In the first part of this series, I analysed the ground 1 of the Petition filed by the Labour Party Presidential Candidate, Mr. Peter Obi alongside his party. In this second part I will take a comprehensive look at Ground 2 of the said petition. I will try to be as concise as possible.
*GROUND 2: The election of the 2nd Respondent was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2022*
The petitioners in trying to give flesh to this ground went on a long voyage wherein they made many statements from paragraph 33 to paragraph 79 of their petition. I will attempt to summarise the contents of these 25 paragraphs.
1. The Petitioner in paragraphs 33 to 45 was basically outlining the procedures for the conduct of the election starting from accreditation of voters, voting, sorting of ballot papers, counting of ballot papers, recording of results, transmission of scanned polling unit result sheet to collation of results, as outlined in the Electoral Act 2022 and the INEC Guidelines and Regulations for the Conduct of Elections 2022.
2. In Paragraphs 46 to 49, the petitioners talked about the existence and use of Amazon Web Services by the 1st Respondent (INEC) to host election data.
3. In paragraphs 50 to 52, the petitioners then laid out their grievance regarding the inability of INEC to immediately upload all scanned result sheets from the BVAS machines in all the polling units to its result viewing portal, the iREV at the conclusion of polls on 25th February, 2023. They stated that this amounted to non-compliance of the provisions of the Electoral Act 2022 and INEC Guidelines as regards collation of results. According to the paragraph, the results of any election shall only be accepted for collation if the Collation Officer ascertained that the number of accredited voters corresponded with the number captured in the BVAS and where votes for the parties correspond with the result transmitted from the polling units.
4. The petitioners in paragraphs 53 and 54 (to an extent), went further to hold that in violation of its regulations and the Electoral Act 2022, results of the Presidential election held in the polling units were not fully uploaded on iRev as at the time of the purported declaration of the 2nd Respondent, President-elect Bola Tinubu as the winner of the Presidential election, which according to them, gave room for the manipulation of the said results by officials of the 1st Respondent (INEC).
5. Paragraphs 57 to 59 of the Petition is basically accusing INEC of failure to allow them access to inspect materials used for the election.
6. In paragraphs 60-61, the petitioners said that INEC suppressed the actual scores of the petitioners in 18,088 polling units out of the 176,846 polling units in the country.
7. In paragraphs 62-63, the petitioners specifically stated that in Rivers State, based on the actual results from the polling units as recorded in the forms EC8A, Mr. Peter Obi polled 205,110 votes instead of the 175,071 votes INEC announced while the 2nd and 4th Respondents polled 84,108 votes instead of the 231,591 votes that was announced by INEC.
8. In paragraphs 64-65, the petitioners that it won in Benue and that their actual scores is 329,003 votes instead of the 308,372 votes that INEC announced while the 2nd and 4th Respondents’ votes ought to be 300,421 votes instead of the 310,468 votes that INEC announced.
9. In paragraphs 66 – 71 the petitioners further averred that votes obtained by the petitioners in many polling units were unlawfully subtracted and added to the scores of the 2nd Respondent and that when you take back the unlawfully subtracted votes and credit it to the petitioners, the Petitioners will have the highest number of votes and therefore will become the winner of the election.
10. The petitioners in paragraphs 72-73 alleged that votes cast in Polling Units in *Ekiti, Oyo, Ondo, Taraba, Osun, Kano, Rivers, Borno, Katsina, Kwara, Gombe, Yobe and Niger States* exceeded the number of voters accredited on the BVAS in those states. It went further to state that the results computed for the 2nd Respondent didn’t comply with legitimate process for computation and disfavoured the petitioners in the following states: Rivers, Lagos, Taraba, Benue, Adamawa, Imo, Bauchi, Borno, Kaduna and Plateau.
11. Finally between paragraphs 74-79, the petitioners basically stated that the results and details recorded in forms EC8A, EC8B, EC8C, EC8C and EC8E, which formed the basis of the declared result were not the product of compliance with the provisions of the Electoral Act 2022 and the INEC Guidelines since results were not immediately uploaded to the IREV portal.
