INEC shifts guber polls to March 18 as court okays BVAS reset

With barely 48 hours to the conduct of the governorship and state Houses of Assembly elections, the Court of Appeal, yesterday, refused to restrain the Independent National Electoral Commission (INEC) from reconfiguring the Bimodal Voter Accreditation System (BVAS) machines.

In the ruling delivered by a three-member panel, led by Justice Joseph Ikyegh, it held that restraining the Commission would constrain INEC from conducting the March 11 polls. The court, in a unanimous decision, held that stopping the electoral body from reconfiguring BVAS would adversely affect Saturday’s elections.

In an application, Peter Obi, presidential candidate of the Labour Party (LP), had sought an order of the court “restraining INEC from tampering with the information embedded in the BVAS machines until the due inspection is conducted and Certified True Copies (CTC) of them issued.”

Earlier, Obi had stormed the court in company of LP National Chairman, Julius Abure, Anambra Central Senator-elect, Victor Umeh, among others, to witness the proceeding.

This is as INEC, last night, postponed the governorship and states Assembly elections slated for March 11 till March 18. The postponement followed the Appeal Court judgment that granted the request of the electoral body to reconfigure BVAS used for the February 25 presidential election.

According to INEC’s National Commissioner and Chairman, Information and Voter Education Committee, Festus Okoye, it will take the Commission five working days to reconfigure BVAS used in the 176,974 polling units where voting will take place for the election.

He said: “The Appeal Court has just granted INEC’s request to reconfigure BVAS for the governorship and states Assembly elections and it will take five days to do that. There might also be need to transport these BVAS machines to Abuja for reconfiguration, which could not be done until now.”

According to sources, INEC management was last night holding a meeting, where it was considering either March 18 or March 25 for the elections. It was however learnt that March 18 was chosen.

“You know that the BVAS re-configuration would take three or four days and since they would all be moved to the headquarters in Abuja, the machines would be re-configured and deployed to the various states and finally to the polling units,” one of the officials said.

Earlier, the appellate court, which is the Presidential Election Petition Tribunal, rejected INEC’s application to vary the orders it earlier granted to LP and the Peoples Democratic Party (PDP presidential candidates, Atiku Abubakar and Obi respectively, to inspect election materials used during the presidential poll.

The court said the application was unnecessary because it never granted permission to Atiku, Obi and their parties to scientifically access and inspect INEC’s database, including the BVAS devices.

The tribunal said the apprehension being expressed by INEC, which includes the possible revelation of the identities of voters and their voting choices, was unnecessary because no applicant was granted leave to access INEC’s database, only election materials.

The court stated that INEC had in an affidavit filed before the court, assured that the accreditation data contained in the BVAS machines could not be tampered with or lost, as they would be stored and easily retrieved from its accredited back-end server.

It further held that neither Obi nor LP objected to the depositions in INEC’s affidavit, stressing that since such averments were not challenged, it amounted to admission by the applicants.

The court, therefore, ordered INEC to allow the applicants to inspect and carry out digital forensic examination of all the electoral materials used in the conduct of the elections, as well as avail them CTCs of result after physical inspection of the BVAS machines.

Also, the court ordered INEC to allow the President-elect, Tinubu, inspect electoral materials used for the conduct of the election. In the ruling, Ikyegh said: “After reading the applicant’s motion ex parte, I am satisfied that there is substance in the application. I accordingly grant him leave to inspect, scan and make photocopies of some of the electoral materials.”

Tinubu had filed an ex parte application on Tuesday urging the court to allow him have access to the BVAS machines, among others, in preparation for his defence at the Presidential Election Petition Court, after Atiku and Obi filed a formal petition to challenge his victory.

Yesterday, Atiku inaugurated a legal team to challenge the election. The PDP presidential candidate, while inaugurating the legal team at his campaign headquarters in Abuja, charged it to establish the claim of illegality in the February 25 poll and reclaim the mandate of the Nigerian people.

In a statement by Atiku’s media adviser, Paul Ibe, Atiku told the team that apart from reclaiming the mandate from those who “undertook the electoral heist that was not a reflection of the will of Nigerians, the legal team should also use the opportunity of the trial to strengthen constitutional democracy in the country.”

Addressing the team headed by Chief J.K. Gadzama (SAN), Atiku said it was imperative that they work assiduously in reclaiming the mandate not necessarily because of him and PDP, but to strengthen democracy and the electoral process and for generations unborn.”

Members of the team include Chief Chris Uche (SAN), Mr. Paul Usoro (SAN), Tayo Jegede (SAN), Ken Mozia (SAN), Chief Mike Ozekhome (SAN), Mahmood Magaji (SAN), Joe Abraham (SAN), Mr Chukwuma Umeh (SAN), Dr. Garba Tetengi (SAN) and Chief Emeka Etiaba (SAN).

Others are Chief Goddy Uche (SAN), Prof. Maxwell Gidado (SAN); the National Legal Adviser of the PDP, A. K. Ajibade (SAN), Mr. O. M. Atoyebi, (SAN), Mrs. Nella Rabana (SAN), Paul Ogbole (SAN), Nuremi Jimoh (SAN), and Abdul Ibrahim (SAN).

Reacting to the Appeal Court’s nod to reconfigure BVAS, a lawyer, Michael Okpara, said its implication is that INEC can go ahead and reconfigure the machine, but must provide a back for the stored data.

Also, a Senior Advocate of Nigeria (SAN), Tanimu Inuwa, said the same thing.

Abubakar Sani described the decision as the case of the lesser of two evils by the court. According to him, the court was trying to prevent INEC from finding an excuse to postpone the governorship election.

