How BVAS Exposed Over-voting During 2022 Gubernatorial Poll in Osun
Ismail Omipidan analyses the recent judgement delivered by Osun State Election Petition Tribunal which upturned the election of the Peoples Democratic Party’s candidate, Senator Ademola Adeleke, as the governor of the state during the July 22, 2022 gubernatorial poll
When in August 2022, I announced to the whole world that in Osun state, my Principal, Adegboyega Oyetola, did not lose the July 16, 2022 Governorship election, but only lost the vote count, some Nigerians, especially sympathisers of the Peoples Democratic Party, PDP, were furious. They called me names. But they could not marshall any reasonable argument to disprove my position.
So, last Friday’s judgement of the Osun State Election Petition Tribunal, for me, is a vindication of my position prior to the 2018 governorship election that majority of Osun citizens, who are reasonable, knowledgeable and who value education could not have voted for a man, who is better known as a ‘dancecraft’
Similarly, the outcome of the Tribunal is equally a vindication of my August 2022 postulation that we only lost the vote count and not the election.
Contrary to the claims of the interim Governor and his cohorts, three of the judges agreed on the fact that he forged his certificate, while two concurred that there was indeed over-voting in the July 16 Governorship election.
And in accordance with the Electoral Act, the invalid votes were separated from the valid ones and Oyetola was declared as the validly-elected Governor of Osun State.
Therefore, issue of “Member 1” and “ Member 2” being propounded by Senator Ademola Adeleke, Kolapo Alimi and the rest only exists in their imagination. It is a pity that the interim Governor does not know and those we thought should know ended up misleading the poor man.
In the lead judgement, which was over 90 pages, “we” featured prominently to indicate that the position reached were arrived at by two or more persons. Similarly, the dissenting judgement, which was just eight pages, “I” featured prominently to indicate he was alone in that decision.
How Senator Ademola Adeleke’s men were able to confuse him that an eight-page judgement can be used to upturn an over 90 pages of sound and scholarly judgement, which are well grounded in law and facts, remains a mystery to me.
How the Tribunal arrived at its conclusion
Before delving into how the Tribunal arrived at its conclusion, I wish to deal with the issue of forgery as established by the Tribunal.
Recall that Oyetola and APC approached the Tribunal on two fundamental grounds: One, that as at the time Senator Adeleke was contesting, he was not qualified. Two, that he did not score the lawful valid votes.
According to the Tribunal led by Justice Tertsea Kume, APC and Oyetola were able to prove forgery case against Governor Adeleke as EC9, which is the affidavit in support of personal particulars about the governor told “a lie about itself.”
The three justices of the Tribunal went further to hold that “clear reading of the above reproduced section of the Criminal Code and exhibit EC9 reproduced above reveals that EC9 tells a lie about itself. See ACN vs. Lamido (2011) LPELR-91741 (CA) 1 at 79 80 paras C- A, and 80 81 paras F- A.
“In that regard, forgery of the said documents presented by the 2nd Respondent (Ademola Adeleke) to 1st Respondent (INEC) has been proved.
“The same consequence applies to FILE D in so far as the contents therein relate to ‘Osun State’ that was not in existence before 1991. See PDP v. Degi-Eremenyo (2021) 9 NWLR (Pt. 1781) 274 at 292 paras A-C cited by learned counsel for the Petitioners.”
The Tribunal Justices went further to hold as follows: “The question, however, is whether having found forgery in parts of exhibit EC9 and FILE D, the 2nd Respondent (Ademola Adeleke) is exonerated by exhibits 2R.RW6 and 2R.RW9. We think he is. It would have been otherwise if no other qualifying certificate of attendance at an institution had been presented to 1st Respondent for the election.”
As a layman, the mere fact that the Tribunal only says they “think,” shows that this is another potent pendulum that could swing against the interim Governor at the appellate court. Reason being that, the additional qualifications which were the basis of what I want to refer to as his temporary respite in the issue of qualification, was acquired using the O’Level that has been proven to be forged.
Therefore, if we go by the popular axiom, you cannot build something on nothing and expect it to stand. It goes without any further probing that the interim Governor is yet to be let off the hook as far as his qualification to stand for the election is concerned. He can be disqualified for submitting a forged document as contained in his file with INEC.
But let’s go back to the issue of over-voting. The Electoral Act is clear. To make a return as to the announcement of the results of election, the presiding officer must take into account what the BVAS transmitted, which is in the back end.
In this instance, Senator Ademola Adeleke was declared winner of that election by the INEC on July 17 based on the figures the BVAS transmitted. It was these figures the APC and Oyetola applied for and got from the INEC.
