Electoral Act: Fresh controversy over BVAS as tribunals give judgements

When the Ninth National Assembly amended the electoral law to produce the 2022 Electoral Act, which made provisions for the use of BVAS technology in the conduct of the 2023 general elections, the citizen’s hope for credible polls was rekindled.

This was clearly demonstrated by the level of fanfare, hope and enthusiasm that followed the build up to the elections.

The electoral umpire, the Independent National Electoral Commission, INEC, long before even the political party primaries were conducted, gave Nigerians hope of a new beginning.

The electoral body had spoken so much about the wonders of its new technology, the BVAS. The INEC presented a larger than life picture of what the BVAS could do, and consistently promised Nigerians at every turn as the electoral process progressed that it was going to deploy the technology fully to ensure that the elections were free, fair and credible, devoid of rancour and acrimony as witnessed in the past.

The INEC National Commissioner in charge of Publicity and Voter Education, now retired, Festus Okoye, never missed a week without reminding Nigerians about the INEC’s preparedness to use the BVAS technology in the 2023 general elections.

According to Okoye, Section 7 (2) of the Electoral Act 2022 makes it mandatory that to vote, the presiding officer shall use a smart card reader or any other technological device that may be prescribed by the Commission for the accreditation of voters to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.

He emphatically stated that the use of BVAS was a mandatory provision of the law and not an option of charity.

“The Commission does not have the discretion on whether to use the BVAS or not. The law says that we shall and must use the BVAS and this Commission is committed to using it because we spent so much time, energy and resources in putting it together,” he said.

He further revealed that the BVAS was developed by the Commission’s in-house engineers as a way of making sure that identity theft was minimised as much as possible at the polling units. And as such the Commission could not spend so much time and resources to develop BVAS and then throw it away.

“It doesn’t make sense. So, the BVAS has come to stay and we are going to continue to use it in all our elections,” he added.

On the electronic transmission of election results through the BVAS, Okoye equally quoted a section of the Electoral Act 2022 to back it up.

He said: “The Commission will also transmit polling unit level results real time. The transmission of the polling unit level result is also a mandatory provision of the law. The Section 64 (4) of the Electoral Act 2022 made it mandatory.”

Moved and convinced by Okoye’s persistent assurances, Nigerians enthusiastically believed the INEC, hence the massive turn-out, like never before, during the voter registration exercise.

The deluge of Nigerians, particularly the youth population that trooped to the various registration centres to get registered with the INEC in preparation to cast their votes during the election was unprecedented.

Never in Nigeria’s chequered political history has the youths in particular, and Nigerians in general, shown such level of interest in the political process.

But, that happened because INEC introduced the BVAS, and going by what was expected of the new technology, Nigerians were confident that the era of foisting unpopular candidates on them was over. They were hopeful that their votes would count and their collective will be respected.

Regrettably, however, the new technology reportedly did not function maximally in so many places during the election. The machines became ineffective in many polling units across the country, and where they functioned well, the election results were credible.

So, all hopes were shifted to the tribunal, where Nigerians had thought that the sanctity of the BVAS would be upheld.

DAILY POST, however, reports that judgements coming from different tribunals across the country have not been in favour of the BVAS, especially in the area of electronic transmission of results.

It was the same scenario with the Presidential Election Tribunal, which ruled that electronic transmission of results was not compulsory under the law.

The five-man panel headed by Justice Haruna Tsammani, said the only technological device that was mandatory for the INEC to use for the election is the BVAS for the purpose of accreditation of voters.

Justice Tsammani emphatically stated that there was nothing in the INEC’s regulation to show that the BVAS must electronically transmit polling unit results.

The Tribunal also held that the Commission’s Results Viewing Portal (IReV) was not a collation system, stressing that the judgement in the case of Oyetola Vs INEC clearly supports this.

“There is no provision for the electronic transmission of election results in the Electoral Act 2022. It is at best optional,” Justice Tsammani submitted.

The judgement has since continued to generate reactions, especially what it holds for future elections.

It is widely viewed that the judgements coming from the tribunals have exposed the lacuna in the Electoral Act.

