Resolving Osun governorship election dispute

As the nation awaits the outcome of the presidential election held last Saturday, the last may not have been heard about the legal tussle for the governorship of Osun State, following the decision of Governor Ademola Adeleke to go on appeal against the judgement of the state Election Petition Tribunal overturning his election and awarding the governorship to former Governor Gboyega Oyetola.

It is gratifying that normalcy has returned to Osun State after the violence that trailed the court annulment of the gubernatorial election held on July 16, 2022.

Nevertheless, the controversy surrounding the decision of the Election Petition Tribunal remains topical. But amidst the debate as to who is right and who is wrong, it is important for the citizens to allow the electoral process to be exhausted, rather than take the laws into their hands or recourse to violence.

Such an action will be anti-democratic and will likely reverse the little gains achieved so far in the country’s democratic journey. At this crucial time, citizens must not lose faith or confidence in the judiciary, as an arm of government with the constitutional duty to correct any wrongdoing, including misconduct of elections, in society. The separation of powers and the duties arising from it to the court are sacred and constitutionally guaranteed. No person or group should undermine those powers and duties by recourse to self-help.

Delivering the majority judgment, Justice Tetsea Kume had nullified the verdict of the Independent National Electoral Commission (INEC) for not being in substantial compliance with the Electoral Act, 2022. The commission, in compliance with Section 47(2) of the Electoral Act, used Bimodal Voter Accreditation System, a technological device, in the conduct of the election.

The BVAS is intended to improve the transparency of election results and increase public confidence in electoral outcomes. Also, the device is expected to address the issues of falsification of votes at polling units, falsification of the number of accredited voters, collation of false results, swapping of result sheets, forging of results sheets, snatching and destruction of result sheets, mutilation of false results and computational errors among others.

At the end of the voting exercise, INEC declared and returned the candidate of the Peoples Democratic Party (PDP), Ademola Adeleke, the winner of the election, prompting the All Progressive Party (APC) and its candidate, Oyetola, to complain to the Election Petition Tribunal alleging that the election was marred with over-voting largely in favour of PDP. The APC predicated its case on INEC’s BVAS Report dated July 27, 2022.

Countering this allegation, INEC had tendered a different BVAS Report dated August 22, 2022, which it claimed is the synchronised version.

According to the Commission’s lone witness, Mrs. Abimbola Olajungaye, a deputy director in the ICT Department, INEC had not synchronised the result of the election with the back-end server and the physical extraction of the data from the BVAS machines at the time the initial BVAS Report was issued.

However, she acknowledged that both reports are authentic and authored by her, and also admitted that there was over-voting in some polling units but insisted that the synchronised report supersedes the unsynchronised version.

Delivering verdict, the Tribunal observed that the various synchronised documents tendered by INEC rather than rhyme with each other were contradictory.

Not only did INEC fail to establish any nexus between the two BVAS Reports, but it also failed to withdraw the first report despite alleging that it was inchoate. Additionally, the Tribunal expressed doubt about the authenticity of the Synchronised BVAS Report considering that it was made after the commencement of the petition.

It specifically described the Synchronized Report as an afterthought and held that INEC’s conduct amounts to tampering with official records.

Aligning with the argument canvassed by APC, the Tribunal held that there was evidence that the total votes recorded in 744 polling units exceeded the total number of accredited voters therein, and in consequence, it cancelled the entire votes in the affected units and pronounced Oyetola the duly elected governor of the state having scored the majority of the lawful votes cast.

Arguably, the Tribunal’s evaluation appeared logical but its conclusion was considered in many quarters as overreaching, considering that it could have ordered a re-run in the affected centres. Juxtaposing the total cancelled votes between APC and PDP which is 172, 801 with the differential in the total valid votes by both parties which is 24,265, it is obvious that the cancelled votes substantially affected the final result of the whole election and declaration of a winner; a second election in the affected polling units would have been a fairer call.

Since INEC claimed to have encountered technical issues when transmitting the data in the BVAS machines to the backend server, the Tribunal could have invoked the provision of Section 47(3) of the Electoral Act by ordering a runoff election in the overriding interest of justice, equity and good conscience.

Moreover, APC, in its alternative relief, had prayed for a rerun on the ground that the election in its entirety was vitiated by INEC’s substantial non-compliance with the mandatory statutory requirements, and as such none of the candidates in the election could be validly returned as having won the election.

This position advocates a level playing field for all the candidates to yet again test their popularity at the polls, a position that the Tribunal has discountenanced, implying that the Tribunal may have simply visited the sin of INEC on PDP by handing victory to APC.

The violence that greeted the majority judgment is unfortunate and regressive of democracy development in Osun and indeed in the country.

Similarly, on a larger scale of the presidential election, Nigerians should exercise patience and not resort to violence. On their part, judges should always avert their minds to the fact that any decision taken in election matters directly affects the rights of Nigerians. Therefore, the interest of the people should be of paramount consideration.

Judicial officers should be circumspect and resist the temptation of elevating technicalities/procedural justice over merits/substantial justice because “when rules are mechanically applied to facts in a robot-like fashion, they result in decisions wanting in wisdom, jurisprudence, and philosophical depth.” Accordingly, judges should avoid the mechanical application of rules knowing full well that they preside over a ‘Court of Justice’ and not a ‘Court of Law’ per see.

Apparently, INEC still has a lot to learn about conducting free and fair elections that Nigerians, despite their sometimes rigid disposition, will find difficult to fault. The commission had enough time to prepare and conduct an election in Osun State that is devoid of the loopholes identified in Osun.

The commission has the exclusive responsibility to ensure that elections are organised strictly in accordance with the enabling laws; and to follow its laid down rules. It is inexcusable that it took INEC a whopping 10 days from the date of announcing the election result to produce a disputed BVAS Report, and 40 days to come up with a Synchronised BVAS Report in a single election.

Beyond verbal assurances, INEC has to demonstrate diligence, competence, and capability in organising free, fair, and transparent elections to restore public confidence and trust; and make it difficult for the court to overturn the normal outcome of the election.

The less the courts are called upon to review the commission’s decision, the better for democracy. The judiciary should make haste and hear the pending appeal on the governorship election; and thereby put the mind of Osun people to rest.