The long awaited judgment (decision) of the Supreme Court of Nigeria (SC for short) on the Appeals that have climbed the courts’ ladders concerning Osun State Gubernatorial Election, 2022, is finally out! This decision no doubt raises great concerns, as some may be inclined to think it has prejudged the monumental Presidential Election Petitions cued up behind it, courtesy of HE Atiku Abubakar and HE Peter Obi.
Let me at the onset state that the case that was just decided by the SC in relation to Osun is a case on non-accreditation and improper accreditation. How and why the SC forayed into the issue of transmission of EC8As, not before the Apex Court, calls for some concerns. The cases that the Peoples Democratic Party (PDP) and the Labour Party (LP) have tabled before the Presidential Election Petition Court are principally on transmission of Polling Unit Results data, and the jpeg imagines of the Form EC8As meant to record such Polling Units’ results, primarily to insulate not just the integrity but also the validity of the election.
The holding of the Supreme Court per Agim, JSC in his Lead Judgment dealt a serious blow to the pending Petitions, for suggesting that real time upload is not a requirement of law. But the big question still remains: real time or not? Does the law require transmission of polling results for the election on the Election Day or shortly after the Election?
I dare to answer the above question in the affirmative, and my reasons will be saved for the Final Address in one of the Presidential Election Petitions of which I am also part of the Petitioners’ counsel. Suffice to add at this stage that I equally disagree with SC on its position on accreditation data because, accreditation data is a record from BVAS for Bi-Modal Accreditation and should form reliable data for troubleshooting an election.
I cannot conclude this write up without stating that SC has no power to water down the provisions of Section 84, Evidence Act, 2011 which has allowed for admissibility of computer-generated evidence. A BVAS Machine Report, once confirmed by an authenticating certificate, is primary evidence of what you will find on the BVAS Machine itself. That should be evidence in place of the Machine, which in actual sense is just a hardware on which the software generating such a Report is running.
The details of the judgment in SC/CV/508/2023 – Adegboyega Isiaka Oyetola & Anor. v. INEC & 2 Ors. as far as the hot issues around BVAS invention in the electioneering processes of Nigeria is concerned, can be found on pages 19 to 32 of the Lead Judgment delivered by Emmanuel Akomaye Agim, JSC. Clearly, the only Sections of the Electoral Act, 2022 that the Judgment dealt with for making far reaching pronouncements on BVAS were Sections 47(1)(2), 51(2), 62 and 137 of the Act.
There still remains a very large portion of the Electoral Act, 2022 that’s yet to come under the court radar for more robust pronouncements that will expound the law as far as BVAS and other technological devices deployed by INEC for conduct of election are concerned.
The views in this blog are the personal opinion of Jude Akpevweoghene Daniel, Managing Partner, OLP.
As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at
large the opportunity to view the polling unit results on the election day. It is clear from the provisions of Regulation 38(i) and (ii) that the Collation System and Result Viewing Portal are different from the National Electronic Register of Election Results. The Collation System and Result Viewing Portal are operational during the election as part of the process, the National Electronic Register of Election Results is a post election record and is not part of the election process.
As I had held herein, there is no part of the Electoral Act requiring the Presiding Officer to transmit the accredited voters in a polling unit or the polling unit result during election to the INEC data base as part of the election process. Hon. Justice Emmanuel Akomaye Agim, JSC (SC/CV/508/2023 – Adegboyega Isiaka Oyetola & Anor. v. INEC & 2 Ors.)