By Victor Opatola

Elections serve as the cornerstone of democracy, providing legitimacy to governments and ensuring the active participation of the electorate in governance. As emphasized by Sarah Birch in her work, Electoral Malpractice (2011), argued that free and fair elections devoid of manipulation of rules, manipulation of voting and manipulation of voters are not merely procedural requirements but fundamental conditions for a functioning democracy. However, beyond the act of casting and counting votes, the processes that precede elections are equally crucial in safeguarding electoral integrity. Among these processes is the meticulous documentation of sensitive electoral materials, a legal requirement enshrined in electoral laws worldwide.

In the Nigerian context, Section 73(2) of the Electoral Act, 2022, mandates that the Independent National Electoral Commission (INEC) must record the quantity, serial numbers, and other particulars of result sheets, ballot papers, and other sensitive electoral materials before elections commence. Section 17(c) of the INEC electoral guidelines also provide the same thing. These statutory provision is designed to prevent electoral malpractices such as ballot stuffing, multiple voting, and the unlawful substitution of result sheets. Failure to comply with this requirement raises significant questions about the transparency and legitimacy of an election. The obligation placed on INEC by Section 73(2) of the Electoral Act, 2022 and Section 17 of the INEC Guidelines, is neither optional nor discretionary. The Supreme Court, in multiple decisions, has underscored that statutory provisions governing electoral processes must be strictly adhered to. In Augustine v. INEC (2024)10 NWLR 409, the apex court reaffirmed that the requirement to document electoral materials before the commencement of voting is a fundamental safeguard against post-election disputes. The principle that emerges from this and similar decisions is that non-compliance with this provision is not a mere technical irregularity but a substantive defect capable of invalidating an election. Further reinforcing this legal position, it is trite law that where the law mandates a public body to perform an act in a particular manner, failure to comply with that directive renders the act legally questionable. This principle, derived from the Latin maxim expressum facit cessare tacitum (express mention of one thing excludes the implication of another), shows that where the law explicitly requires a step to be taken, failure to do such raises legal issues.

While courts have consistently emphasized strict compliance with electoral laws, the doctrine of substantial compliance remains a central consideration in determining the validity of elections. Section 135(1) of the Electoral Act, 2022, provides that an election shall not be invalidated by non-compliance unless such non-compliance substantially affects the outcome. This principle, famously articulated in Ojukwu v. Yaradua (2009) 12 NWLR (Pt. 1154) 50 , ensures that trivial deviations from procedural requirements do not disrupt democratic processes. However, the jurisprudence surrounding substantial compliance has evolved to recognize that some procedural breaches strike at the very heart of electoral integrity. In Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342 the Supreme Court held that certain statutory infractions that goes to the root of the election itself cannot be mitigated by the doctrine of substantial compliance. Thus, the failure to document sensitive electoral materials prior to voting raises significant concerns, as it creates uncertainty about the legitimacy of the materials used during the election.
Another aspect of the electoral Act that has been interpreted strictly by the Supreme Court is the issue of IREV. In recent electoral disputes, the role of the INEC Result Viewing Portal (IREV) in verifying election results has become a contentious issue. The Supreme Court, in Lawal v. Matawalle (2024) 12 NWLR (Pt. 1951) 33 provided clarity on the matter. The Court held that Clauses 38(i) and (ii), 48(a), and 93 of the Regulations and Guidelines for the Conduct of Elections, 2022 expressly provide for IREV as part of the election process, particularly for verifying the correctness of INEC’s hard copies of election results. The Court of Appeal erred in declaring that IREV was not part of the election process, contradicting earlier decisions such as Oyetola v. INEC (2023) 11 NWLR (Pt.1894) 125 and Atiku v. INEC (2023) 19 NWLR (Pt. 1917) 761. By reaffirming IREV’s role, the Supreme Court underscored its importance in ensuring electoral transparency and accuracy. This decision aligns with international best practices. In Raila Odinga & another v Independent Electoral and Boundaries Commission & others [2017] KESC 31 (KLR) the Supreme Court of Kenya nullified a presidential election on the basis of procedural irregularities, holding that “electoral integrity is not merely a function of outcomes but of processes leading to those outcomes.” This judgment emphasized that an election conducted in violation of prescribed procedures cannot be deemed valid, regardless of the margin of victory.
The failure to record and mark sensitive electoral materials before elections has significant legal and practical consequences. One of the most critical implications is the compromise of electoral transparency, which is a fundamental pillar of democratic governance. Transparency ensures that electoral processes are free, fair, and credible. As Larry Diamond noted in The Spirit of Democracy (2008), the legitimacy of democratic institutions is fundamentally weakened in the absence of transparency. Also in his popular article, The Democratic Rollback: The resurgence of the predatory state, Larry Diamond emphasised that before democracy can spread further, it must take deeper root where it has already sprouted. For democracy to triumph, the natural predatory tendencies must be restrained by rigorous rules. These predatory tendencies mentioned by Larry Diamond are what the section 73 of the Electoral Act, section 17(2) of INEC guidelines and IREV seeks to tame. When the Independent National Electoral Commission (INEC) fails to mark electoral materials properly, it creates opportunities for manipulation and fosters distrust in the electoral system. This distrust and lack of transparency eventually leads to low participation and low turn out, and with low turnout, low participation, and low public engagement, our democracy will eventually become what Bernard Manin in the Principles of Representative Government (1997) called “audience democracy.”

Beyond transparency concerns, the absence of prior documentation significantly increases the susceptibility of elections to fraud. Without a proper record of electoral materials, it becomes easier to introduce unauthorized ballot papers and result sheets, a situation that has historically plagued Nigeria’s electoral process. Allegations of ballot stuffing and result tampering have frequently surfaced in past elections, further reinforcing the need for strict documentation and security measures. Legally, non-compliance with electoral laws can have severe consequences, including the nullification of election results. Nigerian courts have consistently held that substantial non-compliance with electoral laws can render an election invalid. In Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246, the Supreme Court underscored the principle that any non-compliance affecting the sanctity of votes could warrant the annulment of election results. Failure to adhere to statutory requirements, such as those outlined in Section 73(2) of the Electoral Act, exposes elections to legal challenges and increases the likelihood of judicial intervention.

Another major consequence of failing to document electoral materials is the erosion of public trust in electoral institutions. A strong democracy relies on citizens’ confidence in the fairness and competence of electoral bodies. Scholars all over the world has posited that the strength of democratic institutions is measured by the trust citizens place in the electoral process. When INEC fails to meet its statutory obligations, it creates perceptions of bias, inefficiency, and possible misconduct, ultimately undermining the credibility of elections and weakening democratic stability.

In the end, democracy dies not necessarily in the hands of dictators with guns, or generals or corrupt elites, but democracy dies through failure of rule of law and adherence to stipulated rules and electoral guidelines. The duty on INEC is a sacred obligation not only to itself but to the country, because its duty is a major guardrail protecting our democracy. For the foreseeable future, INEC needs to be alive to this obligation by obeying its own regulations and the Supreme Court judgement concerning the role of IREV as a critical part of the election process; and their inescapable duty to defend the integrity of elections by ensuring they record in prescribed forms the details of sensitive election materials.

Opatola Victor is a legal practitioner and writes from Abuja.