“If not, you give INEC an excuse or pretext for every conceivable irregularity, which might mar next Saturday’s poll,” he said, adding that it is a calculated risk.

Caroline Ajie, a lawyer, in a contrary opinion, said the court should have given the petitioners time within which to inspect BVAS before the reconfiguration takes place and postpone the governorship election by one week.

Her words: “I think the court order should have specified a timeline such that the petitioners ought to have access to INEC materials through physical inspection and obtain CTCs thereof and then store the data in cloud before the BVAS is reconfigured for the governorship election. INEC ought to have moved the governorship election by one week only from March 11 to 18, to allow the said inspection and certification to be concluded, so matters of details being tampered with won’t arise.”

For human rights activist, Festus Ogun, the ruling is a win-win for both parties. “We must not forget that the court ordered INEC to allow Obi and LP to inspect and carry out digital forensic examination of all the electoral materials used, as well as to avail them the CTCs of the result of the physical inspection of BVAS.  “Once the CTCs of the physical inspection of BVAS is obtained, before the reconfiguration, I think it is still a good way to go. In all, the whole melodrama lays credence to the fact that our people lack trust in INEC. If not, the suspicion, fear and doubts that INEC could tamper with BVAS data would not have arisen in the first place.”

In another development, a Federal High Court sitting in Lagos has ordered INEC to directly and electronically upload results of the governorship elections in Lagos from the polling units to IReV.

Justice Peter Lifu granted the order while delivering judgment in a suit filed by LP and 41 others, in which they sought an order of Mandamus to compel INEC to obey the Electoral Act and its guidelines for the conduct of the elections.

Through their lawyer, Abbas Ibrahim, LP, its governorship candidate, Gbadebo Rhodes-Vivour, and 40 others had told the court that some Presiding Officers complained of wrong passwords as the reason for not being able to upload their BVAS information. In contrast, some complained the BVAS gave an “error” sign anytime they tried to upload.

The applicants also stated that “after seeing the pattern of February 25” and through the period of collation of the presidential results in Abuja, the handwriting on the wall became clear that the defendant, INEC had colluded with APC in Lagos to steal the mandate of Lagosians and to deprive the applicants their rightful victory at their various wards. They argued that if the court does not grant the leave, the same vote manipulations would occur on March 11.

But INEC through its counsel, Mrs Jacinta Kelechi-Ukaonu, had challenged the jurisdiction of the court to hear the matter, stating that the plaintiffs had failed to disclose any cause of action to warrant the exercise of the court’s discretion in their favour.

The court, therefore, granted the applicants order of mandamus, directing and compelling the defendant and all its agents and their privies or any persons acting under their directions to comply with and enforce the provision of clause 37 of the REGULATIONS AND GUIDELINES FOR THE CONDUCT OF ELECTIONS, 2022 for the conduct of the Governorship and House of Assembly elections in Lagos State on 11 March 2023 to wit: Mandating the Presiding Officer of all Polling Units to paste the Publication of Result Poster EC60(E) at the Polling Units conspicuously after completing the EC8A result sheet.

Meanwhile, the Nigerian Bar Association (NBA) has urged INEC to fix all glitches in the BVAS machines before Saturday’s elections. The association also asked INEC to exclude all its collation and returning officers with proven cases of misconduct in the February 25 polls from the forthcoming elections.

NBA National Publicity Secretary, Akorede Lawal, stated this in an interim report released yesterday, after NBA deployed over 1,000 INEC accredited observers to monitor the February 25 polls.

The statement said: “In the main, NBA observers expressed some satisfaction with the conduct of the election on February 25, but have also identified major challenges that should be addressed for future elections.

“These include late arrival of INEC officials and ballot materials at the polling stations, malfunctioning BVAS machines, limited or non-transmission of the results from the polling units to INEC Results Viewing Portal (IReV), insecurity at some polling units, including violent attacks on voters and officials, voter intimidation, snatching and destruction of voting materials, significant cases of vote-buying and limited access/facilities for persons living with disabilities.

“Generally, findings from the observation process indicated that only a quarter of the electorate were excellently impressed with the conduct of the ballots (27.1 per cent) while majority of the voters (64.6 per cent) were somewhat satisfied, only 8.2 per cent rated the election poor or very poor.

“Stemming from these observations, NBA urges INEC to ensure that all bugs or glitches in the BVAS machines and other election technology are fixed and improved and that INEC staff (including collation and returning officers) with proven cases of misconduct in the last round of election be excluded from the next election.”

However, 12 days after the election that produced Tinubu as the President-elect, the pan-Yoruba socio-political organisation, Afenifere, has stated that INEC illegally declared Tinubu as winner of the poll.

The mainstream Yoruba group pointedly disclosed that evidence at its disposal revealed that Obi won the election with the majority of votes garnered.

In a communiqué issued by the group at the end of its special general meeting, held at the Isanya-Ogbo country home of its leader, Chief Ayo Adebanjo, it maintained that the declaration of the result was an affront to the Constitution and a breach of the Electoral Act.

According to the communiqué, which was signed and made available to The Guardian by the Secretary-General of the group, Chief Sola Ebiseni, the deliberate non-compliance with the electoral law by the electoral umpire encouraged electoral brigandage at the polling units.

While insisting that the next president must be from the Southeast for the sake of national cohesion and peaceful coexistence, the frontline Yoruba group affirmed its support for Obi in approaching the court to retrieve his mandate.

Ebiseni also distanced the group from congratulatory messages being sent to the president-elect under the Afenifere umbrella.