Tribunal verdict in Osun and what it portends for 2023 Elections
• BVAS Exposed Over-voting, Criticism Unnecessary — Former INEC Legal Adviser
• Electoral Umpire Has Questions To Answer — Ex-INEC official
• Any Attempt To Derail 2023 Polls Will Be Resisted — Rafsanjani
With less than one month to the general elections scheduled to hold on February 25, the verdict of the Osun State Election Petitions Tribunal on Friday nullifying the July 16 governorship election on the basis of over-voting even with the deployment of Bimodal Voters Accreditation System (BVAS) is raising concerns in the polity.
The tribunal in its ruling had voided the election of Governor Ademola Adeleke of the Peoples Democratic Party (PDP) and declared the immediate past governor and All Progressives Congress (APC) candidate, Gboyega Oyetola as the winner of the election.
Delivering its judgement, the tribunal led by Justice Terste Kume held that the governorship election was characterized by over-voting, adding that after deducting the excessive votes, Oyetola’s figures rose to 314, 921, while Adeleke’s came down to 290, 266.
It, therefore, instructed the Independent National Electoral Commission (INEC) to withdraw the certificate of return issued to Adeleke and his deputy, Kola Adewusi and directed that the certificate of return be issued to Oyetola instead.
Recall that Adeleke had defeated Oyetola in the July 16, 2022 poll in the state. INEC declared Adeleke the winner after polling 403,371 against Oyetola’s 375,027 votes.
Though there were 13 other candidates in the Osun governorship election, it was dominated by Adeleke and Oyetola. The PDP candidate was victorious in 17 of the 30 Local Government Areas (LGAs) in the state governorship poll. The remaining 13 LGAs were, however, taken by Oyetola of the APC.
Not satisfied with the declaration by the electoral umpire, Oyetola had filed a petition at the tribunal challenging the declaration of Adeleke as the winner of the election. He asked the tribunal to nullify the election, hinging his case on alleged rigging by over-voting, infractions in some polling units, and the authenticity of the West African Examination Council (WAEC) certificate presented by the PDP candidate among other grounds.
In the judgement on Friday, the tribunal held that INEC did not comply substantially with the constitution and the provisions of the Electoral Act.
Justice Kume said the petitioners challenged results of election in 10 local government areas, which are Ede North, Ede South, Egbedore, Ejigbo, Ila, Ilesa west, Irepodun, Obokun, Olorunda and Osogbo.
He added that the petitioners drew the attention of the tribunal to the secondary school certificate of Adeleke which carries 1981 while Osun State was not in existence.
Ruling on the forgery, the court said Adeleke’s other qualifications have qualified him to contest for the post of governor.
Though, this is not the first time a governorship election was nullified by an election tribunal, but the case of Osun is generating controversy because it is likely to prove the efficacy or otherwise of the device INEC and Nigerians rely on to conduct a free, fair and credible polls starting from next month.
Sections 47(2) of the 2022 Electoral Act says that to vote, the presiding officer shall use the smart card reader or any other technological device that maybe prescribed by the Commission for the accreditation of voters to “verify, authenticate the intending voter in the manner prescribed by the Commission.”
Before the Osun matter, many politicians have in time past expressed reservations on the use of BVAS for the 2023 elections, with some insisting that over-reliance on the BVAS machines by INEC is still a major source of concern for parties, voters and stakeholders.
Apart from the issue of having the necessary network to transmit results, the major concern is whether the BVAS can be manipulated by desperate politicians planning to rig the elections.
Recall that at a point, the National Chairman of the APC, Senator Abdullahi Adamu, when he received the delegation from the Commonwealth on the 2023 General Election at the party’s secretariat raised concerns about the device. Adamu told his guests that he doubted if the introduction of BVAS for transmission of election in real time would produce a fair result for the nation in the 2023 elections.
But INEC has continued to allay such fear, maintaining that with BVAS and the new Electoral Act, rigging and manipulation of the electoral process was no longer possible.
“With the Electoral Act 2022, we have murdered rigging of elections in this country, and we have buried it. I want to tell you with all ears of authority, that that was the greatest thing that has happened to this country,” INEC Chairman, Prof. Mahmood Yakubu said at a breakfast seminar, organised by Christian Men’s Fellowship, St. James’ Anglican Church, Asokoro, in Abuja.
Friday’s verdict on the Osun governorship election has, however, exhumed the debate on the efficacy of the BVAS technology. A thorough analysis of the judgement exposed the fact that perhaps, desperate politicians might have found a loophole in manipulating the process.
