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Non-compliance with Electoral Act Invalidates Tinubu’s Election, Atiku Tells Tribunal

Non-compliance with Electoral Act Invalidates Tinubu’s Election, Atiku Tells Tribunal

•Maintains president-elect must score 25% in FCT 

•Insists bypass, non-use of BVAS in results’ transmission affected integrity of polls  •Protesters storm National Assembly, call for annulment of presidential election

•Seek removal, arrest of INEC chairman  

•British High Commission promises to keep an eye on legal proceedings

•Concerned about use of inflammatory, ethno-religious language by some politicians, their aides

•Urges leaders to caution those who speak on their behalf

Alex Enumah, Michael Olugbode and Udora Orizu in Abuja

The candidate of Peoples Democratic Party (PDP) in the last presidential election, Alhaji Atiku Abubakar, has told the Presidential Election Petition Court (PEPC) sitting in Abuja that the non-compliance with the Electoral Act 2022 by the Independent National Electoral Commission (INEC) rendered invalid the election of Bola Tinubu as president-elect. Atiku said this in a petition he filed, alongside his party, PDP, challenging the declaration of Tinubu as winner of the February 25, 2023, presidential election.

Outside the courtroom, the finger-pointing and recrimination around the poll outcome continued yesterday, as protesters stormed the National Assembly, Abuja, to express their displeasure over the result of the presidential election.

Similarly, yesterday, the British High Commission in Nigeria promised to watch closely the legal proceedings against the presidential election result.

INEC had declared the All Progressives Congress (APC) candidate in the presidential election, Tinubu, winner and, thus, president-elect. INEC said Tinubu scored a total of 8, 794, 726 votes to emerge winner, while the petitioner, Atiku, scored 6,984, 520 to emerge first runner up.

However, Atiku and PDP, in their petition dated March 21, 2023, and filed by a team of 26 Senior Advocates of Nigeria (SANs), among others, claimed that Tinubu’s victory was as a result of alleged malpractices and other irregularities, upon which they were seeking the nullification of his win.

Besides, the petitioners maintained that for any of the candidates in the February 25 poll to be declared winner, he or she must score 25 per cent of votes cast in the Federal Capital Territory (FCT). They added that Tinubu’s failure to meet the said constitutional requirement invalidated his election.

Respondents in the petition, marked: CA/PEPC/05/2023, are INEC, Tinubu, and APC as First, Second, and Third, respectively.

The petition was based on four major grounds, among which were that (a) The election of the second respondent was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022; (b) the election of the second respondent was invalid by reason of corrupt practices; (c) the second respondent was not duly elected by majority of lawful votes cast at the election, and the second respondent was at the time of the poll not qualified to contest the election.

Arguing the petition, lead counsel to the petitioners, Joe Gadzama, SAN, pointed out, “The non-compliance substantially affected the result of the election, in that the second respondent ought not to have been declared or returned as the winner of the election.”

They recalled that INEC chairman, Professor Mahmood Yakubu, had repeatedly assured the general public that the February 2023 general election would be the best election ever. The assurance was based on the guaranteed use of the Bimodal Voter Accreditation System (BVAS) and real-time and direct uploading of the polling unit results to INEC’s electronic collation system and Results Viewing Portal (IReV), which were technological innovations in the electoral system that would ensure the transparency of the elections against all forms of manipulation.

The petitioners stated that contrary to the undertakings, representations and assurances made by the first respondent, the first respondent proceeded on March 1, 2023 to wrongly return the second respondent as the winner of the election, “when the outcome (herein being challenged) and the results from the polling units, including the total number of accredited voters in the respective polling units, were yet to be transmitted to the 1st Respondent’s Electronic Collation System and the 1st Respondent’s  Result Viewing Portal (IReV) as stipulated by the Electoral Act, 2022 and the INEC Guidelines and Manuals and expressly guaranteed to the electorate by the 1st Respondent.”

The petition said further, “It is also the claim of the petitioners that the non-compliance with the electronic transmission of accreditation data and results in the presidential election was ‘to create opportunity for manipulation of figures to the advantage of the 2nd and 3rd Respondents.

“The petitioners will lead evidence at the hearing to show that there were no technical ‘glitches’ that prevented the upload and transmission of the polling units results and the accreditation data of the presidential election to the electronic collation system and the IReV portal but what happened was the non-adherence to the system through a command and control element activated by a pre-programmed design to limit user-privileges of the front-end users of the BVAS machines at the polling units with respect to presidential election results while releasing user privileges in respect of the National Assembly election windows, by selectively withholding correct passwords and/or issuing wrong passwords through the use of the Device Management System equipment aforesaid.

