Mangled presidential election: Go to which court?

It is fundamental to state at this outset that there is no presidential election yet conducted in 2023 and that this is one moment when one would wish he were not a Nigerian. INEC started the process and there was voting but the collation of the results veered off the course of the law and has now ended in irredeemable and incurable deformity. Verification and authentication of results must first be done before collation and announcement at ward, LG, and state levels and in the final stage at the national level. Results of elections from 176,846 polling units ought to have been transmitted/uploaded to the INEC Result Viewing (IReV) portal immediately after the votes were counted at every polling unit and before the commencement of the declaration of results at the national level. This is what incurably damaged the presidential election and voided the outcome.

There is nothing ambiguous about Section 64 (4) of the Electoral Act states, which that “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 and that the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units”.

The law also states that “where a smart card reader or any other technological device fails to function in any unit and a fresh card reader or technological device is not brought, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours”. The reason for this provision also is to ensure electronic voting and further ensure there is no over-voting since BVAS would show it. For this reason, the incidence form was abolished by the Electoral Act 2022.

What happened on February 25, 2023, was therefore not just a charade in all respects; the most damaging impairment of the so-called election was that it was conducted outside the Electoral Act 2022; you cannot put something on something and expect it to stand. We are not God who built the foundation of His universe in the air.

If a law lays an express procedure and rules out discretion, it cannot be circumvented by its operator, and the outcome is still held to be a product of such law. The Electoral Act 2022 expressly provided the procedure for the presidential election and most importantly, the electronic transmission of results to the viewing portal. This provision happens to be the only key difference between the old electoral act and the current one – an electronic transfer of results. It is therefore horrifying to hear the senate president, Senator Ahmad Lawan, claim that transmission of the result was not part of the electoral act passed by the senate.

Somebody should also inform Senator Lawan that the transmission of results does not have to be in figures as he claimed. What the electoral act provided for pictorial transmission. For the avoidance of doubt, transmission is the act of transferring something from one spot to another, like a Radio or TV broadcast. Electronic transmission, therefore, is transferring by electronic means, not by hand.

It is also important to also state why the electronic transfer of results was fought for by Nigerians as the only panacea to rigging that occurs through the falsification of voting results. The world over, politicians want to win elections by fair and foul means. That is why counteracting laws and strong institutions are put in place to checkmate this inherent tendency of politicians, the exact reason the Electoral Act 2022 was designed to ensure that figures do not get altered by colluding INEC officials and that when they alter the results, the electronically transferred results would show the variance and the affected polling unit result is cancelled as a consequence.

This unambiguous provision makes collation and announcement of results not authenticated and collaborated by the electronically transferred copy illegal and void. Doing so in the 2023 presidential election is both criminal and illegal. This is the reason the declaration of presidential results and president-elect are done outside the law.

What Prof Yakubu has done is illegally announce Tinubu as the winner and ask everybody else to go to the tribunal. Before then, the commission belatedly claimed that its viewing portal was down due to overload. Granting but not conceding that that was the case, the only legal, logical, and patriotic response by INEC should have been halting the collation and announcement of results until the portal is restored since collation cannot be done without authentication of which the viewing portal is an integral part. Till today, over 30 thousand polling unit results have not been uploaded.

Over N350 billion was spent by INEC on this election, part of which was used to procure the digital infrastructure for the electronic transmission of results as required by law. BVAS is the electronic equipment deployed by INEC to give effect to the electronic accreditation of voters and transfer of results from the polling units to the INEC viewing portal (IReV). Its utilisation is obligatory and mandatory and bypassing it is unforgivable.

One point needs to be made here also. This is not about Bola Ahmed Tinubu who has been declared president-elect; it is about Nigeria as a nation built and run according to law; it is about democracy and the democratic process for recruitment of the nation and achieving a peaceful and orderly change of government. That is what is being violated by the fiasco called the presidential election by the Prof Mahmood Yakubu-led INEC.

One of the most common arguments in favour of studying history is the famous quote by George Santayana, which states: “Those who cannot remember the past are condemned to repeat it”. This simply means that people who do not learn from the mistakes of the past are going to make the same mistakes. What ended the First Republic and inflicted the Nigeria-Biafra civil war was the rigging of the 1964 general election. It is now evident that our leaders, political actors, electoral umpires, and even the security agencies do not care about such ugly history of Nigeria and what precipitated it and therefore do not care if they repeat the same fatal mistakes.

One theory of democracy is that its main purpose is to allow peaceful revolutions. The idea is that majorities voting in elections approximate the result of a coup. In 1962, John F. Kennedy famously said: “Those who make peaceful revolution impossible will make violent revolution inevitable”. This eternal statement by the former US president is instructive and gives an idea of the political behaviour of citizens when they desire change and can’t have it.

To avoid cataclysmic reactions from angry Nigerians, the president and INEC advised aggrieved candidates to go to court. This advice is not tenable also because, apart from the illegality of collating results without authentication, the time-lapse would permit perfecting the rigging. BVAS can be reconfigured to account for the new figures. What is more, gone are the days when it was said the judiciary is the last hope of the common man and the erosion of that confidence in the Nigerian courts for Nigerians is one of the legacies of the Buhari administration.

What then is the way moving forward? If possible return to the point where the process veered off the Electoral Act. Where impossible, repeat the presidential election. Nigeria is at crossroads again and the turn the nation takes will make or mar.

Mefor is a senior fellow of The Abuja School of Social and Political Thought; Tel.: +234- 905 642 4375; e-mail: [email protected]. He tweets @LawMefor1

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