2023) (Unreported) @ Pg. 30-31
The Court of Appeal while deciding on which votes can be counted in the application of the margin of lead principle in circumstances when there was
obstruction or resistance to distribution of electoral materials held as follows, per Amina Audi Wambia, JCA:
“Where either of the two events occurs, namely obstruction or resistance to distribution of electoral materials or resistance to the use of the BVAS or any
similar device, the affected polling unit shall be credited with zero votes during collation and the polling unit shall not count in the Margin of Lead principle...
The dire consequences of it is also understandable since the BVAS at a polling unit has now become the only means of accreditation of voters. It is only logical
that where the voters resist the use or distribution of the BVAS, they should swallow the bitter pill of self-disenfranchisement; to the great disadvantage of the
candidate(s) they would have voted for.”
Note that the voters register is still an important part of voter verification and per 2023 election cycle decisions, both the Voters’ Register and BVAS machine are needed to prove over voting.
Relying on the provisions of the repealed 2010 Act, previous court judgments recognised the primacy of the manual voter’s register in accrediting voters and not the use of technological devices.
Only persons with valid Permanent Voters Cards are allowed to vote in an election. It is the
foundation of every free and fair election.
See: MAIRIGA & ANOR V. ALKALI & ORS (2019) LPELR-48486(CA)
Relying on the provisions of the repealed 2010 Act, previous court judgments recognised the primacy of the manual voter’s register in accrediting voters and not the use of technological devices.
For example, in OGBORU V. UDUAGHAN (2011) 2 NWLR (PT. 1232) 538 AT 599 it was held that the marking of the voters’ register proves that the accreditation of voters took place. Where an electoral register was not so marked but votes were returned for a particular voting unit, it would be safe to conclude that such votes were not obtained through due electoral process.
Also, in NYESOM V. PETERSIDE & ORS (2016) 7 NWLR (PT. 1512) 452 AT 525-526 PARAS A-A, it was noted that the use of Smart Card Reader machines bolsters the transparency and accuracy of the accreditation process during an election. But that section 49(1) and (2) of the 2010 Electoral Act which provides for manual accreditation of voters by reference to the voters’ register is existing and remains a vital part of Nigerian Electoral Law.
The Supreme Court held here, that the tribunal and the Court of Appeal were unduly swayed by INEC’s directives on the use of Smart Card Reader machines in the accreditation of voters and that INEC’s directives, guidelines and manuals cannot supersede the provisions of the Electoral Act so as to eliminate manual accreditation of voters.
See also: APC v PDP (2020) 17 NWLR (Pt. 1754) 425 It was stated that ‘The card reader machine has not replaced the voters' register and has not supplanted the statement of results in appropriate Forms. To rely on the smart card reader, without more, in proving over-voting is to invite the court to do the impossible since the card reader is to aid the voters register and not otherwise in the election process.’
Conduct of Election, 2022 dealing with Accreditation and Voting Procedure at Elections.
Paragraph 18 mandates polling officers to the Bimodal Voter Accreditation System (BVAS) or any other device approved by the Commission for voter accreditation. Failure to do so would lead to prosecution and penalty for dereliction of duty.
Paragraph 60 and 61 outlines the procedure to follow when BVAS malfunctions and is not replaced.
