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From Godwin Tsa, Abuja
The Osun State Governorship Election Petition Tribunal (OSGEPT) last Friday took the nation by surprise, when it nullified the election of Governor Ademola Adeleke of the Peoples Democratic Party(PDP), on account of over-voting.
In a split decision of two-to- one, the member panel comprising Justices Tertsea Kume, P. Agbuli and Rabi Bashir held that the July 16, 2022 poll was done in substantial non-compliance with the provisions of the Electoral Acts and extant regulations, as there was over-voting in 744 Polling Units across 10 Local Government Areas of the state.
In August 2022, the petitioner, Gboyega Oyetola, former Governor of Osun State and his All Progressives Congress, APC, political platform petitioned the tribunal to challenge the victory of Adeleke on the grounds that Adeleke did not qualify to contest the election and that there was over-voting in 749 Polling Units across 10 LGA of the state.
Delivering judgment, the tribunal resolved the issue of qualification in favour of Adeleke but annulled his election on the ground that he did not score the majority of lawful votes during the election, after making deductions from the votes believed to be in excess of the total number of votes casts.
“We find as a fact that the over-voting occurred in the election conducted on the 16th day of July 2022 in the manner stated in the table in Paragraph 6:19 of the petitioner’s final written address already reproduced in this judgment. The duty of the tribunal is to deduct the said invalid votes from the lawful votes of the 1st petitioner and the 1st respondent to determine who have the majority of lawful votes at the said electron.
“For the sake of emphasis, the total lawful votes cast for each of the candidates after the said deduction of invalid votes is 314, 931 for the 1st petitioner and 290,266 votes for the 2nd respondent.
“The 2nd respondent did not score a majority of lawful votes cast for the election. The declaration and return are hereby declared null and void.”
Consequently, the tribunal ordered the Independent National Electoral Commission, INEC, to withdraw the certificate of return issued to Adeleke and issue a fresh one to Oyetola as the duly elected Governor of Osun State.
In arriving at its majority decision, the tribunal noted that there were contradictions in exhibits -BVR tendered before it.
It accused the electoral umpire, INEC, of manipulation and tampering with official records.
“Moreover, exhibit BVR has not been withdrawn by the 1st respondent (INEC) who made and issued it.
“The exhibit tendered by the respondents after exhibit BVR submitted by learned counsel to the petitioners was thought of after the declaration of the result on the 17th day of July, 2022.
“The said conduct of the respondents, especially the 1st respondent (INEC) amounts to tampering with official records. The conduct of the 1st respondent in the said election under consideration has produced multiple accusation reports, contrary to the declaration by the electoral body to conduct a free, fair and credible elections on the basis of one man or woman with one vote.
The tribunal said there were credible evidence that the Biomodal Verification Accreditation System(BVAS), was manipulated during the election.
“Consequently, to forestall manipulations of BVAS machines in the conduct of elections in Nigeria by the 1st respondent, the presiding officers of the 1st respondent should act on the Votes won by them.”
The above findings by the tribunal was an indictment on the part of INEC as it raises serious concern about the accuracy of the much touted BVAS Machines.
The BVAS is a technology device used to identify and accredit voters’ finger prints and facial recognition before voting. The device is also used for capturing images of the Polling Unit result sheet (Form EC8A) and uploading the image of the result sheet online.
The disputed Osun State governorship election was conducted against the background of the new Electoral law and innovations introduced by INEC, to enhance electoral integrity and inspire public confidence in the electoral process.
The BVAS and INEC Election Result Viewing Portal (IReV) are two technological innovations under section 47 (2) of the new Electoral Act, celebrated for enhancing the transparency of election results and boosting public trust in the electoral outcomes.
Over times, the INEC asserts that these technologies are addressing the 10 most pervasive weaknesses in the nation’s election result management process which include falsification of votes at Pulling Units, falsification of number of accredited voters, collation of false results, mutilation of results and computational errors, swapping of results sheets, forging of results sheets, snatching and destruction of results sheets, obtaining declaration and return involuntarily, making declaration and return while results collation is still in progress and poor record keeping.
Indeed, this new Act gave total backing to the Independent National Electoral Commission to deploy technology for all the five pillars of the electoral process namely: Voters Registration (section 9(2), Voter Authentication (section 47(2), Balloting (section 41(1), Vote Collation (section 60(5) and Vote Transmission (section 50(2).
Section 62 (2) of the Electoral Act 2022 has provided for the National Electronic Register of Election Results. It states thus: “The Commission shall compile, maintain and update, on a continuous basis, a register of election results to be known as the National Electronic Register of Election Results which
shall be a distinct database or repository of polling unit by polling unit results, including collated election results, of each election conducted by the Commission in the Federation, and the Register of Election Results shall be kept in electronic format by the Commission at its national headquarters.
If all of these were in place, the questions that come to mind are: why was an election conducted under this technology-driven voting process be characterized by over-voting? Is it possible that some dates were inputted ahead of accreditation and voting?
The fact that two separate reports were generated by the same electoral officials is a clear confirmation that the BVAS could easily be manipulated, thus the efficacy of the BVAS comes to question.
On July 18, 2022, Oyetola and his political party- the APC, reportedly applied and obtained the Certified True Copy(CTC) of the BVAS report of the July 16 election.
INEC had on July 29, 2022, issued the CTC of the BVAS report to them after the statutory payments were made.
Upon the acquisition of the BVAS reports, they challenged the result of the election in 749 polling units, on the grounds of over-voting they claimed took place in those polling units.
INEC was alleged to have tampered with the contents of the original BVAS report, having discovered some inconsistencies between the figures recorded as accredited voters on EC8A (result sheets), to protect the mandate that was given to Adeleke and PDP, by issuing fresh CTC to them.
Speaking on the development, an Abuja-based legal practitioner, P. D. Pius declared it as worrisome.
“What is worrisome about the case and I see real danger for 2023 elections is the credibility of INEC to handle the BVAS machine report of accredited voters. In this case, INEC certified 3 different and inconsistent reports of BVAS machine accreditation thus: Exhibit BVR relied upon by the Petitioners; Exhibit R. BVR relied upon by the Respondents and Exhibit RWC relied upon by Justice B. A. Ogbuli who delivered the dissenting judgment.
“All the 3 exhibits contain different reports of the actual number of accredited voters as purportedly recorded by BVAS for the Osun Governorship election of July 16, 2022. All the three reports have inconsistent figures with each other. All the three were certified by INEC as correct. Just imagine”
The majority judgment relied on the report of the BVR to nullify the votes of Adeleke in 744 polling units. This report was generated earlier and almost immediately after the election on July 27, 2023 about 11 days after the election. The Tribunal found this closer to the truth.
R. BVR was issued by INEC on 22nd August 2022 over one month after the election and when the case was already in Court. This was the report of accreditation relied upon by the Respondents.
The last report, RWC was also got about two months after the election. The facts of this case make nonsense of the assurance by INEC that the record of accredited voters by BVAS machine will be available and complete in real-time on the exact day of the election.
There will be nothing credible about 2023 elections if the total number of accredited voters by BVAS machine will not be complete on the day of election and we have to wait for a whole two months or more before there will be “synchronization” with the back-end server. Synchronization and back end server will be most invoked in 2023 election petitions. For many, it is better to get one’s legal team ready.
