Now that the President, Major-General Muhammadu Buhari (retired), has signed the Electoral Bill into law, it remains to be seen whether the new law will be the cure-all solution to the country’s electoral or election problems. But for intense public pressure, Buhari would most likely not have signed for the umpteenth time. What this shows is that Frederick Douglass is right when he posited that the people must fight for whatever freedom or rights they desire from their rulers. Fela was also right when he said the people must fight for the liberties they seek to enjoy. Even as he signed, the president also demanded that the National Assembly amend a portion of the new law that he considered offensive, a view that the Rivers State governor, Nyesom Wike, has lampooned as selfish and wicked. Laws alone do not make for just societies; the landscape of Nigeria is strewn with laws that are either not implemented or are simply not implementable. Elections are not about who votes, said Josef Stalin, but who counts the votes. Even that has changed, such that neither those who vote nor those who count the votes determine the winner here in Nigeria. How the new electoral law or e-voting will do the magic of delivering credible votes remains to be seen.

A trial, as they say, will convince – if not confuse – us! Electronic transfer of election results is a new terrain that this country has not travelled before, least of all mastered. Are we prepared? Are the relevant laws and processes in place? A Judge of the Kogi State Judiciary, Justice Alaba Omolaye-Ajileye, is an authority in this area and he has useful ideas that will make electronic voting achieve the desired results. I think we need to listen to him and do the needful before we begin, again, to rue what has befallen us. Justice Omolaye-Ajileye, in a paper delivered recently at a specialized training for prosecutors of environmental offences jointly organized by the Nigerian Institute of Advanced Legal Studies (NIALS) and the National Environmental Standards and Regulations Enforcement Agency (NESREA) in Abuja, called on heads of Courts in Nigeria to amend the rules of their courts to give room for the inclusion of electronic discovery (e-discovery).

In his paper captioned “Digital Evidence and E-Discovery in Prosecuting Environmental Cases”, Justice Omolaye-Ajileye stressed the importance of electronic discovery in litigations involving electronically-stored information (ESI) in this current age in facilitating effective administration of justice. He noted that “In this digital age characterized by the proliferation of digital devices which have facilitated the creation, storage, and communication of electronic information of all kinds, electronic discovery has become an essential and inevitable fabric of the litigation processes around the world.” According to the jurist, the emerging dominance of the information technology landscape will make the discovery of electronically-stored information (ESI) an increasingly-important tool to attain the truth in cases in our courts.

He added that with e-discovery, litigants can retrieve information from a wide range of electronic sources, including, but not limited to, social media accounts, messages, emails, documents or any other valuable data. He lamented that only the National Industrial Court has provisions guiding e-discovery in the court’s civil procedure rules while what other courts have are provisions for the inspection and discovery of hardcopy documents, which he said falls short of the requirements of e-discovery.

Justice Omolaye-Ajileye considered this a great gap that demands urgent attention because, according to him, the “primary duty of the judex, through its rules, is to provide an enabling environment that will facilitate and enhance the attainment of justice”. Speaking on the forthcoming general election, he added that the call for the incorporation of e-discovery in court rules has become more relevant and inevitable as we approach an election where, hopefully, the enabling law would provide for electronic storage and transmission of election results from polling units to collation centres.

He explained that just in the same way the extant rules of election petition tribunals provide for the inspection of election materials such as ballot papers and result sheets of the Independent National Electoral Commission (INEC), attention will surely be focused on how to access and retrieve electronically stored results transmitted by INEC to establish or test the veracity or otherwise of the results that may be announced, a process which litigants are entitled to access. He, therefore, called on the appropriate authorities such as INEC, the Federal High Court, and the Court of Appeal to begin to give careful and serious thought to issues of e-discovery as these may dominate electoral litigations in the forthcoming election.

Food for thought! So, before we walk straight into the quagmire of e-voting and electronic transfer of results, we should plug all loopholes and be ready such that, in solving a problem, we do not create another.