The recently concluded general election remains the freest and fairest since the advent of the present democratic adventure which started in 1999, especially with the introduction of BVAS machine.
"The election," in his opinion, "gave the electorates the decisive power to freely elect their leaders across all levels without manipulation.”
Just like Otitoju, I hold that the era of multiplicity of ballot stuffing with already thumb-printed ballot papers, hijacking of election materials, multiple registrations and multiple voting, inflation of election result figures at collation centers, has gone, and has gone for real with the introduction of the Bimodal Voter Accreditation System ( BVAS).
No genuine patriot is willing to return to the dark age, like in 2003, when total number of votes announced in the presidential election in Ogun State, for example, was more than the number of registered voters!
Even in 2015 when a technology, smart card reader, was introduced into our electoral system, cunning politicians still devised avenues to circumvent the system. In one of the election tribunal cases reported in that election circle, it was said that 820 voters cast their ballot in a polling unit but only 370 of them used the card reader: all others filled the incidence forms. Strangely, when the petitioner's witness testified that only 370 voters voted in the particular polling unit under litigation, the names of the remaining 450 were appropriately ticked on the voters register, incidence forms filled and ballot papers used on their behalf!
That was where the case developed a K-leg because at the Supreme Court, it was affirmed that the card reader was not legally binding, as it was just part of the guidelines (manual) of the election, and not integral part of the electoral act. So, in this case, as it was in many cases where petitioners were able to prove over voting, using the reports of card reader, none of them secured victory at the Supreme Court. Verdicts against Card Reader occurred in: (Nyesom v Peterside (Rivers], Emmanuel v Umana [Akwa Ibom] and Okereke v Umani [Ebonyi), Ikpeazu vs Otti [Abia]).
From the pronouncements of Their Lordships at the apex court, the supremacy of voters’ registers over card readers in matter relating to accreditation of voters was established.
In Okereke v Umani & 2 Ors, (SC.1004/2015. Delivered on 5th February, 2015), His Lordship, Nweze, JSC., states as follows:
"Indeed, since the Guidelines and Manual (supra), which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said card reader cannot, logically, depose or dethrone the Voters’ Register whose juridical roots are, firmly, embedded or entrenched in the self-same Electoral Act from which it (the Voter Register), directly, derives its sustenance and currency.”
However to remedy the inadequacies of our electoral law as to the use and legality of the technology for voter accreditation, the National Assembly, in 2022, made the use of technological device (BVAS device) mandatory for accreditation in our elections.
According to the new law, “To vote, the presiding officer shall use a smart card reader or any other technological device (in this case, BVAS) 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.”
This provision is absolute. The use of BVAS for accreditation is Alpha and Omega. It is primary. The voters register only plays an auxiliary role. It was on this basis the Osun State Governorship Election Petition Tribunal declared that the Candidate of the All Progressives Congress (APC) in the July 16 governorship election, Adegboyega Oyetola, obtained the highest number of lawful votes, and therefore was the true winner of the contest.
But in the judgement which sent jitters to Nigerians, especially those who earlier celebrated the adoption of BVAS as a Game Changer in our electoral process, the Appeal Court led by Justice M. L. Shuaibu held that the voters register still has primacy in the election, therefore the judgement of the Osun State Tribunal should be invalidated. In page 41 of the Appeal court judgment, Justice Shuaibu wrote,
“In the instant case, Exhibit BVR clearly is report from backend server of the 3rd respondent (INEC) and not physical evidence of accreditation and transmission of results in the disputed polling units. THIS IS PREMISED ON THE FACT THAT BVAS TRANSMISSIONS ARE NOT DONE INSTANTLY FROM THE POLLING UNITS (Emphasis is mine); furthermore, the tribunal was wrong to have admitted and acted on the said evidence in isolation of the voters register for the disputed polling units.”
Reading the above, one is tempting to ask: upon which law and judicial precedent did the Appeal Court justices anchor their verdict?
