Appeal Court Rules Today on INEC’s Request to Vary Order Permitting PDP, LP to Inspect Poll Materials
•Tinubu seeks order to inspect election materials
•PDP raises the alarm over alleged plan to erase, destroy evidence of rigging
•Opposition parties insist reconfiguration of BVAS will tamper with evidence
Chuks Okocha and Alex Enumah in Abuja
The Court of Appeal in Abuja, yesterday, adjourned till today for ruling in an application by the Independent National Electoral Commission (INEC) seeking to vary the court’s order for inspection of materials used for the conduct of the February 25 presidential election.
Today, the court would also rule in applications brought by the All Progressives Congress (APC) and the president-elect, Bola Tinubu, for permission to carry out similar inspection of electoral materials used for the February 25 presidential election.
Justice Joseph Ikyegh, who led a three-member panel of the Court of Appeal, announced date for ruling in the application by INEC to vary the court’s order. That was shortly after lawyers representing parties in the suit adopted and argued their briefs of argument for and against the motion.
The move by INEC for an order to vary the permission the court had previously granted the Peoples Democratic Party (PDP) and Labour Party (LP) to inspect materials used by the commission in the conduct of the February 25 presidential election had elicited questions about the integrity of the recently held poll.
INEC had said the request was predicated on the need to reconfigure the Bimodal Voter Accreditation System (BVAS) used in the presidential election before deploying the machines for the March 11 governorship and state Houses of Assembly polls.
However, some IT experts told THISDAY that granting the order would allow the electoral body to tamper with the evidence and compromise the pending litigations on the controversial presidential poll, and further worsen the credibility of the entire process.
The IT experts believed INEC did not need to reconfigure the BVAS ahead of the gubernatorial and House of Assembly polls.
The presidential candidates of PDP, Atiku Abubakar, and LP, Peter Obi, had in their challenge of the outcome of the presidential election, recently, obtained the order of the court to inspect materials used in the conduct of the poll, including the BVAS.
INEC had declared the APC candidate, Tinubu, winner of the presidential election, which was marred by technical challenges.
Following the order obtained by both parties to inspect the election materials, INEC on March 4 approached the appellate court for an order giving it leave to reconfigure the BVAS used for the presidential and federal legislative elections.
The electoral umpire explained that the reconfiguration was to enable it deploy the BVAS for the forthcoming governorship and state Houses of Assembly polls.
INEC, through its lawyer, Mr. Inuwa Tanimu, in urging the court to grant its request, told the court that the defendants had nothing to fear, since the information that would be wiped out during reconfiguration would be stored and kept save in its server in the cloud.
Tanimu noted that time was not on the electoral umpire’s side and pointed out that if the earlier order was not varied, it might affect the conduct of the March 11 governorship election.
However, in their opposition to the request for varying the order, Chief Onyechi Ikpeazu and Chief Emeka Etiaba both Senior Advocates of Nigeria (SAN’s), representing Peter Obi and Atiku Abubakar, respectively, argued that if the order was varied vital information needed in proving their case would be wiped out.
Ikpeazu said the real number of accredited voters could only be gotten from the BVAS, adding that if the BVAS devices are tampered with in the name of reconfiguration, vital information would be lost.
In addition, the senior lawyer argued that the March 11 elections could be postponed if situation warrants so. He urged the court to dismiss the application of the commission.
Meanwhile, Ikpeazu prayed the court to grant his clients permission to conduct a physical/digital forensic inspection of the presidential electoral materials as well as an order directing INEC to issue him a Certified True Copy (CTC) of registered voters and polling units’ results.
He argued that the request was to ensure that the evidence was preserved before they are wiped out, noting that information on the INEC server vary from day to day.
He said it was not until information was gotten from the BVAS that Obi and Atiku were able to prove that there was no incidence of over-voting in last year’s governorship election.
The presidential poll had been rejected by the two leading opposition parties and had been criticised by international observers and civil society organisations.
Tinubu, a former Lagos State governor, was said to have polled a total of 8,794,726 votes to defeat his closest rival and presidential candidate of PDP, Atiku, who scored 6,984,520 votes, and Peter Obi of LP, who polled 6,101,533 votes, in an election that INEC failed to ensure instantaneous transmission of results to its IReV at the conclusion of voting at polling units as originally planned for the 2023 general election.
Dissatisfied with the declaration of Tinubu as winner of the presidential election, both Atiku and Obi vowed to ventilate their grievances at the Presidential Election Petition Tribunal, which is the court saddled with the responsibility of hearing and determining cases surrounding the conduct of presidential election.
While they were yet to file their respective petitions, Atiku and Obi in separate motions ex parte had sought for an order of court permitting them to inspect the materials used for the February 25 presidential election.
The order according to them was to enable them gather evidence needed in proving allegations of non-compliance and rigging of the poll.
Both Atiku and Obi are claiming that they secured the highest number of votes cast in majority of the states and ought to be declared winner, accusing INEC of manipulating the process to favour the ruling APC and its candidate, Asiwaju Bola Tinubu.
After listening to their respective applications last Friday, Ikyegh made an order permitting Atiku and Obi to inspect, “All the electoral materials used in the conduct of the election for the office of the president of the Federal Republic of Nigeria held on February 25, 2023.”
