BVAS, Overvote and Ruling of the Osun Governor’s Tribunal

“…..respondents’ defenses are plagued by fundamental deadly flaws that are highly inconsistent and unreliable, unable to refute the credible evidence presented by the petitioner regarding 744 polling stations where overvotes have been recorded. The inference we hereby draw from the facts established by the evidence on record is that the elections on July 16, 2022 took place in substantial contravention of the provisions of the Electoral Act 2022 (Supra) and existing regulations….”

– Hon Justice TA Kume, Chairman, Osun State Governorship Election Petition while rendering judgment on Friday, January 27, 2023

After barely 60 days as governor of Osun State, the Election Commission in Osogbo has nullified the election of Governor Ademola Adeleke. He is the second Osun governor to have his election annulled. The first was former Governor Olagunsoye Oyinlola of the People’s Democratic Party, whose election was annulled on 26 November 2010 by the Court of Appeal in Ibadan. sworn in on November 27, 2010.

In a 2:1 split decision, the Hon. The Justice TA Kume-led Osun State Governorship Election Petition Tribunal reversed the results of the July 16, 2022 gubernatorial election and declared Gboyega Oyetola the winner of the election. The tribunal ordered the Independent National Election Commission to withdraw the certificate of return issued to Ademola Adeleke and his deputy, Kola Adewusi of the People’s Democratic Party, both of whom had been sworn in. The panel headed by Judge Terste Kume indicated that the certificate of return should instead be issued to Oyetola of the All Progressives Congress. The tribunal ruled that the election to the governorship had not been conducted in substantial compliance with the 2022 Electoral Act as it was marked by overvotes. It said that after deducting the outrageous votes, the number polled by Adeleke fell to 290,666: lower than the 314,921 polled by Oyetola.

I read the majority verdict that overturned Adeleke’s election and I dare say it was lawful and logical. But before I get to the rationale for my position, let me first say that the Nigerian judiciary now holds the trumps regarding our elections, particularly in this Fourth Republic that began in 1999. Electoral Dispute Resolution is a global phenomenon that is intended is to any act of electoral injustice that may be committed by the election arbitrator i.e. INEC or political parties. That is why barely three weeks until the election, courts are still passing judgment on the rightful candidate of political parties in the upcoming polls, despite the fact that party elections have been held since May/June 2022. It is this act of judicial activism that has led to “staggered election” in our political lexicon in Nigeria.

Recall that, beginning with the election of former Governor Peter Obi in the 2003 Anambra State governorship poll, the electoral tribunal overturned Governor Chris Ngige’s victory and declared Obi the winner after more than three years of legal fireworks. Since then, gubernatorial elections in a total of eight states, namely Anambra, Bayelsa, Kogi, Osun, Ekiti, Ondo, Edo and Imo, have had to be held on days other than those of general elections. Therefore, on March 11, 2023, only gubernatorial elections will be held in 28 of the 36 states. If Oyetola’s victory in Osun is upheld by appeals courts viz. Court of Appeals and the Supreme Court, then Oyetola’s second term will start counting from the day he is sworn in and that means that the timetable for the election of the governorship of Osun will be changed again in accordance with the provisions of Article 178(2) , of the 1999 Constitution.

Why was Adeleke’s win annulled? It was because of over-voting at 744 polling stations. Interestingly, as a result of the Electoral Act 2022, the rules of the game have changed radically and substantially. As per the adventure, the political gladiators in Osun state were not aware of the new provision in the law regulating elections, given that the law was barely four months old and was not in general circulation on July 16, 2022, when the election for the governorship of Osun was held. . Under Section 53(2) of the Electoral Act of 2010, as amended, there would have been an overvote where the number of votes exceeded the number of registered voters. The chairman is authorized to declare the votes of that polling station invalid. However, according to the Electoral Act, Article 51(2) of 2022, it is voted on: “when the number of votes cast in an election in a polling station exceeds the number of accredited voters in that polling station, the presiding officer shall cancel the result of the election in that polling place.”

Meanwhile, it is noteworthy that Section 47(2) of the Act has legally supported the biometric accreditation process and as such has obviated the use of incident forms that desperate politicians led formerly INEC survey officials to use to support their victory. The section giving legal teeth to the use of the Bimodal Voter Accreditation System device says, “To vote, the presiding officer shall use a smart card reader or other technological device as may be prescribed by the committee, for the accreditation of voters, to verify , confirm or authenticate the candidate voter’s data in the manner prescribed by the committee.”

According to INEC President, Professor Mahmood Yakubu, BVAS is used for the verification of the authenticity of the permanent voter cards and the fingerprint or facial authentication of voters during accreditation. “Second, it is the replacement of the Z-pad for uploading the results from the polling stations in real time to the INEC portal for viewing results on Election Day.” So it is used for result transfer. BVAS also acts as the INEC voter registration device during voter registration. Its use has also eliminated the use of incident forms during election day accreditation.

What happened in Osun state that led to the annulment of Adeleke’s victory is the failure of built-in integrity checks by INEC staff deployed to conduct the election, particularly the presiding officers of the 744 polling stations where the tribunal overvotes could determine. It appears that the pollsters in these units were coaxed or coerced into committing the fraud. Otherwise, they should have canceled the results from the polling stations instead of forwarding them to the INEC portal for results viewing. Second, it is the mistake made by the collation and returning officers of the respected centers where this electoral fraud took place. Had they checked the results as required by Section 64 of the 2022 Election Act, specifically paragraphs 4, 5, 6, 7 and 8, they would have discovered the fraud and canceled the inflated results.

I hereby recommend the punishment of these return and sorting officers in accordance with the provision of Article 64(9) which states: “Return officer or sorting officer, as the case may be, commits an offense if he or she deliberately collects or announces a false collection. ” result and is liable on conviction to a fine of N5,000,000 or imprisonment for not less than three years or both.

INEC must learn the right lesson from the revelation and the verdict of the Osun Election Tribunal. The committee should examine the advice of the tribunal which states: “To prevent the manipulation of BVAS machines in the holding of elections in Nigeria, the 1st respondent (INEC), the presiding officers of the polling stations and other key personnel of the 1st respondent, are required to wear an electronic device embedded in the vest that will have audio during the holding of elections. , video, and other data and information that may be sent to a server located at Police Headquarters, NIGCOMSAT, or the Office of the National Security Advisor, independent of the first responder. The data stored on the server in any of the said offices will aid in the investigation and possible prosecution of any offense that may arise from the use of BVAS machines at the polling station level during the holding of an election. .”

Twitter: @jideojong