By Prof. Michael Abiodun Oni
Department of Political Science and Public Administration,
As Nigerians in general and Osun state indigenes in particular are waiting anxiously for the judgment of the Osun gubernatorial tribunal, there are many questions to answer by the tribunal members under the leadership of Justice Tertsea Kume.
The questions, which ordinarily should be simple, clear, and give direction to the judgment, may be twisted to favor either party in dispute depending on the nature and character of the judges in contention in this case.To me these Judges are supposed to be intergrity packed, though there insunations recently which nobody can subsatiate.
There are, therefore, some technicalities that can allow corrupt judges to tilt the case in favor of either party in a dispute. This fear has made it difficult for any political analyst to accurately predict the outcome of the judgment on Friday.
In fact, the judges themselves will be confused themselves.This is due to the fact that the issues before the tribunal require knowledge of technology as well as a flair for logic.
However, there are some issues that will make the decision easier for the judges to reach.There is no chance of a split decision.
What are the issues for determination before the tribunal?
The issues were raised at the address stage by legal luminaries, who presented their addresses one after the other at the close of the case on January 13. It lasted for ten hours.
The first question to be answered is that of the sanctity, integrity, and inviolability of BVAS, as we were made to believe.
The further question on the Biometric Voters Accreditation System (BVAS), which is expected to capture the finger prints of voters with a high level of precision and accuracy but is found not to be so in this regard, is: will the judges in the tribunal believe the submissions that will be contrary to the instantaneous delivery of accredited votes to the INEC server or delayed for months before delivery in this case?
The BVAS capturing machine, on the other hand, is expected to be instantaneous.It is a replacement for Card.
For the integrity of BVAS, there must be agreement between the votes cast and the BVAS accredited voters.
The second question, which the tribunal will provide answers to on Friday, is why were there disparities between the figures recorded on the BVAS machine and the Form EC8A forms on the day of the election, and yet, INEC was in a hurry to declare the result very early on the second day? If the BVAS must have integrity, there must be accuracy between the votes cast and accredited voters on BVAS.
The position of the law is clear on the direct relationship between the two, that is, accredited voters and votes cast, as contains in Section 64(a) and (b) of the Electoral Act 2022.
Section 64(a) states that:
The number of accredited voters stated on the collated result is correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under Section 47(2) of this Act.
64(b): The votes stated on the collated results are correct and consistent with the votes or results recorded and transmitted directly from the polling units under section 60(4) of the Electoral Act of 2022.
The law does not state that it must take days to get to its destination, which is the INEC server.This could be like to Ioading a recharge card.lt is typically the norm, though there are a few exceptions.It will not take one week before one can load it.Not weeks as litigants made us to believe with BVAS.
Again, receiving alerts for transactions doesn’t take months, except in a few cases.
The logic the judges in the tribunal will test is the validity and reliability of BVAS when a report from the accredited voter using BVAS is still being disputed one week later.
As provided for in Section 51(1) of the Electoral Act, the consequence of disparities between accredited votes and votes cast is cancelation. This lack of relationship between the two (accredited voters and votes cast) is known as “over voting.”
51(2) states that where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in the polling unit, the presiding officer shall cancel the result of the election in that polling unit.
The question before the tribunal is: will the tribunal cancel the polling units identified by APC in the results issued to it because those are the results that established disparities between accredited voters and votes cast in the first instance?
The APC and Oyetola claimed and proved before the tribunal that over voting occurred in 749 polling units throughout the state.
The question the judges in the tribunal will provide answers to is, “Why the disparities?”
Logically and from the point of view of the law, the tribunal should ordinarily find the disparities objectionable and inconsistent with the Electoral Act of 2022.That is if there is to precedents elsewhere.
In this case, if there is agreement between the points of law and logic, then there will be a call for a rerun in the area where the results of the election will be cancelled.
The rerun may be anybody’s game.
Another question the tribunal will find an answer to is: why were there disparities among the results brought by INEC, APC, and PDP to argue their cases before the tribunal? INEC claimed disparities in 100 polling units , while PDP claimed six.That is results some months after the issuance of APC result by INEC.