While delivering the judgement, Justice Kume insisted that the election was marred by over-voting. The tribunal referred to the statement of admission of “seemingly over-voting” made by an INEC official who appeared before the tribunal as respondent’s witness.
He said the defence by the respondents on the over-voting was unreliable and blamed INEC for producing contradictory results, stating that it put a question mark on the readiness of the Commission to conduct credible elections.
Justice Kume said the petitioners had proven the allegations of over-voting beyond reasonable doubt and it was the duty of the court to deduct the invalid votes from the lawful votes cast at the election.After deducting the unlawful votes, the tribunal declared that Oyetola of the APC scored 314,931 votes, while Adeleke scored 290,266 votes.
According to the panel, none of the witnesses of the respondents disputed the evidence of the petitioners as regards over voting on the BVAS report, just as the INEC did not withdraw the BVAS report issued to the petitioners.
The panel further ruled that the arguments of the respondents that the BVAS reports issued to the petitioners was “unsynchronized and inchoate” was misconceived, as such claims were not shown on the report.
Justice Kume said, “In other words, the defences of the respondents are taint with fundamental flaws; they are irreconcilable and unreliable, incapable of defeating the credible evidence tendered by the petitioners in respect of the 744 polling units where over-voting has been established.
“The inference we hereby draw from the fact established by the evidence and record is that the election conducted on the 16th day of July, 2022 was done in substantial non-compliance with the provisions of the Electoral Act and extant regulations.
“Moreover, exhibit BVR has not been withdrawn by the first respondent, who made and issued it. The petitioners relied on exhibit BVR in maintaining this petition.
“Similarly, the exhibit tendered by the respondents after exhibit BVR submitted by learned counsel to the petitioners were thought of after the declaration of result on the 17th day of July, 2022.
“The said conduct of the respondents, especially the first respondent, amounts to tampering with official records. The conduct of the first respondent in the said election under consideration has produced multiple accusation reports, contrary to vote declaration to conduct of free, fair and credible elections on the basis of one man or woman with one vote.
On how to forestall a manipulation of BVAS machines in the conduct of elections in Nigeria, the panel urged INEC, presiding officers at the polling units and other key officers of INEC to act on the vest worn by them.
“During the conduct of elections, an electronic device embedded in a safe vest, which would have helped you to collect data and information transmittable to a server domiciled either in the headquarters of the Nigeria Police Force, NIGCOMSAT, the National Secretary Adviser, independent of the first respondent.
“The data stored at the server in any of the said offices will be a resource material for investigation and possible prosecution of any infraction that may occur in the use of the BVAS in the polling units during the conduct of elections,” the justice said.
But in a minority decision, a member of the panel, Justice A. Ogbuli, dismissed Oyetola’s petition, saying the primary source of data on Election Day, which were the BVAS machines, should have been relied on by the panel instead of BVAS reports brought by the petitioners.
He also held that the report of physical inspection of the BVAS machines admitted by the panel was not challenged by the petitioners.
He also said the petitioners did not say that the entries on the BVAS machines were not the same as the entries in exhibit RWC, which was the report of the forensic inspection of the machines.
Justice Ogbuli said, “Exhibit RWC is a document made from the time resources, which are the machines used on the Election Day.
“The exhibit on RWC is in existence and was there on the machine on the date of election. Section 64 subsections 4,5 and 6 of the Electoral Act recognised BVAS machines as a key material to be used in collation of result and in resolution of any dispute arising there from.
“In view of the following, I hold that exhibit BVR is a product of inadequacies and cannot be the best evidence for the determination of the accurate number of accredited voters for the July 16, 2022 election. The same is true of exhibit RBVR. The best evidence in that regard is RBVL 1-119 down to RBVL 1-59 used in the polling units under contest and I so hold.”
Former National Commissioner, Independent National Electoral Commission (INEC), Prof. Lai Olurode, in a chat with the The Guardian believed that the tribunal judgement on the Osun governorship election cast aspersions and created doubt in the mind of an average person about the efficacy, effectiveness and the trust that has been reposed in the role of technology in the nation’s elections.
He observed that the introduction of technological improvements and innovations was supposed to screen off elements of aberrations and discretion in the electoral system.
According to him, with such verdict coming less than a month to the election, INEC must do all within its powers to regain public confidence in the use of BVAS for the elections.
He also said the judgement was a pointer that those expressing reservations about the use of BVAS in the forthcoming elections should not be vilified.