The court also permitted them to do electronic scanning and/or make photocopies of Voter’s Registration and ballot papers used in the presidential election.
In addition, both Atiku and Obi were by the order permitted to, “carryout digital forensic inspection of BVAS machines used for the conduct of the February 25” presidential election.
Tinubu Seeks Appeal Court’s Order to Inspect Electoral Materials
The appeal court would also today rule in the applications of APC and Tinubu, praying it to allow them also carry out similar inspection of electoral materials used for the February 25 presidential election.
Tinubu’s counsel, Akintola Makinde, said he would need to inspect, scan and make photocopies of some of the electoral materials to enable him prepare his defence against petitions that sought to nullify the presidential election.
Makinde made the request yesterday during the sitting in Abuja.
PDP Raises the Alarm over Alleged Plans to Erase, Destroy Evidence of Rigging
In a related development, PDP yesterday raised the alarm over an alleged plot by INEC to erase and destroy evidence of rigging in the February 25 presidential and National Assembly election by reconfiguring the BVAS.
PDP said allowing INEC to reconfigure the BVAS would wipe out all the evidence of the malpractices that took place on February 25.
Addressing a press conference yesterday in Abuja, National Publicity Secretary of PDP, Debo Ologunagba, told journalists, “We have called you to alert Nigerians and the international community of the atrocious move by INEC to destroy and erase evidence of its intolerable rigging of the February 25, 2023 presidential election.
“Late yesterday at 10: 10 pm, INEC, in a desperate move to prevent our party and candidate from obtaining necessary evidence as ordered by the court, filed a motion requesting that it be allowed to reconfigure the BVAS machines and wipe out relevant information that our party and candidate require to prosecute our case at the Presidential Election Tribunal.
“This reprehensible action by INEC to frustrate the desire of Nigerians to get redress through the court is a clear recipe for crisis and a deliberate design by the commission to derail our democracy and trigger anarchy in the country.”
According to the national publicity secretary, “Nigerians can recall how the INEC chairman, Professor Mahmood Yakubu, superintended over the manipulation of the results of the presidential election and hurriedly announced a winner in spite of widespread outcry and complain over numerous evidence of malpractices and violation of several provisions of the Electoral Act, 2022 by INEC and its officials.
“The INEC chairman bypassed all the steps and procedures provided by the Electoral Act, 2022 for the declaration of results, including to announce and declare only results that were transmitted directly from the polling units to the INEC server/website and to review the results in the event of disputes and objections as to the correctness and consistency of the collated result.”
Furthermore, Ologunagba said, “Section 64 (6) of the Electoral Act clearly states, ‘Where during collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the collation officer or returning officer shall use the following to determine the correctness of the disputed result-
“The original of the disputed collated result for each polling unit where the election is disputed; the smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed for the purpose of obtaining accreditation data directly from the smart card reader or technology device.
“Data of accreditation recorded and transmitted directly from each polling unit where the election is disputed as prescribed under section 47 (2) of this Act.
“The votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed, as prescribed under section 60 (4) of this Act.”
Furthermore, Ologunagba explained that Section 65 (1)(c) of the Electoral Act, 2022 said, “S. 65.-(1) The decision of the returning officer shall be final on any question arising from or relating to-…. (c) declaration of scores of candidates and the return of a candidate.
“Provided that the commission shall have the power within seven days to review the declaration and return where the commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.”
The PDP spokesman said, “instead of being guided by the law, the INEC chairman brazenly announced and declared results that were not transmitted directly from the polling units to INEC’s server/website while ignoring the objections and complaints raised during the collation in complete disregard to the provisions of the Electoral Act.
“Despite the provocative act of the INEC chairman, the PDP, as a law-abiding party, approached the court and obtained an order directing INEC to, among other things, grant our party and candidate unrestrained access to carry out a forensic examination of the ballot papers, data forms, BVAS/and or card readers and all other necessary information, material and evidence to get redress for Nigerians at the Election Tribunal.”
He stated further, “Apparently panicked by the order, INEC rushed to court to file a motion requesting the court to allow it reconfigure the BVAS devices with the view to erasing the information contained therein.
“In the obnoxious motion, INEC admitted that the ‘BVAS Application stores the Accreditation Data for all voters accredited on the device for the presidential, senatorial districts and House of Representatives elections’ conducted on the 25th February, 2023,” and that the reconfiguration of the BVAS devices “entails purging the Accreditation Data on the BVAS devices”.
“This action by INEC is vexatious, provocative and only points to the impunity and culpability of the commission with regard to the reported manipulations and alteration of results to deny our party and its candidate their victory at the presidential election.
“It further validates the fact that our party and presidential candidate won the February 25, 2023 presidential election, based on the actual votes cast at the polling units.
“If INEC has nothing to hide, why was it in a hurry to declare manipulated results without recourse to the provisions of the Electoral Act and without consideration of the disputes, objections and complaints raised by parties during the collation process? Why is INEC panicky and desperate to erase the data in the BVAS if not that they contain evidence of malpractices and its culpability in the election?”
He said the PDP, as a law-abiding party, would continue to pursue the matter in accordance with the law.