Oddly, it was anchored on the old regime of the previous electoral act--- the act that was in place before the 2022 Electoral Act. Let's quote part of the judicial precedent cited by the Court of Appeal:
“In Abubakar vs INEC (2020 12 NWLR (pt. 1737)37 @128, the Supreme Court had held that voters register is the foundation of any competent election, without the voters register, it will be difficult to determine the actual numbers of voters in an election. And if the number of registered voters is not known, the court cannot determine whether the numbers of votes cast at the election are more than the voters registered to vote. Thus to prove over voting, the petitioner must tender the voters register and Forms EC8A so as to work out the difference of excess votes easily”
Given the above judgement vis-a-vis the new electoral act upon which the Osun governornship election was conducted, it is clear that the judgement of the Court of Appeal is a misintepretation of the law. The judicial precedent cited by the lords at the penultimate court is not relevant and is totally in contradiction to the newly signed and operational electoral act.
The law at play in 2020, when the wise-men at the Supreme Court handed down the mentioned verdict, has been repealed; it is obsolete; so giving life to it now is patent abortion of justice. The 2022 electoral law, as encapsulated in Section 47 (2), gives complete power of accreditation to the BVAS device.
With the new law, a petitioner needs only two critical ingredients and valuable components to prove over-voting: the report of number of BVAS accredited voters officially issued by INEC and the Forms EC8A. No more, no less.
The two documentary materials were what Gboyega Oyetola and his party, APC, presented and demonstrated in the tribunal. The CTC of Forms EC8A pleaded and presented as exhibits at the tribunal contained all essential information to prove whether over voting occurred or not. It is on the Form EC8A that you will see entries entered into columns like number of ballot papers (trio of used, unused and spoilt ones), rejected ballots, valid votes, and more importantly, number of accredited voters.
Indeed, the introduction of BVAS to our electoral system is a game changer, because without it, the hope of proving legitimate ballots, as Oyetola did in the election tribunal, would have been slim, if not impossible.
The importance of the machine and its enactment in the electoral act also reflected in the just completed governorship election in Abia State.
On March 20, the media space was awash with the news of the INEC stopping collation of results in the governorship election in the state, citing reason of nonconformity and discrepancies in the number of accredited figures. Results from 16 out of 17 LGAs had already been released before the halt. LP scored 171,747 while PDP scored 79,477. However, the magical votes of 100,000 for PDP from Obingwa LG, the incumbent governor's LG, was what sparked people's reaction and forced the electoral umpire to review the result. The electoral body resorted to the backend server to retreive the number of accredited voters and it was confirmed that only 27,664 voters were accredited in the local government, as against the concocted figures of over 100,000 the PDP masterminds wanted to smuggle into the record.
Recall that similar experience played out between the same incumbent, Okezie Ikpeazu and Alex Otti in 2015 when Otti's lead margin was swallowed by 82,240 votes returned from the same Obingwa LG. Regrettably, there was no backend server to run to for succour. But in 2023, backend server saved him!
Unfortunately, this problem-solving technology is what the justices of the Court of Appeal dubbed inconsequential in the current case of Adeleke v Oyetola. Sigh.
Unless the Supreme Court cures the stunted Appeal judgement delivered March 24, the gains the new technology was designed to achieve by the drafters of the new electoral act are on the verge of collapse and our electoral system is bound to suffer the debilitating effect of it. First, it will take away, completely, the management and custody of election from INEC as the reservoir of data, information and documents used in the conduct of any election from the commission as the only and substantive document to be relied upon by the court will be a forensic report from non-statutory agent, and not the authentic BVAS report generated from the INEC backend server.
Second, the experience will take us back to the crude, fraudulent, stone age of doctoring voters register, ignoring advancement of technological innovation and relying on manual operations of results where pliable presiding officers would tick names of unaccredited voters to perpetuate fraud and cover their tracks. Because this would embolden political actors to subvert the procedures for a credible, transparent, free and fair election in Nigeria, like it was done in Osun state on July 16th 2022 where many voted without PVC and due accreditation and sponsors of the perfidy turned around to blackmail the judiciary to get a "kosolowo eee" victory.