He warned that if necessary steps were not taken to address the issues raised by the court, and the same scenario plays out at the presidential poll next month, the nation might be thrown into a total fiasco.
Olurode said: “Though, we don’t know that the final decisions would be when the case goes on appeal but even raising doubt at this level is not a good thing. I was one of those who gave kudos to INEC when the Osun governorship election was concluded, saying that the elections went well but now, we see that the election has been flawed. Doubts have been raised and we are just a less than a month to the presidential election.
“I hope this doesn’t happen at the presidential level because if same scenario repeats itself, it can cause total fiasco. It is because it happened at the level of the state and there is a window for the aggrieved party to go on appeal. Otherwise, you could just imagine what could had happened if doubts were cast about a national election without all the sophistication of peaceful coexistence.”
While stressing the need for INEC to re-examine its methodology, the professor of sociology expressed the possibility that the basis in which the tribunal gave its judgement might be caused by poorly trained INEC officials.
He added: “It is possible that there were poll officials who were not well trained, so INEC should now rejig its training methodology. This cause for re-examination for INEC to do some internal quality control measures to know what is really is wrong.
“We shouldn’t also forget that these officials are human being, they might have made mistakes or might not. But whatever it is, this raises issues about the 2023 presidential elections.
“For now, INEC can’t not make any statement on the issue because that would be premature as the entire legal machinery has not been exhausted. I think INEC should tarry a little because that would amount swaying the opinion of the court on its side.”
Olurode, however, expressed concern about the entire justice and electoral system, noting that a situation where the court is allowed to decide for citizens in terms of choosing leaders would not augur well for the country.
His words: “What we should be worried about is that though it is good to give a role to the court but how I wish the court has no role so that INEC can decide rightly. However, if INEC can’t decide rightly and we now push the decision of over 700,000 electorate to the hands of three persons who perhaps didn’t partake in the election, honestly, it calls for an overhaul of the entire electoral process.
“If at the end, this judgement is upheld at the higher court, it would raise fundamental issues. Of course, you cannot equate three persons to 700,000 people but of course, the decision of thousands of people is now in question. Either the procedures was flawed which means those who are crying are not crying wolf about BVAS.
“But again, this is giving INEC an opportunity to know what went wrong. All they need to look at is who are the officials at these polling units, whether they are adhoc or permanent staff and bring them to book. If there is over-voting, it means somebody somewhere has played some games.
“And this is what technology was meant to prevent. It used to be in the hands of presiding officer but now, how could there be more vote than what was accredited, it means that somebody somewhere stuffed the ballot box.
“At the end, I will want INEC to re-examine its entire methodology for Osun election and to reassure Nigerians that methodology for the election is credible. We can’t go into a presidential election if this one is upheld at the appeal court.
“It also shows that there are challenges which means that INEC must listen to those raising issues about its preparation. Though it is not the final court, but we should be worried that we are outsourcing the role of the electorate to few people. There is no way we can equate the decision of 700,000 voters to three persons. In all, it is an invitation for INEC that if they are sleeping, they should wake up from their slumber. We should be knocking hard on the door of INEC.
“We have to wait. We shouldn’t pass judgement until it is all over. We should wish the country well, but at least, if there are questions mark or issue, they should be clarified. I am not sure that case would be dispose off before the general elections. So, therefore, INEC would have to study the judgement, look at it very well and if there are some of its staff who had erred, they can take some temporary measures to counter some of these electoral fraudsters if they existed anywhere at all, but I think there are fundamental issues about electoral manipulation.”
A former head of publicity, INEC, Andy Ezeani, also re-echoed Olurode’s sentiment. Ezeani maintained that though the development called for concern, Nigerians should have confident in the ability of INEC to deliver a credible election.
Noting that the BVAS has continually been improved on, he however, expressed shock on how the issue of “over-voting came up in an election where BVAS was used.”
According to him, the device had been deployed in various elections without such issues coming up, adding that the electoral umpire have a lot of explanation to provide if indeed there was over-voting.
He stated: “Though, I don’t have the copy of the judgement yet to know the actual details, but there is something a little bit surprising there because the use of BVAS makes it extremely difficult for you to have over-voting as only those accredited by BVAS are allowed to vote. There are few things I still want to understand, especially how there was over-voting in an election where BVAS was used.
“This is because BVAS uses the number of people that are registered in a particular polling unit and it is only those whose names are there in that polling units that will be allowed to vote. It is programmed to do so. If we are now talking of having over-voting in an area, it raises a lot of questions and that means something actually went wrong that needs to be looked into by the commission.
