The Labour Party presidential candidate, Mr. Peter Gregory Obi, has presented facts and concise argument on issues for determination before the Presidential Election Petition Court (PEPC), accusing the Independent National Electoral Commission (INEC) of violating the electoral laws as enshrined in the Constitution, as amended, as well as the Electoral Act 2023.
In Peter Obi’s Final Written Address presented to the Tribunal challenging the 2023 presidential election held on February 25, 2023, as conducted by INEC which saw the All Progressives Congress (APC) presidential candidate, Bola Ahmed Tinubu, declared winner, he stated amongst other things:
1. From the purported result of the Presidential election announced/declared by the 1st Respondent on 1st March 2023, Tinubu and his running mate, Senator Kashim Shettima, did not win one-quarter (25%) votes cast at the election held on the 25° February 2023 in the Federal Capital Territory, as required by the correct meaning and interpretation of the provision of Section 134 (2) (b) of the 1999 Constitution as amended.
2. The Petitioners also cited non-compliance with the electoral act and the subsidiary legislations made thereunder, for the conduct of the presidential election conducted on the 25th February 2023. He stated:
The pertinent question is, how can an election result that lacks transparency, violates specific rules and regulations, palpably compromised, not susceptible to verification by the admitted technological platform introduced as an innovation for a transparent process, and contravenes clear constitutional provisions, be rightly described as “accurate” and or authentic.
In the ensuing paragraphs, we will show that by the unchallenged evidence before the Honourable Court, the Petitioners established that the 1st Respondent who had the statutory duty to conduct the Presidential election, manifestly threw overboard the mandatory requirements of the Electoral Act, 2022 and the subsidiary legislations made thereunder, for the conduct of the 2023 General election, particularly the questioned Presidential election. The Petitioners will urge the Honourable court, to uphold that non-compliance with the binding statutory provisions in the conduct of the Presidential election, substantially affected the purported declaration and return of the 2nd and 3rd Respondents as the alleged winners of the Presidential election.
In proof of its case, the Petitioners called as witnesses PW2; Anthony Chinwo, a Cloud Engineer/Architect, PW3; Staff of Channels Television, PW4; A Professor of Mathematics, who produced and tendered expert report of the data analysis on the result of the 25th February 2023 Presidential Election, PW5;Staff of Arise TV, PW6; Staff of AIT, PW7; A Cloud Engineer/Architect and Employee of Amazon Web Services and PW8; the Cyber security and Risk Advisory Consultant among other witnesses. The above identified witnesses gave expert and specialist/technical evidence before the Honourable court. Despite the vigorous cross-examination of the expert witnesses, their evidence on the particular subject they testified remained unchallenged.
Preparatory to the conduct of the 2023 General Elections, the INEC publicly represented that as enjoined by the Electoral Act, 2022, it would use technology for the conduct of the election. By the use of technology, it assured that it would use the BVAS for both accreditation of voters, upload and transmission of the results of the election on the day of election in real time to the INEC Result viewing portal (IReV).
The upload and transmission of the result of the election from the polling units, using the BVAS to the IReV was a significant feature of the 2023 General Election which it severally represented and marketed to both the Nigerian public and the international community as a major innovation/introduction that would guarantee transparency in the conduct of the 2023 General Election. This representation, described by the 1st Respondent as a major innovation, was established before the Honourable Court witnesses. From the video recording shown and played in open Court, the above representation was made locally here in Nigeria, and also, to the International Community at Chattam House London, during which the Chairman reaffirmed that INEC was irrevocably committed to the online real-time transmission of the election results from the polling units to the IREY on the day of the election.
The word “electronically transmit/transfer” is a technical term which refers to transfer of digital files or data from a device such as BVAS to a server such as the IReV. The Electoral Act 2022 clearly provided that, “The presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission”, failure of which is punishable upon conviction with a fine or imprisonment.
The requirements for the presiding officer to “transfer the results….in a manner prescribed by the Commission”, connotes that the clear intention of the lawmaker is that any non-compliance with the sub-section, will attract serious consequences.
The Regulations and Guidelines for the Conduct of the Election 2022 and the Manual for the Election Officials 2023 made by INEC are subsidiary legislation promulgated by INEC in accordance with the provision of Section 148 of the Electoral Act 2022 were neglected. This Honorable Court was emphatic that “the manual for the conduct of elections and their guidelines are meant to be obeyed…” and are not mere instructions or directions; rather, they are subsidiary legislations which have the force of law. They have their origin from the Constitution and the Electoral Act.”
INEC prescribed the manner for the “transfer of result including total number of accredited voters and the results of the ballot” in its Regulations and Guidelines and the Manual for Election Officials.
Paragraph 38 (i) and (ii) of the Regulations and Guidelines specifically provides that: “on completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:
⦁ Electronically transmit or transfer the result of the polling unit, direct to the collation system as prescribed by the commission.
⦁ Use the BVAS to upload a scanned copy of the EC8A to the INEC result viewing portal (IReV) as prescribed by the commission.
The result electronically transmitted/transferred, shall serve as the benchmark for a proper collation of the result of the election in a polling unit.
