In a 2023 article by BusinessDay on the “Four Areas where Legal Action will Spring from in 2023”, one area that will essentially attract legal action is the 2023 general elections which will be held from February 25. The new electoral law which came into force in 2022 brought with it some innovations to improve the conduct of elections in Nigeria. While some of the innovations in the new law have already been tested since 2021, the incidents at the 2022 Osun election and the verdict of the election tribunal brought about a rethink on some of these innovations already deployed by the Independent National Electoral Commission.
Among other innovations, the Bimodal Voter Accreditation System (BVAS) is expected to improve the transparency of election results and increase public confidence in electoral outcomes in recent elections. INEC claims that the technological advancements in the new law will address the ten most common problems in Nigeria’s election result management process. These include falsification of votes at polling units, falsification of the number of accredited voters, collation of false results, swapping of result sheets, forging of results sheets, snatching and destruction of result sheets, mutilation of false results and computational errors, obtaining declaration and return involuntarily premature declaration and return while collation is ongoing and, poor record-keeping. In summary, issues such as over-voting can easily be noticed and effectively tackled.
However, the over-voting issues at the Osun gubernatorial elections and the subsequent overturning of the results at the Elections Tribunal, have given cause for pause. Does BVAS really reduce the incidences of over-voting and does the decision of the tribunal augur well for the outcomes of the 2023 presidential elections, if over-voting does happen?
The Oyetola v Adeleke case
Given Nigeria’s election petition track record, it was predictable that the case between Adegboyega Isiaka Oyetola, the governorship candidate of the All Progressives Congress (APC) against the Independent National Electoral Commission and Adeleke Ademola of the Peoples Democratic Party (PDP) would take place since an incumbent was removed.
Oyetola was Osun state’s incumbent governor during the July 2022 elections. He lost to Ademola Adeleke who had the popular vote of 403,371 votes out of the 778,398 total votes cast in the election. This amounted to Adeleke clenching about 50.14 per cent of the votes cast.
Oyetola’s petition was based on three grounds: Adeleke was not qualified to contest the election at the time of the election; he was not duly elected by the majority of lawful votes cast at the election as there was over-voting in 744 polling units, and that the election of Adeleke was invalid by reason of non-compliance with the provisions of the Electoral Act 2022. Oyetola prayed the tribunal to cancel the results in the 744 polling units and declare him (Oyetola) the winner or “in the alternative and only in the alternative” cancel the election for substantial non-compliance and order the INEC to conduct a fresh election.
The election tribunal, chaired by Honourable Justice T.A. Kume, and sans a dissenting vote, held that Adeleke who was declared the winner at the election did not score the majority of lawful votes cast, hence, his declaration as governor was null and void.
According to the tribunal majority, for a case for over-voting to be established, the petitioner only had to prove that the votes cast in a polling unit exceeded the number of accredited voters in that polling unit.
During the proceedings, the Peoples Democratic Party witness who is a statistician and forensic expert acknowledged over-voting in six polling units but stated that it was not significant enough to alter the election results. At the cross-examination, an INEC official (since INEC was a party in the action) also admitted to over-voting. In their decision, the majority stated that the evidence presented by the petitioners spoke for itself and relied on the INEC-issued BVAS accreditation report, which was not disputed.
Once this was established, Justice Kume went further to mathematically deduct the excess votes cast at polling units where over-voting occurred. The judges stated that both Oyetola and Adeleke benefited from the over-voting and cancelled 181,540 votes from 744 polling units in 10 local government areas. Adeleke was affected more greatly as these units were mostly in his stronghold, resulting in the loss of 112,705 votes compared to Oyetola 60,096.
Adeleke’s votes were reduced from 403,371 to 290,266 during the deduction, while Oyetola’s votes decreased from 375,027 to 314,921. Based on this, the tribunal declared Oyetola the election winner and instructed INEC to revoke Adeleke’s certificate of return. The tribunal also ordered that the revoked certificate of return be issued to Oyetola.
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Is The Bimodal Voter Accreditation System (BVAS) reliable?
According to section 47 (2) of the Electoral Act 2022, “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”.
The Bimodal Voter Accreditation System in Nigeria is a method used to verify and accredit eligible voters during elections. It involves the use of two modes of verification, such as a biometric verification system (fingerprint or facial recognition) and a manual verification system (using a voter card or passport). The goal of the bimodal system is to enhance the accuracy and transparency of the voter accreditation process and prevent electoral fraud.
Prior to the election day, voters are pre-registered and receive a Permanent Voters Card which makes them eligible to vote. Their personal information is recorded on the BVAS with INEC. On election day, the voter’s PVC is scanned and BVAS confirms whether or not the voter’s information is in the system i.e whether they pre-registered. If the voter’s name is in the system, BVAS automatically ticks and confirms on the system that the voter showed up to vote at the polling station. Once this is confirmed the voter is given permission by INEC officials to officially go into the voting booth, and vote manually by thumb-printing a ballot sheet. Where a voter is not accredited by BVAS, he is not to be given permission by the INEC official to vote.
