Section 43
Polling agents(1) Each Political Party, in consultation with its candidate, may, by notice in writing addressed to the Resident Electoral Commissioner of the State, appoint a polling agent for each polling unit and collation centre in the Local Government Area or Area Council for which it has candidate and the notice, which sets out the name, address and contact details of the polling agent, shall be accompanied by two passport photographs of each polling agent and sample signature of the polling agent and be given to the electoral officer at least 14 days before the date fixed for the election:
Provided that no person who is serving as Chairman or member of a Local Government Area or Area Council, Commissioner, Deputy Governor or Governor of a State, Minister of the Federal Government, or any other person holding elective or appointive political office under any tier of government and who has not resigned from his office at least three months prior to the said election shall serve as a polling agent of any political party, either at the polling unit or at any centre designated for collation of results of election.
(2) Notwithstanding the requirement of subsection (1), a candidate shall not be precluded from doing any act or thing which his political party, in consultation with him, has appointed a polling agent to do on his or her behalf under this Act.
(3) Where in this Act, an act or thing is required or authorised 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 Polling Agent to do the act or thing shall not, if the act or thing is otherwise done properly, invalidate the act or thing.
Due to the impracticability of a candidate to be physically present at every polling unit on election day, this provision allows political parties and candidates to appoint agents to act as their representatives at the polling unit and collation centre with the aim of protecting their party interests. They can call the attention of an election official to any irregularities in the process but are not allowed to interfere.
Polling agents perform several other functions such as working with the Presiding Officers to detect and prevent impersonation of voters by challenging persons whose identity is doubtful (See right to challenge the issue of ballot paper in Section 48 ; and impersonation by applicant to vote in Section 57 ) and countersigning results forms.
Polling agents also work to ensure that the process is followed and can make objections where necessary (see Section 64 (2) on Endorsement on rejected ballot paper without official mark) and to see that all election records relating to the poll are secured properly after the close of poll as required by law and properly transmitted. (See Section 60 , Section 61 and Section 62 of the Act )
Note also paragraph 9(1) of the INEC Regulations for the Conduct of elections which allows Political Parties to appoint one Polling Agents for each Polling Unit, for each Collation Centre and at each point of distribution of electoral materials in the constituency where it is sponsoring candidate(s) for an election.
The provision in subsection (1) stating that appointment of polling agents be done in consultation with the candidate was not in the repealed Act even though it was implied.
The provision further prohibits certain persons, particularly those holding elective or appointive political office under any tier of government from serving as polling agents, unless they have resigned from such position 3 months to the election. By adding the word “elective” which was not in the old Act, the new Act expands the application of this provision to persons occupying legislative office.
Note: Section 152 defines a “polling agent” as a person representing a political party or its candidate at the polling unit, ward, Local Government, Federal constituency, Senatorial district, State or Federal collation centres.
On the importance of Polling Agents in an election.
ABUBAKAR ATIKU & PDP v. INEC, TINUBU BOLA AHMED & APC (CA/PEPC/05/2023) @ page 655 - 656 per Tsammani JCA:
“Under our law, specifically in Section 43 of the Electoral Act, 2022, Polling Agents are permitted to be appointed by Political
Parties for each Polling Unit and collation centre. The wisdom in this is for each of the political parties involved in an election
to be represented by its own agents. The duties of an agent are to represent the interest of his/her principal. Having regard to the
fact that no mortal man can be in all the places at the same time, the law allows political parties to have their agents at all polling
units and collation centres. It is therefore not anticipated by the law for any political party to appoint an octopus agent with his tentacles
in all the polling units and collation centres. This is humanly not practicable. When, therefore, evidence is required to prove what happened in
any polling unit or a collation centre, it is only the agent who witnessed the anomaly or the malfeasance that can legally and credibly testify.“
On Polling Agents as Witnesses.
EDEOGA & ANOR V. INEC & 2 ORS (SC/CV/1130/2023)
The Tribunal held that persons who are not agents in compliance with S.43(1) Electoral Act, 2022 and Article 9(a-d) Regulations and Guidelines for
the Conduct of Elections, 2022 cannot testify as polling or ward agents. The Supreme Court affirmed this adding that persons who were presented as
"polling units and collation agents" witnesses by the Appellants and who were listed as such in the petition, but who were admittedly not duly
accredited by INEC and who did not sign election results as such agents, cannot rightly be said to be competent witnesses
or be made "eye witnesses."
WADA VS INEC (2022) 11 NWLR (PT. 1841) 293 @ 326 – 327
The Supreme Court in ruling that the pleadings of the scores of each polling unit must be made and testified to by a Party Agent or an official
here at the polling unit held as follows:
“Let me make it abundantly clear that the Nigerian Electoral Jurisprudence has not changed on what is required when a petitioner alleges that a
Respondent has not won by majority of lawful votes in an election. To succeed in his claim, the law enjoins the Appellants firstly to specifically
plead the existence of two sets of results emanating from the election. Thereafter the Appellants must adduce credible evidence that the Respondent
did not score the majority of lawful votes cast at the election….In all, the best form of evidence to be led in proof of such allegations is those
of the polling unit agents who witnessed the infractions at the various polling units.”
BUHARI V. OBASANJO (2015) 13 NWLR (PT. 941).
It is the law that Polling Unit Agents remain the best witnesses for the purpose of proving allegations whether criminal activities or otherwise, occurred at the Polling Unit level.
OKE V. MIMIKO (NO. 2) (2014) 1 NWLR (PT. 1388) 332Polling agents whose functions are defined by section 45 (now 43) of the Electoral Act, represent the respective political parties at the numerous Polling units in obvious recognition of the enormity of the task of those monitoring the election in all the Polling units of the State.
It was also held in this case that a polling agent can only testify on what transpired in his own polling unit.
See also ANDREW V. INEC (2018) 9 NWLR (PT. 1625) 507
A Polling agent, being human, can only be physically present at only one Polling unit at a given time and so cannot perform the task with the same title as Polling agent in any or all the other Polling units.
See paragraphs 9, 10, 11, 95, and 102 of the INEC Regulations for the Conduct of Elections, 2022 dealing with appointment and roles of polling agents. Other provisions in the regulations include the following:
Paragraph 15 - Polling agents among Persons allowed into the Polling Unit
Paragraph 16 - Polling agents to sign Polling Unit Attendance Register
Paragraph 17 - Polling agents to observe the electoral materials to be used for the elections and cross check its adequacy
23 (a) (iv) - the Presiding Officer (PO) to inform polling agents of sustained malfunction of sustained malfunction of the Bimodal Voter Accreditation System (BVAS)
Paragraphs 36 (b) (iii), 50 (xiv), 53 (viii), 55 (vii), etc. provides for Polling agents to countersign the appropriate result sheet series. An example is Form EC8A (PU level result sheet). Failure to do so shall not invalidate the result of the Polling Unit. Polling agents are also to collect a duplicate copy of the form.
Provisions are also made for countersigning other results forms such as EC8B (Registration Area or Ward collation result sheet) EC8C (Presidential Election Results at the LGA Level and EC8D (Presidential Election Result at National Level), etc.