I will head straight to paragraphs 50 to 52 of the Petition because that is where the petitioners laid out their main grievance on why they averred that INEC did not comply with the provisions of the Electoral Act 2022, which in their opinion made the election of the 2nd Respondent invalid. In trying to prove that the result viewing portal IREV was central to the result collation process, the petitioners relied on Clause 48(a) of INEC Guidelines and Regulations for the Conduct of Elections 2022 which states that:
_”An election result shall only be collated if the Collation Officer ascertains that the number of accredited voters agrees with the number recorded in the BVAS and votes scored by Political Parties on the result sheet is correct and agrees with the result electronically transmitted or transferred directly from the Polling Unit as prescribed in these Regulations and Guidelines.”_
The petitioners deliberately avoided Clause 48(c), which states:
*_”If no result has been directly transmitted electronically for a polling unit or any level of collation, the provision of Clause 93 of these Regulations shall be applied.”_*
Now, you want to ask what Clause 93 of the Regulations provides. Clause 93 states as follows:
_”Where the INEC hardcopy of collated results from the immediate lower level of collation does not exist, the Collation Officer shall use electronically transmitted results or results from the IREV portal to continue collation. Where none of these exist, the Collation Officer shall ask for duplicate hardcopies issued by the Commission to the following bodies in the order below:_
_(i) The Nigeria Police Force; and_
_(ii) Agents of Political Parties._
In essence the foregoing provisions in the INEC Guidelines renders the main grievance of the petitioner useless because INEC had consistently maintained that the collation process would be manual regardless of the presence of the IREV portal. Section 62(1) of the Electoral Act 2022 gave INEC the power to determine how results from the polling units shall be collated at every level. Meanwhile INEC on its part, in addition to Clause 48 and 93 also stated in Clause 91(i) of its guidelines that *Forms EC8A and EC60E are the building blocks for any collation of results*.
Now, there is another misconception on the provisions of Clause 48(a) that was even quoted by the petitioners, which is a widespread misconception held by many Nigerians, albeit innocently. During the commencement of the collation process at the ward level, the Ward Collation Officer requests for two things from the Presiding Officer of each polling unit – the form EC8A series used to record the votes by the political parties and the BVAS device.
The reason is this: the collation officer at the level being the first needs to ensure that the number of accredited voters recorded by the Presiding Officer on the Form EC8A tallies with the number of the accredited voters the BVAS device recorded (which is the authentic figure that cannot be manipulated). Secondly, he will then have to check if the tally of votes recorded for the political parties on the original form EC8A being submitted by the Presiding officer agrees with the copy of the same form EC8A the PO initially used the BVAS device to scan at the polling unit after the party agents present have signed.
*The scanned EC8A in the BVAS, once transmitted to the INEC server cannot be altered and remains in the BVAS device until the BVAS is reconfigured for use in another election. In other words, even if the transmitted copy of the result did not get immediately uploaded into the IREV portal, it has been TRANSMITTED and can’t be tampered with. The Presiding Officer either willingly or under duress can alter the results already entered on the original form EC8A (which is always 1 in number and customised to each Polling Unit hence the alterations seen on the form by those attempting to rig) before the result gets to the collation officer, but he or she can’t tamper with the information contained in the BVAS device so long as no new accreditation took place long after the end of voting.*
What this basically means is that a Collation Officer at the Ward Level does not need to log into the IREV portal to confirm the electronically transmitted form EC8A from a polling unit because the transmitted result for that polling unit is right there in the BVAS! It’s just a bit like sending a text message to a number that is switched off. You can easily get the text sent by going through the sent message folder of the sender instead of having to rely on if the message has arrived the recipient’s inbox. Delay in the delivery of a sent message to a recipient does not mean the message wasn’t sent. The BVAS works on similar principle.
Therefore, INEC complied with the provisions of the Electoral Act 2022 and its own Guidelines in the collation of the 2023 Presidential Election Results from the ward, LGA, state to the national collation process. The petitioners will have to erase Clause 48(c) and 93 as well as turn Clause 48(a) upside down for them to prove any non-compliance on the part of INEC. The election of President-elect Asiwaju Bola Ahmed Tinubu is therefore valid by all ramifications.
In the next part of this series, I will briefly comment on the other issues contained in Paragraphs 57 and above of the Petition before delving into ground 3 of the said petition.