This safeguard was introduced because INEC officials often divert sensitive materials to politicians who write false election results which are used to declare electoral victory. To stop this, the Electoral Act in Section 73(2) requires that serial numbers of all voting papers, accreditation sheets and result sheets must be written down in prescribed form before voting. If this is not done the results are invalid.
The tragedy of the Edo election is that all these safeguards were violated. INEC declared a winner with polling unit results different from polling unit results it had posted electronically in real-time from the polling unit after the voters were counted. Evidently, the result sheets used to declare the winner were fraudulently procured and not the only used for the election.
We need to break down the Edo election petition to properly understand the core issues and the legal position on each of them. The first issue concerns non-compliance, specifically under Section 73(2) of the Electoral Act, which mandates that before the commencement of polls, INEC must record the serial numbers of al sensitive materials such as BVAS machines, ballot papers, and result sheets, in the prescribed form. Failure to do so renders election in that polling unit automatically void. The Supreme Court in Augustine v. INEC clarified two crucial points. First, the prescribed form is Form EC25B, as specified by INEC itself. Second, that this is a ‘strict liability provision’. This means that the petitioner only needs to tender documentary evidence that the forms were not filled.
The idea that only the ‘maker’ of the document can speak to the form, or that the polling unit witnesses must be called, is a legal fiction, with no grounding in Nigerian jurisprudence especially given recent reforms such as Section 137 of the Electoral Act, which states that oral evidence is unnecessary where the documents themselves show clear non-compliance.
The second main leg of the petition deals with the fraudulent collation of election results. This is perhaps the most damning allegation, because it highlights a systematic manipulation of results by the umpire himself. In the Edo election, INEC printed and deployed duplicate results sheets which were used to declare figures that bore no resemblance to what occurred at the polling units. This was of course established by TAP Initiative which took the results to a forensic examiner in South Africa. They have also petitioned ICPC to investigate and prosecute those found culpable.
At Polling units, the APC would score 31 votes. This is the result posted on the Irev (the results are still there), but in the declared result certified by INEC you would see the votes recorded for APC in a result sheet not signed by the agent as 431. The position of the Supreme Court on the matter is unambiguous. In the case of Uzodinma v INEC, the Supreme Court held that where improper collation is alleged there is no need to call for polling unit agents as witnesses; since the conduct of the elections is not in dispute.
In its judgment, the Tribunal rejected the evidence of wrong collation because the BVAS machines supplied by INEC were not operated to show the actual results. The Tribunal described the process as ‘dumping evidence before the court’. This is pathetic. The tribunal relied on the words of Justice Okoro to the effect that what is required to prove over-voting is to provide BVAS machine, the accreditation sheets, and result sheet. The Tribunal interprets this to mean that because the INEC’s official who presented the BVAS machine did not operate them, the court cannot presume about the evidence. The irony is that it was the court that ordered INEC tendered BVAS machines.
Why did the court not mandate the INEC to operate the machine before the court? Why should INEC’s errors of failure be to the detriment of the victim of its manipulation? It is sad that the tribunal gives INEC the opportunity to violate the law and go free and punish the electorates and the victims of the manipulation by INEC and the politicians.
What the Edo Governorship Tribunal did in effect is to validate an electoral coup executed by INEC. They have allowed INEC to hijack the constitutionally protected power of the citizens to elect their leaders; and have endorsed the deployment of a system that allows INEC handpick winners of electoral contests without recourse to the will of the people. This is not about PDP and APC. This is simply about INEC and how they have become the greatest single threat against our democracy today.
It is also about how election dispute adjudication is enabling INEC to continue to usurp the people’s power and play rough through crippling technicalities. If the judiciary allows the travesty that took place in Edo State on September 21, 2024, to stand, then we might as well all go home. 2027 and all other elections will be farcical, impotent rituals used by the ruling class to give the unilateral appointment of political officeholders the imprimatur of democratic responsibility.
This sort of judicial decision on election cases is problematic because they underline the weakness of electoral management system and electoral jurisprudence in Nigeria. If the electoral management process is done right, the judiciary will have little role to play. When it is done badly, and the judiciary too plays its role badly, it creates an incentive for the electoral management to continue to fluff its role in the electoral process at the behest of corrupt and desperate politicians. This vicious circle continues unless the appellate courts reassert its authority to force the electoral management body to do its job right under the law.
The judgement of the Edo Governorship Election Tribunal is a metaphor of how Nigeria has become an electoral autocracy no longer a democracy. Elections are a veneer on oligarchic grasp of power in defiance of what the people do or say.
Concluded.
Dr Amadi is the Director of Abuja School of Social and Political Thought.
