BVAS, over-voting and Osun governorship tribunal verdict

“….. the defences of the respondents are plagued with fundamental mortal flaws highly irreconcilable and unreliable, incapable of defeating the credible evidence tendered by the petitioner in respect of 744 polling units where over voting has been established. The inference, we hereby draw from the facts established by the evidence on record is that the election conducted on July 16, 2022, was done in substantial non-compliance with the provisions of Electoral Act 2022 (Supra) and the extant regulations….”

 – Hon Justice T.A Kume, Chairman, Osun State Governorship Election Petition while delivering judgement on Friday, January 27, 2023

After barely sixty days at the helm of affairs as governor of Osun State, the Election Petition Tribunal sitting in Osogbo has nullified the election of Governor Ademola Adeleke. He is the second Osun governor to have had his election nullified. The first was former Governor Olagunsoye Oyinlola of the Peoples Democratic Party whose election was nullified by the Court of Appeal sitting in Ibadan on November 26, 2010. That judgement paved the way for Governor Rauf Aregbesola, then of the Action Congress of Nigeria, to be sworn in on November 27, 2010.

In a split decision of 2:1, the Hon. Justice T.A. Kume-led Osun State Governorship Election Petition Tribunal reversed the results of the July 16, 2022 governorship election and declared Gboyega Oyetola as the winner of the election. The tribunal directed the Independent National Electoral Commission to withdraw the certificate of return issued to Ademola Adeleke and his deputy, Kola Adewusi of the Peoples Democratic Party, both of whom had been sworn in. The panel led by Justice Terste Kume directed that the certificate of return should instead be issued to Oyetola of the All Progressives Congress. The tribunal held that the governorship election was not held in substantial compliance with the Electoral Act 2022 as it was characterised by over-voting. It said after deducting the excessive votes, the figure Adeleke polled came down to 290,666: lower than the 314,921 polled by Oyetola.

I have perused the majority judgement which nullified the election of Adeleke and I dare say, it was sound in law and logic. But before I come to the reason for my position, let me first say that the Nigerian judiciary now holds the aces regarding our elections, particularly in this Fourth Republic which began in 1999. Election Dispute Resolution is a global phenomenon meant to review and redress any act of electoral injustice that may be perpetrated either by the election umpire, that is, INEC or political parties. That is why barely three weeks to election, courts are still giving judgement about the rightful candidate of political parties in the forthcoming polls despite the fact that party primaries had been held since May / June 2022. It is this act of judicial activism that has brought “staggered election” into our political lexicon in Nigeria.

Recall that starting with the election of former Governor Peter Obi in the 2003 Anambra State governorship poll, the election tribunal nullified the victory of Governor Chris Ngige and declared Obi winner after over three years of legal fireworks. Since then, governorship elections in a total of eight states namely, Anambra, Bayelsa, Kogi, Osun, Ekiti, Ondo, Edo, and Imo have had to be held on separate days from that of general elections. Hence, on March 11, 2023, governorship elections will only hold in 28 of the 36 states. If Oyetola’s victory in Osun is upheld by appellate courts viz. Court of Appeal and the Supreme Court, then Oyetola’s second tenure will start to count from the day he is sworn in and that means the Osun governorship election timetable will be altered once again in accordance with provisions of Section 178(2) of the 1999 Constitution.

Why was Adeleke’s victory annulled? It was because of over-voting in 744 polling units. It is interesting to note that as a result of the 2022 Electoral Act, the rules of the game have changed drastically and substantially. Per adventure, the political gladiators in Osun State were unaware of the new provision in the law governing the election given the fact that the Act was barely four months old and not widely in circulation as of July 16, 2022 when the Osun governorship election was conducted. Under 53 (2) of the 2010 Electoral Act, as amended, over-voting is said to have happened where the number of votes is higher than the number of registered voters. Presiding Officer is empowered to void the votes of that polling unit. However, under the Electoral Act, 2022 Section 51 (2) says over-voting occurs “where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the presiding officer shall cancel the result of the election in that polling unit.”

Meanwhile, it is noteworthy that Section 47 (2) of the Act has given legal backing to the biometric accreditation process and as such rendered unnecessary the use of incident forms that desperate politicians previously induced INEC poll officials to use in order to aid their victory. The section giving legal teeth to the use of Bimodal Voter Accreditation System device says, “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.”

According to INEC Chairman, Professor Mahmood Yakubu, BVAS is used for the verification of the genuineness of the permanent voter cards and the fingerprint or facial authentication of voters during accreditation. “Secondly, it is to replace the Z-pad for uploading the polling unit results to the INEC result viewing portal in real-time on election day.” Thus, it is used for result transmission.  BVAS also acts as the INEC voter enrolment device during voter registration. Its usage has also eliminated the use of incident forms during accreditation on an election day.

What happened in Osun State that led to the nullification of Adeleke’s victory is the failure of inbuilt integrity checks by INEC staff deployed to conduct the election, particularly the presiding officers of the 744 polling units where the tribunal was able to establish over-voting. It will seem that the poll workers in these units were induced or coerced to commit the fraud. Otherwise, they should have cancelled the polling units’ results rather than transmitting the same to the INEC result viewing portal. Secondly, it is the lapse by the collation and returning officers of the respected centres where this electoral fraud took place. If they cross-checked the results as required by Section 64 of the Electoral Act 2022 especially, subsections 4, 5, 6, 7 and 8 they would have detected the fraud and cancelled the inflated results.

I hereby recommend the punishment of these returning and collation officers in accordance with the provision of Section 64(9) which says “returning officer or collation officer, as the case may be, commits an offence if he or she intentionally collates or announces a false result and is liable on conviction to a fine of N5,000,000 or imprisonment for a term of at least three years or both.”

INEC must learn the right lesson from the Osun election tribunal revelation and verdict. The commission should look into the advisory given by the tribunal which says, “Consequently, to forestall the manipulation of BVAS machines in the conduct of elections in Nigeria,  the 1st respondent (INEC), the presiding officers at the polling units, and other key staff of the 1st respondent, should have on the vest worn by them, during the conduct of elections, an electronic device embedded in the said vest, which will have audio, video and other data and information transmissible to a server domiciled with headquarters of the Police Force, NIGCOMSAT or the Office of National Security Adviser, independent of the 1st 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 cause of the use of BVAS machines at the polling unit level during the conduct of an election.”