The results were obtained in accordance with Sections 64(a) and (b) of the Electoral Code of 2022.The section states direct contact between the polling units and the INEC server. This means that there must be a relationship between accredited voters and the votes they cast.
If BVAS is truly an accreditation device designed to ensure accurate voter capture and the number of accredited voters tally with actual voters,the question then is, why should there be differences in results between days and times when APC, INEC, and PDP request reports, and why the results are not consistent?
The fourth question before the tribunal is: which of the results should be acceptable to and accepted by the tribunal?
In the first instance, all the parties before the tribunal had discredited the results of the gubernatorial election released on July 17.
The APC had declared the results of the gubernatorial on July 17 as dead on arrival, based on the results issued to it on July 27 by an INEC-recognized officer, Mrs. Oladunjoye.
Again, the outcome of the same election issued to INEC by INEC differed from the one issued to APC.Yet, it was signed by the same officer. Because of the disparities, the results issued by INEC to INEC were declared null and void APC.There were also disagreements between accredited voters and the results declared on BVAS. These occurred in 100 polling units.
Then the result presented by the PDP forensic expert was also problematic. According to the expert, even the forensic investigation conducted later, that is, by PDP and not INEC, revealed disparities between accredited voters and declared results in six polling units.
The tribunal’s question then is: are results released in advance countries where BVAS are used piecemeal?What happened in the recent Ekiti gubernatorial election where BVAS were deployed? So, what happened to the APC results?Is it bit by bit in the BVAS report?
If the issue of synronization raised by INEC and the PDP at the tribunal is accepted, the question is how long Nigerians will have to wait for litigants who want to challenge the results after the official release of the election results in 2023?.
Both the PDP and INEC argued that the APC and Oyetola had approached INEC too soon to collect true certified copy after one week of the conclusion of the and announcement of the election.The, how long will it take before we achieve agreement between accredited voters and declared results?
What the respondents in the election petition refer to as “synronization” is section 62(2) of the Electoral Act 2022, which states that:
The Commission shall compile, maintain, and update a register of election results known as the “National Electronic Register of Election Results” on a continuous basis, which shall be a distinct data base or repository of 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 section 62(2) is being referred to as synronization, which accounts for bit by bit issuance of results differentiation, then section 64(4) is more clearer:
A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the
number of accredited voters stated on the collated result is correct and consistent with the number of accredited voters recorded and transmitted directly from polling units in accordance with Section 47 of the Electoral Act 2022.
b) The votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units under Section 60(4) of the Act.
Section 64(5–9) states clearly how electoral disputes arising from accredited voters and votes cast can be reconciled, not either by the petitioners or respondents’ hired experts. Only the collation officer and returning officer are empowered to resolve it.
On the certificate, the understanding is that both the Electoral Act 22 and 1999 provided for ‘education up to a minimum of school certificate or it’s equivalent ‘.The two books didn’t even state that, the candidate should have one credit pass.
However, the angle from where APC was too technical and our Lordship will tell if truly the one Adeleke is holding and others are forged.
Expected Verdict from the Election Petition Tribunal.
With all of the flaws and technicalities in the election differentiation processes as argued by both petitioners and respondents, and in a sane climate, the tribunal will have no choice but to cancel the election results in the disputed areas, particularly in the 749 polling units identified in the INEC results issued to the APC, and order a fresh election.
In advanced countries, since the two parties benefited from overvoting, they must suffer for it.
As a result, the cancellation and ordering of a new election within 90 days, as provided in the Electoral Act 22, is predictable.
In an extreme case, Oyetola may be returned for being the first complainant whose result may be the authentic one. If the other results following those of APC and Oyetola are, by logical deduction regarded as mere and futile efforts to cover a track, then the tribunal may assume, by logical deduction, that, that is the authentic result.The other is a secondary thought.
However, anything can happen in Nigeria.One thing is certain: Osun may face another round of voting.
It will be difficult for any judge to rely on the thesis of synchronization as relied on by both INEC and the PDP because there is no provision for it in the Electoral Act of 2022.
Why will keep our fingers across, the security agents must be on the alert as either way it goes, it may endanger peace and security in the state.lt is also a case that will get to Supreme Court.