A legal practitioner and former National Chairman of the All Progressives Grand Alliance (APGA), Maxi Okwu, told DAILY POST that the PEPT judgement about the BVAS cannot stand.

“Check it against that of the Osun State Governor, Adeleke which went on to the Supreme Court. I believe that at the Supreme Court, no matter what may be the Nigeria factor or public policy, the judgement will be tinkered with, if not taken down,” he said.

He noted that the judgement has distorted the country’s jurisprudence but expressed hope that going by the past judgement of the Supreme Court on a similar issue, the verdict would be taken down when it gets to the apex court.

He lamented that if the judgement was allowed to stay, it would definitely negatively affect the people’s participation in future elections.

“The fact of the matter is that the judgement is a major dent on the improvement of our electoral process.

“If it is not taken down, nobody will come out in the next election; it will be left for the INEC and the courts to decide who will rule Nigeria.

“So, I believe that for the interest of this country, the judgement will be adjusted at the Supreme Court to come back in line, especially those areas that seem to have gone contrary to what the Supreme Court has earlier said, which are known to be against the rules of precedent.

“I don’t think it will stand and that is why I want them to go to the Supreme Court.

“I think the Supreme Court will make necessary adjustments and restore the confidence of the people in the electoral process, otherwise, it is goodbye to genuine democracy in Nigeria,” he stated.

Also, former National President, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu said the loophole was created in the Electoral Act 2022, which did not expressly and clearly state that electronic transmission of election results from the polling units was legally mandatory.

He noted that in every election cycle in Nigeria, the legislature had managed to embark on legislative reforms to meet the exigencies of the time, but lamented that in the 2023 election cycle, they left an important aspect of the electoral law like the electronic transmission of election results to the discretion of the INEC.

“What I think was missing was to leave the adoption of technology; that is the IReV and uploading of results instantaneously to the discretion of the INEC.

“You will recall that that aspect of the electoral process was found in the guidelines for the elections, which was produced by the INEC itself, and it was made desirable, not a mandatory provision and that became the lacuna.

“So, when the issue came up frontally, the youth who quadrupled the number of interested electorate, believed that the adoption of that technology would secure and guarantee their votes.

“What should be done moving forward is to insist that the legislation should first be moved into the Electoral Act, if not part of the constitutional requirement, and made mandatory; the word in law is peremptory, in a way that they cannot have any escape route.

“In other words, they cannot manipulate or circumvent it. It is because it was left in such a nebulous state that the court was able to read and impute meanings into it.

“If it was clear, positive and direct as it ought to be that it shall be the responsibility of the INEC that after a certain time frame, all over the country, the results as collated from the polling units shall be transmitted to the INEC portal through BVAS.

“When you don’t do that, it creates room for the ambivalence that we are suffering now, and dashing the hope of the Nigerian people.

“We must also find a way of moderating people’s expectations. Election is a contest and somebody must win. So, all of these vibrations that you hear come from where people are very strong; if you slip the coin to the other end where they are weak, the argument is almost balanced,” he said.

On his part, a former member of the Katsina State House of Assembly, and chieftain of the All Progressives Congress, APC, Hon Yusuf Shehu, said INEC confused the PEPT judges into delivering the judgement about the BVAS.

He came down on the electoral body for deceiving Nigerians.

“First and foremost, INEC just played on our intelligence because the assurance given to Nigerians in respect of the BVAS technology was not what happened during the election.

“Secondly, there is a contradiction between INEC and the tribunal about the BVAS. Before the election, INEC gave us the impression that the BVAS was very effective; unfortunately, the BVAS could not work effectively in many areas and they resorted to manual accreditation, and that was one of the factors that questioned the credibility of the election.

“What the tribunal did was just the ‘Nigeria factor’ because INEC did not cooperate fully with the petitioners’ legal counsels. And that is why the judges were handicapped to decide on some issues.

“The INEC was quite aware that the BVAS had failed and instead of providing all the necessary evidence that the petitioners and their witnesses could have used to validate their position on the ineffectiveness of the BVAS, INEC declined.

“That was what made the judges to be handicapped and they had no choice but to give the verdict they gave on the BVAS,” he stated.

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