Before the election commences, the INEC official presents each party’s agent with a document containing the number of registered voters for that unit. After voting is completed and the manual votes are tallied, the INEC official provides a document, Form E to the party agents showing the number of votes and how many votes went to each party. Ultimately, the number of voters pre-registered, the number of voters accredited by BVAS, and the number of actual votes (based on the ballot sheets) must correspond. Where there are more actual votes than that accredited by BVAS, over-voting has occurred.
The crucial question then is if these checks are in place, how does over-voting occur? Mike Igini, the former Akwa Ibom State Resident Commissioner of INEC, speaking on the judgment the technology was an offshoot of the smart card reader, earlier deployed for previous elections.
“This is a more sophisticated technology for accreditation and result upload and every presiding officer is expected to sort out the ballot, count and enter total number of votes scored and accredited on the result sheet called Form EC8A.
“Thereafter, he will sign and ensure that it is countersigned by party agents who are entitled to duplicates of same result.
“The presiding officer must thereafter, upload the data from the BVAS, including the number of accredited voters and send same to the INEC Server.
“But by design, the BVAS whenever it is idle will upload accredited data on its own, particularly during the period the presiding officer is busy sorting and counting ballot papers.
“Thus, if for example, at the end of the poll, there was two hundred and fifty total accredited number of persons but the BVAS offloads a total of 200 of the 250 with their unique voter identification number (VIN) and the presiding officer fails to ensure that the remaining fifty (50) data is pushed (uploaded) into the server, then the record will indicate over-voting.
“Now, where any of the candidates that participated in the election applies for a certified true copy of the report of what has been uploaded so far from the Server backend in order to file or maintain his petition, any such certified true copy that obviously reflects inchoate accreditation data uploaded while the BVAS was idling; that is, the 200 number instead of 250, which is the final actual total accredited voters on the form EC8A, will give an erroneous impression of over voting.
“But unfortunately, this is not true. That is why the INEC or better still, the presiding officer has much responsibility to ensure that these lapses are eliminated
But when the physical audit of the BVAS is carried out and the 50 remaining numbers of accredited data is added, it will be 250 numbers of accredited voters, which tallies with the form EC8A.”
By this then, perhaps the INEC officer did not notice that the upload was interrupted and an untallied result was presented to the party agents. However, this raises another question: shouldn’t a cursory examination of Form EC8A by the Presiding Officer reveal that over-voting had happened?
The tribunal in its judgment acknowledged that INEC officials gave conflicting accounts of the number of accredited voters, which the majority ruling described as “tampering with official records.” The ruling stated that INEC’s actions in the election in question raised serious concerns, as they resulted in multiple, inconsistent reports, contradicting INEC’s commitment to holding free, fair, and credible elections.
A look at the Tribunal’s majority judgment
The Electoral Act in section 51 (2) defines over-voting in a polling unit as “where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit. Where over-voting occurs in a polling unit, the law provides that the “presiding officer shall cancel the result of the election in that polling unit”. Effectively, where there is over-voting in a polling unit, all the votes cast in that polling unit will be cancelled as if there were no elections conducted in that polling unit.
Justice Kume, Chairman of the election tribunal, however, found it more prudent to subtract the excess votes collated during the election to arrive at his decision. So, the judge in his discretion, instead of cancelling the votes at the polling unit, deducted the excess votes recorded in those polling units to declare that Adeleke, the current governor was not the winner of the election, although there is no report of any evidence produced during the proceedings that indicated which of the votes cast during the elections belonged to non-accredited voters.
The judgement of the court reads “from the examination of the evidence of the parties, we find as a fact that over-voting occurred in the election conducted…the duty of the tribunal is to deduct the said invalid votes from the lawful votes to determine who had a majority lawful votes”.
Foregoing the fact that this judicial approach is an alternative take on the verbatim provisions of the Act, the question, again, is how did the tribunal decide which of the votes were ineligible and worthy of subtraction? What does this sweeping deduction of votes (presumably inclusive of legitimately cast votes) mean for the future of election petitions? And can we say that the current result is a true reflection of the electoral will?
Conclusion
Democracy is arithmetic only on a quantum level, as it involves counting the population, their votes, and their finances. Through the counted votes, leaders acquire the legitimacy to count and account for the people’s money. This concept relies on political proficiency and institutional ethics of honest counting and accounting. In all three endeavours of counting the people, their votes and their money, Nigeria’s abysmal performance has been quite pungent. Nigeria is more adept at inventing numbers than counting them. Thus, democracy in Nigeria has never been about honest counting and accounting but a game of numbers. It is a common occurrence in elections for figures that do not reflect the true number of votes cast to be reported across the country. Hence, the struggle for a better system of vote management during elections.
While the fallibility of humans and systems cannot be discarded in totality – inferences of BVAS or human lapses less than 20 days before the presidential election pokes holes in the electorate’s hopes for Nigeria’s quivering democracy
