ICYMI: INEC not bound to electronically transmit results, says supreme court in Osun guber case

The dispute as to who is the duly elected governor of Osun state has finally been settled by the Supreme Court of Nigeria but with far-reaching implications

Delivering judgment in the appeal filed by Gboyega Oyetola, candidate of the All Progressives Congress (APC), a five-member panel of the apex court affirmed the election of Ademola Adeleke as the governor.

Among several issues raised by Oyetola and the APC, the focal point of their case was over-voting.

They contended that the presiding officers who conducted the elections in 744 polling units across the state “did not comply with the Electoral Act, INEC regulations, guidelines and manuals in that they did not use the BVAS to accredit and verify voters in many of the polling units or did not properly accredit voters”.

The resultant effect according to the appellant was that there was over-voting in that the number of votes recorded in the polling unit result sheet (form EC8A) were more than the number of voters accredited, verified and recorded in the BVAS of the corresponding polling units.

However, the appellants failed to prove their case of over-voting.

INEC IS NOT BOUND TO ELECTRONICALLY TRANSMIT RESULTS

Notably, the apex court emphasised that there is no law that requires presiding officers to transmit by BVAS the number of accredited voters or accreditation of the polls to the database or backend server of INEC as claimed by the appellants.

“Therefore, the case of the appellants that the presiding officers were bound to instantly or on-the-spot transmit the number of accredited voters in the BVAS to the backend server or database of INEC has no support,” Emmanuel Agim who read the lead judgment said.

A federal high court in Abuja — in a January 23 ruling — dismissed a suit filed by the Labour Party (LP) seeking to compel the  INEC to adopt an electronic method for transmitting 2023 election results.

Emeka Nwite, presiding judge, held that the commission is at liberty to pick any method of transmitting election results.

INEC DATABASE CANNOT PROVE OVER-VOTING

The apex court in its judgment held that to prove the allegation of over-voting, a petitioner cannot rely on the INEC Result Viewing Portal (IReV) or information on INEC server or database.

The BVAS, INEC voter register or form EC8A showing the number of votes cast at each polling unit are the only admissible evidence that can be used to ascertain over-voting.

“Since the BVAS was the focal point and sole foundation of the appellant’s case, it was imperative that they produce the BVAS of the 744 polling units or a certified true copy (CTC) of the contents of the BVAS in evidence and show that the record therein established non-accreditation, improper accreditation and over-voting in the 744 polling unit,” the supreme court held.

“It is glaring that the appellant did not provide in evidence, any BVAS in any of the 744 polling unit, but rather sought to prove their case of wrong and improper accreditation and over-voting by means of a report of the examination of the INEC database or backend server containing the number of accredited voters and number of votes for each polling unit transmitted from the BVAS.”

The court held that the information relied on by petitioners “is not a direct record of the number of accredited voters but is third-hand evidence derived from the database which is a second-hand evidence derived from transmissions from the BVAS.”

The court also noted that the information at the backend saver might not be accurate because the BVAS may fail to transmit records for several reasons including poor internet connection, loss of battery power, failure of INEC official to properly press the submit button etc.

Additionally, the court discountenanced the argument of the petitioners that the voters’ register is not relevant.

Relying on INEC regulations for the conduct of elections and the Electoral Act, the court pointed out that the voters register is still relevant in voter accreditation and is to be used as well with the BVAS machine.

“In the event of a conflict between the record of accredited voters in the BVAS and the ticked names of the registered voters due to human errors in the ticking of the names in the register of voters, the BVAS record shall be used,” it said.

FUTURE IMPLICATIONS

One of the many implications of the judgment is that any future petition brought on the grounds of INEC’s failure to transmit results cannot stand.

One of the issues raised by Peter Obi, Labour Party candidate, in his petition challenging the election of Bola Tinubu as president is that the failure of INEC to promptly upload the results from polling units through BVAS to IReV portal on the day of the election invalidated the poll.

Also, any petitioners alleging over-voting must be able to produce the BVAS, INEC voters register and or a certified true copy of an INEC certificate of that record for each polling unit

“In the light of the foregoing, I hold that it is the record in the BVAS machine of the accredited voters or a certified true copy of an INEC certificate of that record for each polling unit that can prove the number of accredited voters in a polling unit on the day of election and nothing else,” the supreme court said.