Dr. Agbakoba, SAN.
By Olisa Agbakoba and Collins Okeke.
WITH less than one month to the general elections scheduled to hold on February 25, the decision of the Osun State Election Petitions Tribunal nullifying the July 16 governorship election, on the basis of over-voting even with the deployment of Bimodal Voters Accreditation System (BVAS) has raised concern amongst Nigerians. The tribunal in its Judgment invalidated the election of Governor Ademola Adeleke of the People’s Democratic Party (PDP) and declared the immediate past governor and All Progressives Congress (APC) candidate, Gboyega Oyetola as winner of the election.
Delivering its judgment, 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, directed the Independent National Electoral Commission (INEC) to withdraw the certificate of return issued to Adeleke and hand the certificate of return to Oyetola instead.
The decision of the tribunal was based on non compliance with two provisions of the Electoral Act 2022, that is Sections 47 (2) and Section 51 (2). Section 47 (2) of the Electoral Act 2022 provides 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.”
51 (2) of the Electoral Act 2022 provides that “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.”
Issues that stand out
Having read the Judgment of the tribunal, two issues stand out: The first is the capacity of INEC to organize free, fair, and credible elections; and the second is in relation to orders made by the Tribunal. Regarding INEC’s capacity, what this Judgment shows is that INEC did not deliver credible elections even with use of technology. Otherwise, how was over-voting possible, with Bimodal Voters Accreditation System (BVAS) and INEC Results Viewing (IReV) portal? The introduction of BVAS and the INEC Results Viewing (IReV) portal was to deal with over-voting but this failed.
There is also the issue of possible compromise of 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 INEC staff in these units were induced or coerced to commit fraud. Otherwise, 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 fraud and canceled the inflated results rather than transmit the results to the INEC result viewing portal.
In relation to orders made by the Tribunal, the learned tribunal was right when it ordered the cancellation of votes in areas where over-voting was established. This is in accordance with Section 51 (2) of the Electoral Act 2022. However, the decision of the tribunal to deduct excessive votes, tabulate the results and declare Oyetola winner of the election, seems to run counter to the provisions of the Electoral Act especially section 51 (2)&(3) which provides that “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.” (3) “Where the result of an election is canceled in accordance with subsection (2), there shall be no return for the election until another poll has taken place in the affected polling unit”. The combined reading of the sections strongly suggest that the appropriate order the Tribunal ought to have made is order fresh polls in the affected 744 polling units. Justice would have been best served if the tribunal ordered fresh polls in the affected areas as its decision disfranchises all voters that participated in the election from the affected areas who in no way should be held responsible for the overvoting or be made to bear responsibility of its occurence.
The 2023 general election is a crucial election for Nigeria. INEC must work very hard to ensure the process is free, fair, and credible. There must be strict compliance with provisions of the electoral act and INEC regulations. INEC must also deal decisively with corrupt practices and unethical practices of its staff as proven in the Osun governorship. Otherwise, it could undermine the entire electoral process. The Judiciary must resist the temptation to determine winners in an election. The power to determine who is elected into political office ought to be in the hands of the voters. Judicial recourse is perfectly allowed and preferable to extra-judicial measures to redress perceived electoral errors. But this should be an exceptional option taken to rectify an electoral impropriety of some sort. Making a habit of bypassing elections as a means of determining elected officials due to electoral irregularities, and forcing the judiciary to constantly have to annul elections doesn’t bode well for Nigeria’s fledgling democracy. The current trend could cause a loss of confidence by the electorate and embolden politicians to forego the polls and instead try to “win” elections by influencing the judiciary in underhand ways.
Dr. Olisa Agbakoba, SAN is a former NBA president, and Collins Okeke is a senior partner with OAL, (Olisa Agbakoba Legal).
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