“It is the case of the petitioners that the bypass and non-use of the BVAS machines in the transmission of the accreditation data and polling unit results of the election fundamentally and substantially affected the integrity of the results announced by the 1st Respondent for the 2nd and 3rd Respondents and thoroughly discredited the process of the election.”

Moreover, the petitioners faulted the declaration of Tinubu as president-elect, having not met the required geographical spread as required by law, according to them.

They cited Section 134(2) of the Constitution, which stipulates that in a presidential election with more than two candidates, for a candidate to be deemed to be the winner of the election, he must have the highest number of votes cast at the election; have not less than one quarter of the votes cast at the election in at least two thirds of all the states in the Federation and have not less than one quarter of the votes cast at the election in the Federal Capital Territory, Abuja.

According to them, “Out of the total votes of 478,652 cast in the Federal Capital Territory, Abuja the 2nd Respondent was ascribed only 90,902 (18.99%) of those votes.

“The petitioners shall contend that to be declared duly elected, a candidate, in addition to obtaining not less than a quarter (25%) of the votes cast in at least two-thirds of all the states, must also receive at least one quarter (25%) of the votes cast in the Federal Capital Territory, Abuja, this being an additional requirement introduced by the Constitution of the Federal Republic of Nigeria 1999 (as amended), the said Constitution having clearly distinguished the Federal Capital Territory, Abuja, as a separate entity by specific and express mention.”

In addition, the petitioners argued that INEC failed to comply with the provisions of Section 66 of the Electoral Act, which incorporated Section 134 of the constitution in wrongfully, unlawfully, illegally and unconstitutionally returning Tinubu as winner of the Election.

On the allegation of corrupt practices, which was the second ground of the petition, Atiku and PDP submitted that the collation of election results in all the states of the federation was manipulated by INEC, “through the deliberate suppression and discounting of the lawful votes of the petitioners while inflating the scores of the 2nd and 3rd Respondents.

“The particulars of corrupt practices before and during the disputed election included, but not limited to, the following; compromised printing/production of electoral materials, manipulation of election material delivery, and compromised printing/production of election materials.

“Other acts of corrupt practices, according to them, include – suppression of votes; manipulation of the ballots and ballot boxes; manipulation of BVAS machines; manipulation of accreditation and collation; manipulation of election materials delivery; manipulation of election material reverse logistics; intimidation and harassment of voters; massive thumb-printing of ballot papers; destruction of electoral materials; hijack of electoral materials; mutilations, cancellations and over-writings on result sheets;  inflation, deflation of scores, and wrong entries in result sheets.

“There was massive suppression of votes of the petitioners by the 1st Respondent in several states, as shown in the report of the statisticians relied upon by the petitioners. 

“In Sokoto State, the 1st Respondent cancelled results from 241 polling units but went ahead to declare results for the presidential election, while declaring the National Assembly elections in the same Sokoto State that were conducted simultaneously with the presidential election, as inconclusive.”

The petitioners added that the cancellation affected 301,499 registered voters in 471 polling units of the affected local government areas.

The petition said, “The petitioners contend that the 1st Respondent wrongfully entered incorrect results for the petitioners in Borno State. The petitioners contend that the 1st Respondent wrongfully made various unlawful entries and inscriptions not being record of lawful votes cast at the polling units which votes are liable to be voided.

“In respect of Borno State, there was a deliberate by-pass of the use of the BVAS machines, notwithstanding the representations of the 1st Respondent’s agents based on the provisions of the Electoral Act and the INEC Manual and Guidelines.”

Among the reliefs the petitioners sought from the court were a determination, “that the 2nd Respondent was not duly elected by a majority of lawful votes cast in the election and, therefore, the declaration and return of the 2nd Respondent by the 1st Respondent as the winner of the presidential election conducted on the 25th day of February, 2023 is unlawful, wrongful, unconstitutional, undue, null and void and of no effect whatsoever.”

They also sought a determination “that the return of the 2nd Respondent by the 1st Respondent was wrongful, unlawful, undue, null and void having not satisfied the requirements of the Electoral Act 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which mandatorily requires the 2nd Respondent to score not less than one quarter (25%) of the lawful votes cast at the election in each of at least two-thirds of all the states in the federation and the Federal Capital Territory, Abuja.”

