2023:- Plot to retain polls result thickens

By OBINNA EZUGWU

Mr. Peter Obi, presidential candidate of the Labour Party, with his party, last week, filed a petition at the Presidential Election Petition Court (PEPC) in Abuja, asking it to declare him as the rightful winner of the February 25 presidential poll. 

His People’s Democratic Party (PDP) counterpart, Atiku Abubakar also filed similar suit, all in a bid to prove that Asiwaju Bola Tinubu, candidate of the All Progressives Congress (APC), who was declared winner and president-elect by the Independent National Electoral Commission (INEC), did not, in fact, win the election.

Obi, who came third, behind Tinubu and Atiku, with 6,101,533 votes, representing 25.4 percent of total valid votes, according to the results announced by INEC, has contented that the results were not a true reflection of the outcome of actual voting, and that in fact, he won the majority votes, with the necessary spread and ought to have been declared winner, and not Tinubu. Atiku, his PDP counterpart, who had 6,984,520 or 29 percent of the votes made similar argument.

Obi is also asking the court to determine that both Tinubu and his running mate, Kashim Shettima, were not qualified for the election; for the election to be cancelled, or that he be declared winner.
The former Anambra State governor and his party contend that both Atiku, a former vice president, and particularly Tinubu, who had 8,794,726 votes, or 36.6 percent took from his actual votes, and that INEC made this possible by its “deliberate failure” to upload results from polling units as promised ahead of the polls.

In the suit marked CA/PEPC/03/2023, which has Obi and Labour Party as first and second petitioners, while INEC, Tinubu, Kashim Shettima and APC were listed as first, second, third and fourth respondents, respectively, the petitioners contended that INEC’s failure to transmit results from polling units was a premeditated plan to give room for the
“The Petitioners further plead that due to the 1st Respondent’s refusal and neglect to upload and transmit the result of the election in the polling units to the IReV as required by law on the day of the election, the 1st Respondent suppressed the actual scores obtained by the Petitioners.

“The suppression of the 1st Petitioner’s scores, which occurred in Eighteen Thousand and Eighty-Eight (18,088) Polling Units was orchestrated by the 1st Respondent deliberately uploading unreadable and blurred Forms EC8AS on the IReV; and thereby, suppressed the lawful scores obtained by the Petitioners in the said Polling Units.

“The Petitioners hereby plead and shall at trial rely on a Spread Sheet containing the Polling Units Codes and details of the aforesaid Eighteen Thousand and Eighty-Eight Polling Units, as well as the authentic results in the aforesaid Eighteen Thousand and Eighty- Eight Polling Units. In addition, the Petitioners plead that in Benue State, the 1st Respondent also mischievously uploaded blurred Forms EC8A allegedly for Polling Units in an attempt to suppress the lawful result of the election in the Polling Units. The Petitioners shall also at trial rely on a Forensic Report of the Presidential Election held in Polling Units in Benue State.

“The Petitioners further aver that in Rivers State during the collation exercise at the Federal level, the 1st Respondent announced the scores of the Petitioners as 175,071 votes and the 2nd and 4th Respondents as having 231,591 votes. However, by the actual scores obtained at the polling units, the Petitioners’ lawful votes in Rivers State are 205,110 votes, while the 2nd and 4th Respondents’ score ought to be 84,108 votes.
“The Petitioners further contend that if the 1st Respondent had, as it was mandated to do, utilised the scores recorded on the Forms EC8A as against the fictitious Forms uploaded on the IReV, the Petitioners would have won Rivers State.

“Similarly, in Benue State, the 1st Respondent whilst suppressing the lawful votes obtained by the Petitioners, announced that the Petitioners scores from the polling units in Benue State is 308,372 votes. The 2nd and 4th Respondents’ score was falsely announced as being 310,468 votes. However, the actual scores of the Petitioners from the polling units in Benue State was 329,003 votes, while the 2nd and 4th Respondents’ scores were 300,421 votes.

“The Petitioners were also, by the unlawful announcement made by the 1st Respondent, denied as the winner of the election in Benue State. The Petitioners shall at trial rely on the forensic analysis of the election for Rivers State and Benue State made pursuant to the inspection of the election materials as ordered by the Court.

“The 1st Respondent and its Officers/Agents whilst purportedly acting under the cover of uploading the result of the Presidential Election held on 25th February 2023 on the iRev, embarked and are still embarking on massive misrepresentation and manipulation by uploading fictitious results in Polling Units, where there were no elections as well as uploading incorrect results. The actual scores of the Petitioners have been reduced, tampered with and falsely represented in the false election results uploaded in the iRev.”

