By Sunday Ani

Prior to the 2023 general elections in Nigeria, majority of the people had apparently lost interest in the electoral process. Many people were no longer interested in exercising their electoral franchise – the right to vote and be voted for in an election. Understandably, that was the situation because previous elections were never credible. Nigerians were literally never allowed to choose who their political leaders would be. Their collective will had always been thwarted by politicians in cahoots with some electoral officials and security agents, so most people had deliberately become apolitical.

But the 2023 poll presented a different picture. It came with much fanfare, hope and enthusiasm. There was a sign of positive change lurking on the political horizon. In fact, the wind of change was obvious. That was because in the build up to the election, long before even the political party primaries were conducted, the electoral umpire, the Independent National Electoral Commission (INEC) had given Nigerians hope of a new beginning.

The electoral body had spoken so much about the wonders of its new technology, the Bimodal Voter Verification System (BVAS). The INEC presented a larger than life picture of what the BVAS could do and consistently promised Nigerians at every turn as the process progressed that it was going to deploy the technology fully to ensure that the elections were free, fair and credible, and devoid of rancour and acrimony.

The then INEC National Commissioner in charge of Publicity and Voter Education, now retired, Festus Okoye, was everywhere preaching to Nigerians and assuring them that with the BVAS, they could go to sleep. He used every opportunity to drum it into the ears of Nigerians that the BVAS was a game changer, and that with it, Nigerians should go to the polls bearing in mind that their votes would count. He had quoted copiously a section of the Electoral Act which made the use of the BVAS mandatory just to convince doubting Thomases that the electoral body was prepared and willing to change the status quo and create a new song as far as credible election was concerned.

According to Okoye, Section 7 (2) of the Electoral Act 2022, makes it mandatory that to vote, the presiding officer shall use a smart card reader or any other technological device that may be prescribed by the Commission for the accreditation of voters to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.

He went further to emphatically state that the use of the BVAS was a mandatory provision of the law and not an option of charity. “The Commission does not have the discretion on whether to use the BVAS or not. The law says that we shall and must use the BVAS and this Commission is committed to using it because we spent so much time, energy and resources in putting it together,” he said.

He further revealed that the BVAS was developed by the Commission’s in-house engineers as a way of making sure that identity theft was minimized as much as possible at the polling units. As such, the Commission could not spend so much time and resources to develop BVAS and then throw it away. “It doesn’t make sense. So, the BVAS has come to stay, and we are going to continue to use it in all our elections,” he added.

On the electronic transmission of election results through the BVAS, Okoye equally quoted a section of the Electoral Act 2022 to back it up. He said: “the Commission will also transmit polling unit level results real time. The transmission of the polling unit level results is also a mandatory provision of the law. The Section 64(4) of the Electoral Act 2022 made it mandatory.”

He had always ended his presentations with the assurance that since the inclusion of the electronic transmission of results in the electoral law was a brainchild of the Commission as a means of ensuring credibility of the electoral process, that the Commission would never deviate from its usage. “We canvassed for the inclusion of BVAS and the electronic transmission of results in the Electoral Act. We therefore, have a responsibility to keep faith with our own innovations aimed at conducting transparent elections, driven and propelled by technology,” he would say.

However, moved and convinced by Okoye’s persistent assurances, Nigerians enthusiastically believed the INEC, hence the massive turn-out, like never before, during the voter registration exercise. The deluge of Nigerians, particularly the youth population that trooped to the various registration centres to get registered with the INEC in preparation to cast their votes during the election was unprecedented. Never in Nigeria’s chequered political history has the youths in particular, and Nigerians in general, shown such level of interest in the political process. But that happened because INEC introduced the BVAS, and going by what was expected of the new technology, Nigerians were confident that the era of foisting unpopular candidates on them was over. They were hopeful that their votes would count and their collective will, would be respected.

And in all honesty, the belief in many quarters is that BVAS was actually meant to change the narrative. That was why the Ninth Assembly worked assiduously to give Nigerians the 2022 Electoral Act so as to give a legal backing to its use in the 2023 elections. The lawmakers also believed so much in the wonders of the BVAS as they were told and they were determined to see it work in Nigeria.

Regrettably, however, the new technology did not function maximally in so many places during the elections. The machines became ineffective in many polling units across the country. And where they functioned well, the election results were credible.

Some people are of the opinion that the BVAS, just as the INEC promised Nigerians, was about to deliver credible elections, when some elements within the electoral body connived with some disgruntled politicians to circumvent it by bypassing the process and engaging in manual accreditation of voters. Following the abandonment of the BVAS in some polling units and resort to the use of manual voter accreditation, results were expectedly manipulated in favour of some candidates in so many areas. The move was in sharp contrast to what the BVAS was meant to achieve.

Be that as it may, those who engaged in such malfeasance knew that the game was over because the BVAS was determined to expose them at the election petition tribunal. The machines were fully protected from manipulations. So, all hopes were shifted to the tribunal, where Nigerians had thought that the sanctity of the BVAS would be upheld, so that going forward, the confidence and enthusiasm which Nigerians had already built around the electoral process in the country would be sustained. But, that hope was dashed.

The Tribunal dropped what is believed in many quarters as a bombshell that buried the BVAS. The death knell was driven into the heart of the BVAS technology by the tribunal judges and rendered useless the efforts of the Ninth National Assembly lawmakers.