After filing their petitions, the PDP rushed to INEC and obtained what was later referred to as a “synchronised” BVAS report. Assuming without conceding that there should be a synchronised BVAS report, the next question to ask, which I raised in September is: on what basis then was Adeleke declared winner on July 17?
By their stretch of argument, it means Adeleke was declared winner before “synchronisation.” Since Adeleke was never declared winner by opening the BVAS machine, how on earth will you now sway the Tribunal to accept that?
At any rate, even in that one too, the expert hired by Adeleke, Samuel Oduntan, to analyse the BVAS machine also admitted before the court that there was over-voting. The only difference is that he said it was discovered in only six polling units.
But during the cross-examination, APC and Oyetola’s counsel were able to prove to him that apart from the six he claimed over voting occurred, there were others.
“Under the supervision of the Independent National Electoral Commission (INEC) I conducted the forensic analysis of BVAS machines. I then analysed the result with form EC8A series. My report didn’t determine who won or lost. I only gave the figures. I observed over-voting in six polling units. I was paid for the job. But it does not affect the figures and facts in my report”, he said.
Under cross-examination by petitioner’s counsel, Akin Olujinmi (SAN), Odutan while being confronted with his witness statement and the BVAS report (Exhibit RBVR) on accreditation figure in Ward 4, unit 7, said, “in my witness statement, page 7, serial number 138, the accreditation figure as extracted on BVAS machine is 388, but on exhibit RBVR, it is 313.”
But because it is difficult to cover up lies, even in the synchronised BVAS report presented before the Tribunal by INEC, the APC and Oyetola’s legal team were able to prove over-voting in over 100 polling units across the 10 Local Government Areas (LGAs) which they were challenging.
What is more, INEC, the beneficiary (Adeleke) and the PDP, which sponsored Adeleke could not even agree on the BVAS reports they presented before the Tribunal. This was what led Adeleke’s counsel to disown even the synchronised BVAS report INEC presented to the Tribunal.
Again, INEC witness, who testified before the Tribunal did not disown the BVAS report given to Oyetola and APC and she admitted under cross-examination that there was indeed over-voting in that election.
Take note that apart from the BVAS report obtained by APC and Oyetola, all other BVAS reports were generated after the petition had been filed and served. Therefore, it was easy to conclude that they were products of afterthought.
And the Tribunal reiterated the above position when it said: “Moreover, exhibit BVR (given to Oyetola and APC) has not been withdrawn by the first respondent (INEC), who made and issued it. The petitioners relied on exhibit BVR in maintaining this petition.
“Similarly, the exhibit tendered by the respondents after exhibit BVR submitted by learned counsel to the petitioners were thought of after the declaration of result on the 17th day of July, 2022.
“The said conduct of the respondents, especially, the first (INEC) respondent amounts to tampering with official records. The conduct of the first respondent in the said election under consideration has produced multiple accusation report, contrary to votes declaration, to conduct of free, fair and credible elections on the basis of one man or woman with one vote.”
The Tribunal further said: “In other words, the defenses of the respondents are tainted with fundamental flaws, irreconcilable and unreliable, incapable of defeating the credible evidence tendered by the petitioners in respect of the 744 polling units where over voting has been established.”
While I agree with INEC and most Nigerians that nothing is wrong with BVAS, I however make bold to say that a lot is wrong with the operators, especially those who came up with the idea of synchronisation. For me, all stakeholders interested in deepening our electoral system and democracy must devise means to tackle synchronisation of BVAS report before the presidential and National Assembly elections.
May I leave my readers with the snippets from one of the observer groups, Northern Patriotic Front (NPF) that observed the July 16 Governorship election.
In the media report I read on July 25, 2022, the group, among other things, said: “Between Sekona roundabout and Edunabon, there were no checking points nor patrol of any security personnel in that axis.
“According to the electoral guidelines, the official close of voting at polling units is 2:30pm. In most of the polling units visited and as reported by the NPF observers, voting was concluded at various polling units across the State by 2:30 pm in accordance with the electoral law as amended 2022.
“However, this was not followed in some of the polling units in Ede axis where voting was still going on till around 9:00 pm. This is clearly against the provision of the Electoral Act. This anomaly was also reported by some other observer groups’ analyses in the media.
“The conduct of election in Ede South and Ede North areas should be investigated to assist the commission in preventing admitting voters to queue after the stipulated time,” NPF added.
-Omipidan writes from Ila Orangun, Osun state
