*Counsels Media On Legal Rights
Dr. Olisa Agbakoba, a Senior Advocate of Nigeria, says Nigerians and the media have the right to publish election results already in the public domain, provided the results are accurate and properly attributed to their sources.
Speaking in an interview with ARISE NEWS on Wednesday, Agbakoba said the Independent National Electoral Commission’s exclusive authority to declare election results does not prevent other parties from publishing results obtained through the electoral process.
He said, “Already in 1984, Mr Justice Candid Johnson, in the case concerning NUJ and FEDECO, affirmed the right to publish results. I think the confusion is that we confuse declaration of results. That’s the only power that INEC has exclusively, to declare the results.
“But as you know, the electoral record in terms of voting goes from the polling unit to the ward, to the local government, to the state, to the national collation, to the final announcement. That is a process. If I’m standing at the polling unit and the presiding officer reads the results, he’s read it. I can broadcast it.
“He’s read it, and I can tell you that political parties are going to set up AI processes whereby they’ll be able to pick from the IReV the results. Because the IReV is simply a compilation of all the results coming from the polling units.
“So this time, I predict that there will be speed. The question is whether I’m holding all the results in my hand, authenticated. Because Section 124 warns that if you publish fake results, in fact, the punishment for publishing fake results is in the Act.
“So that tells you that if the Act anticipates that you publish a fake result, it also means that you can publish the result. The real confusion is the doctrinal problem of what I can do, which is simply declare the results.
“The fact that I have announced the result doesn’t mean that that is the result. Remember that even the famous 1993 free and fair election in Nigeria, there was no declaration. It was on the board that people saw the results that had been written. And from there, it was projected that there would be an award.
“So there’s no question that the media particularly are entitled to publish results. In any event, the matter has been decided. It has not been appealed. And the case is NUJ versus FEDECO, now INEC. And I think that is the decision that binds everybody, including INEC.”
On the use of artificial intelligence by media organisations to collate and project election results, Agbakoba said newsrooms must ensure that their reports are based on results obtained from INEC’s Result Viewing Portal, IReV, and clearly identify the source.
He said, “It’s up to you, if your news organisation wishes to set up an AI collation process. The only restriction is that you must publish the results based on what the IReV has said. That’s all.
“You must source your results. You must say, based on IReV, I hereby project Dr. Agbakoba winner of governorship of Lagos State. You cannot say I’m projecting me as winner without attributing. There must be attribution. That’s all.
“If you watch international media, CNN, when CNN projected Obama, I saw that CNN went to the board. We project Obama as the winner based on the outcomes.
“The key here is that you can’t go on a frolic of your own and say, here are the results. The results must be results obtained from the process. And INEC has a source of information flowing from EC8A up to EC8E.”
Agbakoba also backed the argument that results published on IReV should be admissible as evidence in election petitions, saying political parties should take greater responsibility for gathering and preserving their electoral records rather than relying solely on INEC.
He said, “Let me just say, political parties are very busy. What they do is they go to court, apply to the justices and say, IReV, can you please release the results?
“But you have the results. Don’t forget that you have party political agents that signed EC8A at the polling units. So any political party that is unable to monitor its results is not qualified to be on the ballot.
“It is your responsibility by law to have 176 polling agents pulling together your results. So when these parties go to court and say, my Lord, can I have results from IReV? I think it’s lazy.
“So the point you are making is absolutely brilliant. We ought not to depend only on INEC. To this point, being able to publish and announce results can be stretched to the issue of proving cases in court.”
Responding to concerns that some political parties might lack the capacity to deploy enough polling agents and independently gather verifiable results ahead of the 2027 general election, Agbakoba said parties must be prepared to defend their mandates.
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He said, “That’s not my problem. If you, Ruben, stand election on AAA party for presidency, and you don’t have the structure, then why are you on the ballot? Why are you on the ballot?
“You must have the structures to defend your mandate, which includes the results. To any party that does not have the capacity to even gather its results, that’s its problem. Then you can’t depend on INEC’s results. You’ll have no reason to question the presumption of regularity.
“But if the party that has the equipment and the wherewithal and the heft to have its electoral records intact presents it to the court, then the presumption of regularity that flows in favour of INEC is rebuttable. The court will say, oh, we can see something else that is coming from the same source.
“So the bottom line is parties need to be prepared. That’s the bottom line. If you’re not ready to monitor the elections right across Nigeria, don’t go on the ballot. Or don’t complain.”
Agbakoba said the publication of independently compiled results obtained from INEC’s own sources could also encourage greater accountability in the electoral process.
He said, “I think what Bokola was saying earlier ties up with your point. You know, these political parties, I don’t know what’s wrong with them. I don’t know whether they even read the Electoral Act.
“They have a lot of responsibility to be able to challenge INEC’s results. But what then happens is that everyone is waiting for INEC to deliver trucks and trucks of results. What you’ve just said is absolutely correct. What Bokola said is absolutely correct.
“If the political parties have structures and they are spread around the 176 polling units, they should be able to, in a matter of hours, have authenticated results. So they don’t need to depend on INEC in court.
“All they need to show is, here are the results produced from the portals of INEC. I don’t see that the court will say no. But in all of the presidential petitions, this has never been done.
“And I’m just hoping now that I hear that some political parties are organising to do this, that that will happen. But the big thing is this, the big thing I think is this. If INEC knows it’s being watched, it’ll be careful. It’ll be careful.
“It will know that somebody is putting together an alternative credible result from the same INEC source. And I hope that will make INEC to be a lot more credible, to deliver what is accurate and not to create what you call criminal results. So we’re hoping that 2027 will be the departure from the past. Hoping.”
On the presumption of regularity that applies to official actions in election disputes, Agbakoba said political parties with the capacity to produce verifiable electoral records could challenge results declared by INEC.
He said parties that fail to gather their own results should not expect to successfully challenge the commission’s declarations without credible evidence.
“The bottom line is parties need to be prepared,” he said, adding that parties must be ready to monitor elections across the country if they intend to challenge the results.