The presidential election, by the submission of many observers, failed to meet set standards. Videos and pictures of mutilated results sheets and incidents of voter suppression abound, and INEC’s failure to upload results from polling units has helped to cast doubts about the credibility of the election and the results announced by INEC.

INEC’s failure to upload results from polling units despite repeated assurances is a major sticking point in the presidential election. Legal opinions are varied with respect to whether or not it constitutes a breach of its own guidelines.

But the law by default, presumes INEC’s announced results to be in order, and the burden to prove otherwise falls squarely on the petitioners; Obi and Labour Party on one hand, in this regard. And Friday’s decision of the Appeal Court in Abuja, which validated the victory of Ademola Adeleke, Osun State governor, at the July 16, 2022 election in the state suggests that even with BVAS, proving a case of over voting or manipulation of results remains a tough task.

“If the Supreme Court allows the Appeal Court decision on Osun to stand, what it means is that it takes us back to the fact that for you to prove over voting, you have to rely on the strength of the evidence of your witnesses,” said Liborous Oshoma, a legal practitioner.

“What it means is that Labour Party cannot jettison the voter register because of BVAS. It will also play a part; you have to examine the BVAS that was used for accreditation to establish that the people, who voted were actually accredited to vote. But you also have to call your agents at polling units to confirm that there were irregularities, and witnesses to speak to the documents you have tendered.”

“The Osun case is the first case for BVAS and what the Court of Appeal has done is to give a window into its mind. This will give the petitioners idea of what to expect and what to do. It shows that you don’t just need documents from the back end server, but also many witnesses.”
The Appeal Court in the Osun case, had in a unanimous decision by its three-man panel led by Mohammed Shuaibu, overturned the earlier decision of the election petition tribunal, which nullified Adeleke’s victory in January.

The immediate-past governor of the state, Adegboyega Oyetola, who came second in the 16 July 2022 election, had filed a petition challenging Mr Adeleke’s victory.

The Osun State Governorship Election Petition Tribunal in Osogbo, which upheld the allegation of over-voting in the areas won by Mr. Adeleke, had declared Mr. Oyetola of the All Progressives Congress (APC) the winner of the poll after deducting “unlawful votes” from the PDP’s scores.
However, Adeleke appealed against the lower court’s decision, urging the appellate court to set it aside and re-affirm his victory.

In upholding Mr. Adeleke’s victory on Friday, the Court of Appeal held that the tribunal was “wrong to reach the conclusion that there was over-voting during the state governorship election held on 16 July 2022.”

Justice Shuaibu, who prepared and read the lead decision said “the burden of proving the allegations of over-voting lies squarely with the respondents (Mr. Oyetola and the APC).”

“It is inconceivable to assume that the testimonies of the respondents’ witnesses had any probative value,” the appellate court held.

The Court of Appeal noted that Oyetola and the APC “did not tender the voter registers and Bimodal Voters Accreditation System (BVAS machines,” which captured data of eligible voters at the Osun governorship election.
“Though the 1st and 2nd respondents (Oyetola and APC) relied on BVAS reports obtained from INEC to prove over-voting, they did not, nonetheless, call petitioner’s witness 1 to speak to the reports, that is, Exhibits BVR reports from INEC’s back-end server.

“In their pleadings,” (Oyetola and APC) “alleged that the results recorded and transmitted directly from the polling units were not taken into account and, therefore, accredited voters recorded in Form EC8A from the disputed polling units do not tally with the number of BVAS for the same polling units.”

“Strangely, the tribunal, in its judgment, only relied on the table set out in an address of counsel to hold that overvoting occurred in an election,” the Court of Appeal said.

“Furthermore, the tribunal was wrong to have acted in the evidence in isolation of the voters register from the disputed polling units,” the court said.
The court held that the foundation of what transpired at the polling units would only be established by the evidence that is contained in the voter register and BVAS machines.

It’s a decision the Labour Party legal team would need to study closely. But in addition to irregularities, Obi is also demanding the disqualification of Tinubu, and Shettima for being wrongfully nominated.

The LP flag bearer’s petition was filed by a team of lawyers comprising over a dozen Senior Advocates of Nigeria (SANs), that includes Dr. Livy Uzoukwu, Awa Kalu, Onyechi Ikpeazu, Constitutional lawyer, Chief Sebastian Hon, and Jibrin Okutepa,
Obi contends in his petition that he and not Tinubu, scored the majority of lawful votes cast at the presidential poll.