After listening to the petitioners, the defendants and the INEC, and equally looking at the facts presented before them, the Presidential Election Petitions Court (PEPT) judges, contrary to what Okoye told Nigerians, said the Electoral Act 2022 made no provisions for the electronic transmission of election results.

Recall that on Wednesday last week, September 6 precisely, the five-man panel led by Justice Haruna Tsammani, said the only technological device that was mandatory for the INEC to use for the election was the BVAS.

Justice Tsammani emphatically stated that there was nothing in the INEC’s regulation to show that the BVAS must electronically transmit polling unit results. The Tribunal also held that the Commission’s Results Viewing Portal (IReV) was not a collation system, stressing that the judgment in the case of Oyetola Vs INEC clearly supports this. “There is no provision for the electronic transmission of election results in the Electoral Act 2022. It is at best optional,” Justice Tsammani submitted.

However, since the judgment was delivered, Nigerians have been looking at it vis-à-vis what the electoral umpire promised Nigerians before the elections. They are also weighing its consequences with regard to future elections. The questions on the lips of many are: If the decision of the PEPT judges is allowed to stand, will Nigerians, particularly the youths, have the interest to take part fully in future elections? Will Nigerians ever believe any information from the INEC, going forward?

In attempting to provide answers to the nagging questions, a legal practitioner and former National Chairman of the All Progressives Grand Alliance (APGA), Maxi Okwu, insisted that the PEPT judgement about the BVAs cannot stand. “Check it against that of the Osun State Governor, Ademola Adeleke which went on to the Supreme Court. I believe that at the Supreme Court, no matter what may be the Nigeria factor or public policy; the judgment will be tinkered with, if not taken down,” he said.

He noted that the judgement has distorted the country’s jurisprudence but expressed hope that going by the past judgment of the Supreme Court on a similar issue, the judgment would be taken down when it gets to the apex court.

He lamented that if the judgment was allowed to stay, it would definitely negatively affect the people’s participation in future elections. “The fact of the matter is that the judgment is a major dent on the improvement of our electoral process. If it is not taken down, nobody will come out in the next election; it will be left for the INEC and the courts to decide who will rule Nigeria. “So, I believe that for the interest of this country, the judgment will be adjusted at the Supreme Court to come back in line, especially those areas that seem to have gone contrary to what the Supreme Court has earlier said, which are known to be against the rules of precedent. So, I don’t think it will stand and that is why I want them to go to the Supreme Court. I think the Supreme Court will make necessary adjustments and restore the confidence of the people in the electoral process, otherwise, it is goodbye to genuine democracy in Nigeria,” he stated.

Also, former National President, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, said the loophole was created in the Electoral Act 2022, which did not expressly and clearly state that electronic transmission of election results from the polling units was legally mandatory.

He noted that in every election cycle in Nigeria, the legislature had managed to embark on legislative reforms to meet the exigencies of the time but lamented that in the 2023 election cycle, they left an important aspect of the electoral law like the electronic transmission of election results to the discretion of the INEC. “What I think was missing was to leave the adoption of technology; that is the IReV and uploading of results instantaneously to the discretion of the INEC. You will recall that, that aspect of the electoral process was found in the guidelines for the elections, which was produced by the INEC itself, and it was made desirable, not a mandatory provision and that became the lacuna.

“So, when the issue came up frontally because to be frank, that was the hope that the Nigerian people had. In fact, the youth who quadrupled the number of interested electorates believed that the adoption of that technology would secure and guarantee their votes. So, what should be done moving forward is to insist that the legislation should first be moved into the Electoral Act, if not part of the constitutional requirement, and made mandatory; the word in law is peremptory, in a way that they cannot have any escape route. In other words, they cannot manipulate or circumvent it. It is because it was left in such a nebulous state that the court was able to read and impute meanings into it. If it was clear, positive and direct as it ought to be that it shall be the responsibility of the INEC that after a certain time frame, all over the country, the results as collated from the polling units shall be transmitted to the INEC portal through BVAS. When you don’t do that, it creates room for the ambivalence that we are suffering now, and dashing the hope of the Nigerian people.

“We must also find a way of moderating people’s expectations. Election is a contest and somebody must win. So, all of these vibrations that you hear come from where people are very strong; if you slip the coin to the other end where they are weak, the argument is almost balanced. So, what Nigerian people witnessed was what they wanted in the election but when they got to the court, it became a different kettle of fish, where legal legalese became the order of the day,” he said.

On his part, a former member of the Katsina State House of Assembly, and chieftain of the All Progressives Congress (APC), Hon Yusuf Shehu, said INEC confused the PEPT judges into delivering the judgment about the BVAS.

He came down on the electoral body for deceiving Nigerians. “First and foremost, INEC just played on our intelligence because the assurance given to Nigerians in respect of the BVAS technology was not what happened during the election.

“Secondly, there is a contradiction between INEC and the tribunal about the BVAS. Before the election, INEC gave us the impression that the BVAS was very effective but unfortunately, the BVAS could not work effectively in many areas and they resorted to manual accreditation, and that was one of the factors that questioned the credibility of the elections. What the tribunal did was just the ‘Nigeria factor’ because INEC did not cooperate fully with the petitioners’ legal counsels. And that is why the judges were handicapped to decide on some issues.

“The INEC was quite aware that the BVAS had failed, and instead of providing all the necessary evidence that the petitioners and their witnesses could have used to validate their position on the ineffectiveness of the BVAS, INEC declined. That was what made the judges to be handicapped and they had no choice but to give the verdict they gave on the BVAS,” he stated.