“I also want to believe that before the verdict, they had reconciled the proper results from the commission. The Osun governorship election is not the first that the BVAS was used. BVAS have been deployed in Edo, Ondo, Anambra and some other places, but the question of now having over-voting where you have the BVAS which is having an upper-limit of those who are registered in an area leaves a lot of questions that needs to be reconciled with this court verdict. The result they used to justify over-voting, is it exactly the result of the commission? If it is, then there is cause to worry. So there is some reconciliation that needs to be done.
“I have heard that Adeleke said he would be appealing the judgement which is a natural thing. I am expecting that going to that appeal will be on the basis of presenting the commission results which if it varies in what the tribunal has giving, he (Adeleke) would be talking of travesty of justice. But if indeed that after calculation, and going by the number of the people that BVAS accredited, there was more voting, then obviously the commission has a lot of things to explain about that and then in which case, the man who went to Tribunal has a solid case.
On the way out of the rigmarole, Ezeani observed that INEC is in a very tight situation and that the BVAS has put the commission in the eye of the storm.
He explained: “This is because immediately Adeleke files an appeal, the matter have become subjudice again and the commission cannot afford to see itself to be given the judgement above the judgement. Unfortunately, the commission has to keep calm and everybody would have to wait till after the elections.
“However, the main way the commission can respond effectively now is by responding through tightening and looking through the BVAS again to assure and reassure the people that there is no basis for fear. So, if the commission comes out to say in preparing for the 2023 election, we are so sure of the BVAS and that there won’t be room for any manipulation, that would be an indirect way to respond to the matter.”
Former director, legal service, INEC, Oluwole Osaze-Uzzi, however, described the criticisms against the BVAS after the court verdict as unfair.
According to him, Nigerians should rather thanked the BVAS for exposing over-voting if indeed there was one.
Osaze-Uzzi, who also served as the director of Voter Education and Publicity, INEC, said the device was meant to expose irregularities and ensure that the old way of doing things and rigging elections was eliminated.
He stated: “Though it is difficult for someone to comment on the matter until one gets the full details of the judgement. I have not read the details of judgement, but the only thing I can say is that to me it is a validation of BVAS. I have seen online reports where people are criticizing BVAS but Nigerians should be aware that it is the BVAS that exposed that there have been over-voting. This is because where the total number of votes exceed the total number of people accredited by the BVAS, then you have to nullify the election in that area. So, I will like to know exactly on what basis the judgement is given.
“When you have the number of votes given to people exceeding the number of accredited voters, it simply means there is something wrong somewhere in that particular polling units. But we still need to wait for the full details of the judgement. It is the BVAS that exposed that there is over-voting in the sense that the total number of vote cast must be equal to the number accredited. Therefore, anybody trying to introduce the old way of doing things will be exposed by the BVAS.”
For the chairman of Transition Monitoring Group (TMG), an election think-tank organisation, Auwal Rafsanjani, the tribunal judgement on the Osun governorship election was part of calculated attempt by politicians to discredit the use of BVAS in conducting the 2023 election.
Rafsanjani, however, called on INEC to conduct more integrity test on the device and ensure that desperate politicians who don’t want the device to be deployed are not given the opportunity to abuse the process.
His words: “We are very much concerned with this emerging development. It is only INEC that is saddled with the responsibility of pronouncing a winner. I think INEC needs to do further analysis on what happened. As far as I am concerned, with the BVAS, we actually don’t expect this kind of thing to happen. However, if the party that claimed to have won the election based their analysis on the usual ballot paper printing, then, we need to verify this to avoid any possibility of people cooking up figures.
“We all saw that Osun election was conducted in an orderly manner devoid of the usual tactic of rigging. This, therefore, should be a thing of concern that people can wake up and cook up figure if that may be the cause.
“I think there is a calculated attempt to derail the 2023 general elections and discredit the BVAS. TMG had exposed the plot to discredit the BVAS technology by some politicians so they could return to the old rigging mechanism. We won’t allow anybody to derail us and useless the collective efforts we all made to ensure that we have electronic vote.
“Though, I am calling on INEC to cross-check the facts, but we know that is a calculated attempt by politicians to discredit the use of BVAS in conducting the 2023 election which we won’t allow to happen. Some of these politicians have openly rejected BVAS, so we are not surprised with the development.
“INEC need to continue to do the needful so that there won’t be room for anybody to abuse the process. We are observing and we must all ensure that all votes count.”