The Manual for Election Officials, under the sub-heading “electronic transmission/upload of election result and publishing to INEC Result Viewing (IReV) Pmial”, captured the fundamental importance for the requirement of electronic transmission of the result of the election as follows:
“One of the problems noticed in the electoral process is the irregularities that take place between the Polling Units (PUs) after the announcement of results and the point of result collation. Sometimes results are hijacked, exchanged, or even destroyed at the PU, or on the way to the Collation Centers. It becomes necessary to apply technology to transmit the data from the Polling Units such that the results are collated up to the point of result declaration. The real-time publishing of polling unit-level results on IReV Portal and transmission of results using the BVAS demonstrates INEC’s commitment to transparency in results management. This commitment is backed by the Electoral Act 2022, which confers INEC with the power to transmit election results electronically. The system minimizes human errors and delays in results collation and improves the accuracy, transparency, and credibility of the results collation process”.
INEC, in recognition of the internet challenges that may hamper the transmission of the result of the election as part of the collation process, also provided that “the e-transmission application has been updated to work offline, when and where there is no network. This guide seeks to show the configuration of the e-Transmission application on the BVAS to enable it to perform the offline and online”.
In furtherance of the above provisions in the Electoral Act, Regulations and Guidelines and the Manual for Election Officials, INEC, through several media and press briefings, represented/reassured Nigerians and the International Community of its commitment to the compliance of the law by the electronic transmission of the election results from the polling units using the BYAS to the IReV and that this commitment and compliance were not negotiable.
The appropriate question is whether INEC, having publicly represented/assured that it was irrevocably committed to complying with the law by electronic transmission/upload of election results from the polling units to the IReV Portal as prescribed by INEC itself, is INEC not estopped from reneging from this publicly given assurance/representation?
Apart from the press briefing containing the representations/assurances given, INEC also, by a Press release dated November 11, 2022, captioned “alleged plot to abandon the transmission of polling unit result to IReV Portal” and signed by Festus Okoye Esq, National Commission and Chairman Information and Voter Education, re-emphasized that the “Commission has repeatedly reassured Nigerian that it will transmit result directly from the polling unit the
In deliberate mischief contrived and engineered by INEC in the conduct of the Presidential election, in response to the Subpoena dated 13th June 2023, issued by this Honourable Court commanding it to produce the above referenced Press release, the Deputy Director of Legal Drafting Department, on behalf of INEC, boldly told the Court that the said Press release dated 11th November 2022, does not exist and not in the records of the 1st Respondent. However, in his evidence before the Honourable Court, PW8, who adopted his written witness statement on oath as his evidence in chief, provided unchallenged expert evidence and testified inter alia as follows:
“I am further aware that the INEC website http://wpl.inecnigeria.org contains publicly accessible information of resources/materials published and issued by INEC from 2018 to 2023. Specifically, the uniform resource identifier (URI) http://wpl.inecnigeria.org/wp-content/uploads/2022/ll/1-2-500×749.jpeg contains the INEC Press Release dated November 11, 2022, captioned “Alleged Plot to Abandon the Transmission of Polling Unit Results to IReV Portal” and signed by Festus Okoye, Esq. National Commissioner and Chairman Information and Voter Education Committee. A Copy of the above Press Release, which I downloaded from the publicly available URI is attached as Exhibit B.” The press release was admitted in evidence by the Court.
L45 It is submitted that, when the press release dated 11th November 2022; Exh PCK2 (which the 1st Respondent’s Deputy Director Legal Drafting Department, half-heartedly denied its existence) 1s examined together with the representation/assurance given by the 1st Respondent as per the evidence of PW3, it follows that the prescribed requirement for the uploading/electronic transmission of the result of the election in real time and during the election, from Polling units using the BVAS to the IReV Portal, is a fundamental and indispensable requirement of the election process under the Electoral Act.
Recently, the Supreme Court clarified that, while “there is no part of the Electoral Act and INEC Guidelines that require that election result of a polling unit should on the spot during the poll be transmitted to the INEC National Election Register of data base, “… the Regulations provide for the BVAS to be used to scan the complete result in Form EC8A and transmit or upload the scanned copy of the polling unit result to the Collation System and INEC Result Viewing Portal (IReV)…” (underlining for emphasis)
The polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day. It is clear from the provisions of Regulation 38(i) and (ii) that the Collation System and Result Viewing Portal are different from the National Electronic Register of Election Results. The Collation System and Result Viewing Portal are operational during the election as part of the process, the National Electronic Register of Election Results is a post-election record and is not part of the election process.”
The decision in OYETOLA v. INEC supra, properly read and understood, supports the Petitioners contention that the uploading/electronic transmission of the results of the election in real time or during the election, from the polling units to the IReV, is a mandatory requirement of the electoral process.
The only reason invented by INEC for its manifest non-compliance with the above mandatory prescription for the upload/electronic transmission of the result of the election from the polling unit to the IReV, is alleged occurrence of “technological glitches” on the day of the election.
Read also:
Peter Obi’s Final Written Address To Tribunal: On BVAS & IReV We Stand (Pt. 2)
—
©Copyright 2023 News Band
(If you would like to receive CURRENT NEWS updates from News Band on WhatsApp, or Telegram, or wish to send eyewitness accounts/ reports/ articles, write to elstimmy@gmail.com and we will respond instantly. Follow us on twitter @News Band; like our Facebook page: News Band.)