They equally urged the court to hold that Tinubu as at the time of the election was not qualified to contest the said election.

The petitioners, however, prayed that in the alternative, “that it may be determined that the 1st Petitioner, having scored the majority of lawful votes cast at the presidential election of Saturday, 25 February, 2023, be returned as the winner of the said election and be sworn in as the duly elected President of the Federal Republic of Nigeria.

“An Order directing the 1st Respondent to conduct a second election (run-off) between the 1st Petitioner and the 2nd Respondent.”

In further alternative, the petitioners prayed “that the election to the office of the President of the Federal Republic of Nigeria held on 25th February, 2023 be nullified and a fresh election (re-run) ordered.

Protesters Storm National Assembly, Call for Annulment of Presidential Election

Protesters, yesterday, stormed the National Assembly, Abuja, to express their displeasure over the outcome of the February 25 presidential election. They carried placards with various inscriptions, including, “Save our Democracy”, “Politicians are Killing our Democracy”, “INEC killing the Nigerian Democracy.”

They reiterated their earlier call for the annulment of the 2023 presidential poll.

The protest, which took off from the Unity Fountain in Maitama, paralysed vehicular movement in the heart of the nation’s capital for hours.

The demonstrators, however, met stiff resistance, as they were denied entry into the National Assembly premises by security men.

The Divisional Police Officer (DPO) at the National Assembly, who came to address the protesters, said there was no written permission from the group or the relevant authorities, and as such, they would not be allowed into the National Assembly premises. 

Leader and co-convener of the Free Nigeria Group, Dr. Moses Ogidi Paul, while addressing newsmen, described INEC as a failed institution.

Paul called for the arrest and prosecution of the INEC chairman for supervising what he described as a fraudulent presidential election. 

Other members of the group equally expressed their pain over the conduct of the presidential poll.

That came less than 24 hours after the group had staged a similar protest to the headquarters of INEC, where they demanded immediate removal of the INEC chairman.

British High Commission Promises to Keep an Eye on Legal Proceedings

The British High Commission in Nigeria promised to keep an eye on the legal proceedings against the presidential election result. This was contained in a signed statement, yesterday, by Senior Communications and Public Diplomacy Officer, Foreign Commonwealth and Development Office (FCDO) of the British High Commission, Atinuke Akande-Alegbe.

The statement disclosed that the British High Commission observed the governorship elections on March 18. It said the commission sent teams to Benue, Enugu, Kano, Lagos, Oyo and Rivers states.

The high commission stated, “We observed improvements around elections logistics by INEC during the gubernatorial elections, particularly when compared to the presidential elections.

“More polling units opened on time, there was greater evidence of BVAS and IREV working and results uploaded in real time from polling units and collation centres. These are positive markers to build on for future elections.

“However, there were notable points of concern. Members of our observation mission personally observed violence, and voter suppression in numerous voting locations. We witnessed and received credible reports from other observer missions and civil society organisations of vote buying and voter intimidation, the destruction and hijacking of election materials and the general disruption of the process in numerous states, including Lagos, Enugu and Rivers.

“In addition, we observed incidents of harassment of journalists. Freedom of speech and a free press are crucial for a healthy democracy, and journalists must be able to go about their work without being threatened.”

It further stated that the UK was concerned about the use of “inflammatory ethno-religious language by some public and political figures. We call on all leaders, not just to distance themselves from this kind of language, but to prevent those who speak on their behalf from doing so in this way.

“It is a testament to their commitment to democracy that many Nigerians were prepared to vote despite being faced with intimidation and hostility.”

The statement recalled that the UK Minister of State for Development and Africa, Andrew Mitchell MP, had on February 21 said the UK was prepared to take action against those who engaged in or incited electoral violence and other anti-democratic behaviours, noting, “The action could include preventing people from obtaining UK visas or imposing sanctions under human rights sanctions regime.”

The statement revealed that collation of relevant information was currently being undertaken, with a view to taking action against some individuals.

The statement further said, “We urge any party or individual who wishes to challenge the process or outcome of the elections to do so peacefully and through the appropriate legal channels.

“We will be observing the course of legal challenges made.

It insisted, “The 2023 elections are not only important to Nigeria and Nigerians, but to Africa and the world as a whole.  As a long-term partner, the UK is committed to strengthening the ties between our countries and peoples, including by supporting democratic development.”

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