Abstract
There is already a developed body of literature on electronic accreditation in the context of elections, but discourse on the evidence-related consequences of this e- accreditation is sparse.
In other words, scholarship’s searchlight on the admissibility and weight of “computer evidence from e-accreditation machines (CEEM)” in electoral litigation needs to be brighter than ever. This legal inquiry is important as elections are sometimes won or lost in courts and on the basis of such electronically-obtained electoral data. This gap will be filled by the present paper.
Using Nigeria as a case study, this paper undertook a doctrinal analysis of its appellate courts’ opinions on “electronic accreditation”. The analysis shows that the admissibility of CEEM often turns on the age-long hearsay rule; however, considering the unique nature of CEEM, this paper argues for a revised attitude towards the hearsay rule.
In ascribing weight to the admitted CEEM, this paper proposes a standard that is based on the Relative Plausibility Theory; this standard will ensure that parties’ evidence is fairly evaluated and that winners are not made into losers in the courts.
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Notes
- 1.
Nigeria’s choice is strategic. Nigeria represents a group of countries with manual voting systems augmented by the most basic form of voting technology. Therefore, an incisive analysis of the evidential challenges of “evidence from e-accreditation machines” in these countries will provide their judicial systems with a good head-start for when and if they transit to full-blown electronic voting.
- 2.
At present, Nigeria utilizes voting technology for the purposes of voters’ registration and accreditation. These technologies are in the form of a “direct data capture (DDC)” device for voters’ registration and an “electronic card reader device” for the purpose of voters’ accreditation.
- 3.
For example, conflict between e-accreditation rules on the one hand and constitutionally guaranteed rights or rights enshrined in the Electoral Act on the other hand.
- 4.
This species of evidence will hereinafter be simply referred to as “CEEM” in this paper.
- 5.
The “hearsay rule” is a long-standing rule in the law of evidence. Subject to established exceptions, it states that only the maker of a statement is permitted to tender such statement in proof of the truth thereof. The general rule is stated in section 38 of the Nigerian Evidence Act.
- 6.
The Doctrinal Method was adopted because it allows this researcher to interpretatively analyze judicial reasoning in electoral litigations.
- 7.
Hereinafter referred to as the “RPT.”
- 8.
On appeal at both the Court of Appeal and the Supreme Court of Nigeria, the nomenclature of the petitioners later changed to “Respondents.”
- 9.
Section 285(2) of the 1999 Constitution of Nigeria (as amended) established the “Governorship and Legislative Houses Election Tribunal” and granted it the original jurisdiction to hear challenges to the Governorship and State Legislative Houses elections.
- 10.
This is one of the 36 States in the Federal Republic of Nigeria.
- 11.
Electoral Act 2010 (as amended), s 49(1) & (2) (“Any person intending to vote with this voter’s card, shall present himself to a Presiding Officer at the Polling Unit… (The Officer) shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.”) (emphasis added)
- 12.
“Faux pas”- “words or behaviour that are a social mistake or not polite” https://dictionary.cambridge.org/de/worterbuch/englisch/faux-pas Accessed 6th December, 2017.
- 13.
The 2016 general election in the USA is a notable example. The crisis of confidence in electronic voting can be seen in the unending allegations of interference levelled against the Russians and has highlighted the need to improve the security of elections.
- 14.
The petitioner had, relying on the card readers, sought the voiding of the election based on the allegation that the figure was over-bloated and that only 438, 127 voters were accredited.
- 15.
These antics sometimes result in the strange unavailability of key electoral officers whose testimony could have strengthened the case of the petitioners. Furthermore, where the independence of the judiciary is compromised, the issuance of a “Subpoena ad testificandum” on a key witness might serve no practical purpose.
- 16.
Specifically, records that are regarded as “certified public documents” under Nigerian laws.
- 17.
The Nigerian rules of evidence can also adopt this initiative, for example, by admitting a “Card Readers’ Report” tendered by a non-maker public officer while preserving the courts’ right to ascribe relevant weight thereto.
- 18.
For example, section 34 of the Nigerian Evidence Act makes provision for the role of “circumstantial inference” in evaluating the weight ascribable to any admitted evidence.
- 19.
See generally: the USA Case of Americans for Safe Access v. County of Alameda, 174 Cal.App.4th 1287, 1291 (2009), where the Court listed the relevant documents that must be produced to authenticate the accuracy of votes produced from a DRE voting machine.
- 20.
Since the RPT requires the party to bring up their own stories, we will only be concerned with how “coherence” helps the fact-finders to determine the best of the offered stories.
- 21.
According to Prof. Allen, it might be difficult to give “rationality” a fixed definition; however, it entails that the explanation is consistent, uniform, coherent, simple and economic.
- 22.
BRIDGE is an acronym for “Building Resources in Democracy, Governance and Elections”.
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Acknowledgements
The author is grateful to the DAAD for providing the funding with which this research work was carried out. Special appreciation also goes to Prof. Dr. Tim W. Dornis and Prof. Dr. Axel Halfmeier of the Leuphana Law School for their valuable advice on its original draft. For finding time to shepherd the paper to completion, the author is also indebted to Prof. Jordi Barrat. However, any error(s) discovered in the paper remains that of the author.
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Omosele, F.O. (2018). Winning the Election, but Losing the Litigation: A Prognosis of Nigerian Judicial Attitudes Toward Evidence Produced from ‘E-Accreditation Machines’. In: Krimmer, R., et al. Electronic Voting. E-Vote-ID 2018. Lecture Notes in Computer Science(), vol 11143. Springer, Cham. https://doi.org/10.1007/978-3-030-00419-4_11
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