The petition filed by Dr. Uzoukwu, SAN, is predicated on three grounds amongst which are that; Tinubu, as at the time of the election, was not qualified to contest the election; the election of Tinubu was invalid because of corrupt practices or non-compliance with the provisions of the Electoral Act, 2022 and that Tinubu was not duly elected by the majority of the lawful votes cast at the presidential election.

In the first round of the petition, Obi and LP are arguing that the nomination of Shetima as vice president was done in violation of the law and as such should be disqualified.

“The Petitioners aver that on July 14, 2022, the 3rd Respondent, contrary to the provisions of the Electoral Act 2022, whilst still being a Senatorial candidate for Borno Central Constituency, knowingly allowed himself to be nominated as the Vice Presidential Candidate to the 2nd Respondent on the platform of the 4th Respondent and became the new Candidate for the office of the Vice President on that date (14 July 2022).

“The Petitioners shall rely on Form EC11A signed by the 3rf Respondent and the officials of the 4th  Respondent on that same July 14, 2022.

According to the petitioners, at the time Shetima purportedly became a Vice Presidential Candidate, he was still the nominated Senatorial candidate of the APC for the Senatorial election for the Borno Central Senatorial Constituency.
“It is also the Petitioners’ case that a candidate, in this case, the 3rd Respondent, shall not knowingly allow himself to be nominated in more than one constituency.

“The Petitioners shall contend at the trial that the purported sponsorship of the 2nd and 3rd Respondents by the 4th Respondent was rendered invalid by reason of the 3rd Respondent knowingly allowing himself to be nominated as the Vice Presidential Candidate whilst he was still a Senatorial Candidate for the Borno Central Constituency.

“The Petitioners shall further contend that for this reason, the votes purportedly recorded for the 2nd Respondent at the contested Presidential election were/are wasted votes and ought to be disregarded”.

In addition, Obi and LP are insisting that Tinubu also “at the time of the election not qualified to contest for election to the office of President as he was fined the sum of $460,000.00 (Four-Hundred und Sixty Thousand United States Dollars) for an offense involving dishonesty, namely narcotics trafficking imposed by the United States District Court, Northern District of Illinois, Eastern Division, in Case No: 93C 4483.
Among documents they intend to tender in proving their claim include; a) Verified Complaint for Forfeiture, submitted by Michael J. Shepard (United States Attorney) and signed by Marsha A. McClellan (Assistant United States Attorney);

b) Stipulations and Compromise Settlement of Claims to the Funds held by Heritage Bank and CitiBank; and
c) Decree of Forfeiture as to Funds held by First Heritage Bank, signed by United States District Judge, John A. Nordberg.
“In the alternative to 2 above, an order canceling the election and compelling INEC to conduct a fresh election in which Tinubu, Shettima, and APC shall not participate.

“In the alternative to 1,2,3 above, I) that it may be determined that Tinubu was not duly elected by a majority of the lawful votes cast in the election for the office of the president and, therefore, the declaration and return of the 2nd Respondent as the winner of the Presidential Election’ is unlawful, unconstitutional and of no effect whatsoever.”

Obi and LP are by the suit seeking to do what none has done before – upturn the results of a presidential election in Nigeria. The use of technologies may have made gathering of evidence easier, and perhaps the petitioners have strong reasons to be hopeful, given the weight of evidence, even as the eyes of many Nigerians and the global community are on the courts, but legal experts urge caution.

“I think it’s important that expectations are managed,” said Okey Ikechukwu, professor of Strategic Management and Human Capital Development at the Nnamdi Azikiwe University, Awka.
“Judicial action after an election is part of the democratic process. The recognition of that fact is a plus. If in the past, there have been questionable outcomes from judicial interventions, it doesn’t remove the fact that it’s part of the process,” he said.

Already indications of dubtlebplotsvto scuttle the petition may have begun with speculations last week of a meeting between Chief Justice of Nigeria, Just stice Kayode Ariowola, and Tinubu in London, which was vigorously denied by both the Supreme Court and the Tinubu Campaign Organization. Also, there is apprehension that as a party in the dispute, INEC may deliberately work against the petition to preserve its tatteted image.

It was argued that INEC delay in letting LP lawyers access to the materials is the stall the process and enable them prepare a strong case, but the Appeal Court order preempted a prolonged delay.

The petitioners have taken the right path. They have also taken time to tabulate what they believe will make their case before the court. Whether it do that is what the court will tell us. They are going to argue there were irregularities. We also saw clips about the election that gave us concerns. But only the court can decide.