Osun Tribunal Puts INEC on Edge over BVAS

The judgment of the Osun State Election Petitions Tribunal nullifying the election of Ademola Adeleke as governor of the state and declaring Gboyega Oyetola validly elected as governor, has raised many questions over the credibility of the much-touted Bimodal Voters Accreditation System, which the Independent National Electoral Commission described as the game changer for the 2023 general election, Ejiofor Alike writes

It is no longer news that the Osun State Election Petitions Tribunal sitting in Osogbo, penultimate Friday, annulled the July 16, 2022 governorship election that brought Governor Ademola Adeleke of the Peoples Democratic Party (PDP). What is now news is the credibility and efficiency of the technology deployed by the Independent National Electoral Commission (INEC) for the election – Bimodal Voters Accreditation System (BVAS) – which it has described and touted as the game changer for the 2023 general election.

In the poll as announced by INEC, Adeleke had polled 403,371 votes against Gboyega Oyetola of the All Progressives Congress’ (APC) 375,027 votes. The PDP candidate was victorious in 17 of the 30 local government areas in the state governorship poll. The remaining 13 local government areas went to Oyetola.

Oyetola had filed a petition at the tribunal challenging the declaration of Adeleke as winner of the election. He asked the panel to nullify the election, relying on alleged over-voting, infractions in some polling units, and the authenticity of the West African Examination Council (WAEC) certificate presented by the PDP candidate, among other grounds.

While it found Oyetola’s arguments on Adeleke’s certificate as lacking in merit, the tribunal agreed that the PDP was declared winner in error owing to over-voting in some polling units.

All through the sitting of the tribunal, analysts posited that the technology INEC deployed for the gubernatorial poll – BVAS – was on trial.

Explaining what BVAS is, as well as its importance to elections, Sections 47(2) of the 2022 Electoral Act says that to vote, the presiding officer shall use the smart card reader or any other technological device that maybe prescribed by the commission for the accreditation of voters to “verify, authenticate the intending voter in the manner prescribed by the commission.”

At the point of introducing the device to Nigerians, INEC had painstakingly explained that BVAS was an electronic device designed to read Permanent Voter Cards (PVCs) and authenticate voters – using the voters’ fingerprints – in order to prove that they are eligible to vote at a particular polling unit.

The commission said BVAS usage entails either scanning the barcode/QR code on the PVC/Voter’s register or entering the last six digits of the Voter Identity Number or typing in the last name of the voter by the Assistant Presiding Officer (APO 1) to verify and authenticate the voter.

INEC guidelines say BVAS shall be the only mode of accreditation for the purpose of the election. All voters were subjected to it before they were issued with ballot papers to vote.

After elections, the results were then collated and entered manually on INEC form EC8As. More importantly, the number of voters on INEC Form EC8A must never exceed the number of accredited voters on BVAS. If that happens, over-voting would be established and the implication is automatic cancellation of the result of the affected polling unit as prescribed by the Electoral Act 2022.

Thus, when a winner was declared at the end of the July 16, 2022 governorship election in Osun, it was assumed that the numbers of accredited voters and eventual voters on BVAS and Form EC8As respectively tallied. Going by this innocent assumption, it was widely thought that Adeleke won and Oyetola lost.

Preparatory to filing their petition at the tribunal, APC had applied for the BVAS report and Form EC8AS days after the winner was declared. The legal team needed to study the documents to see if there were loopholes they could argue at the Tribunal. Though the APC was convinced that irregularities occurred during the election, what needed to be established was the mode and shape the irregularities took. The answer to this, the APC and Oyetola believed, lay in a proper scrutiny of the documents obtained from INEC. Alas, from the Certified True Copy (CTC) BVAS report made available to Oyetola and the APC about three weeks after the July 16 governorship election, accreditation through BVAS was less than the number of votes cast in 749 polling units across 10 LGAs as declared by INEC.

During its sittings, the Tertsea Aorga Kume-led panel admitted and marked 976 BVAS machines as exhibits. Oyetola’s counsel, Akin Olujinmi (SAN) alleged that in some polling units BVAS was not used, and this enabled irregularities to take place.

Justice Kume deducted the over-voting observed from the votes scored by the candidates and declared that Oyetola won the election, having polled 314, 921, while Adeleke’s score came down to 290, 266.

According to the judgment, all parties admitted that “BVAS machine is the primary source of the results which were analysed.” The verdict also established that the Voters’ Register has no place in the present dispensation with the enactment of Electoral Act 2022. 

He said issuance of two different BVAS reports to the petitioners and the respondents by INEC amounted to tampering with documents. The chairman said, the BVAS report issued to the petitioners clearly showed that there was over-voting in the result declared by the INEC.

According to the panel, none of the witnesses of the respondents disputed the evidence of the petitioners as regards over-voting on the BVAs report, just as the INEC did not withdraw the BVAS report issued to the petitioners.

The panel further ruled that the arguments of the respondents that the BVAS reports issued to the petitioners was “unsynchronised and inchoate” was misconceived, as such claims were not shown on the report.

It recommended that to forestall manipulation of BVAS machines in the conduct of subsequent elections, the INEC server should be linked to the Nigeria Police server and linked with National Security Adviser for transparency, saying any of the reports emanating from these sources can be subjected to investigation.

But in a dissenting view, Justice P. Agbuli opposed the ruling, saying that the petitioners placed their evidence on the Biometric Voter Registration (BVR) obtained on July 27 and paid for on July 28, 2022.

Justice Agbuli held that relying on exhibit BVR to reach the conclusion of the judgment is not reasonable.

According to him, “it is remarkable to note that the petitioners did not controvert the exhibit RBVR series and the report of physical inspection, that is exhibit RWC, they stand unchallenged and I so hold.

“Exhibit RWC is a document made from the time resources which are the machines used on Election Day. The exhibit on RWC is in existence and was there on the machine date of the election. Section 64 sub 4,5 and 6 of the electoral act recognized BVAS machines as a key material to be used in the collation of results and in the resolution of any dispute arising therefrom.

“The petitioners are not saying that the entries on exhibit RBVM series which is the machine itself are not the same as the entries in exhibit RWC, their grouse is that since exhibit RWC came from the same first respondent it will not be allowed to stand in view of the discrepancies of figures in them via-a-vis the entries.

“In view of the following I hold that exhibit BVR is a product of inadequacies and cannot be the best evidence for the determination of the accurate number of accredited voters on the 16th July 2022 election. The same is true of exhibit RBVR; the best evidence to that regard is RBVL, 1-119 down to RBVL 1-59 used in the polling units under contest and I so hold”, he added.

He then struck out the petition and upheld the election of Adeleke as the governor.

While many observers have been questioning the role of BVAS machine in ending irregularities in elections, others have faulted INEC for not properly prosecuting, defending and justifying the use of BVAS in Osun at the tribunal, they always faulted for allowing the APC to catch it unaware before it synchronized the BVAS with the electoral register. “INEC messed up the case at the Osun State tribunal. It failed to properly defend the election it conducted. Can you imagine that? It was supposed to put its house in order before allowing the APC to have access to every document and technology used for the election. But it didn’t do that.

“If it doesn’t learn any lesson from what has happened in the Osun case, be sure that there would be chaos by the time the election tribunals begin to annul victories after the 2023 elections,” a Senior Advocate of Nigeria (SAN) who didn’t want his name mentioned told THISDAY.

However, a former Director of Voter Education and Publicity of the INEC, Mr. Oluwole Osaze-Uzzi, has argued that the majority judgment was based on an incomplete report obtained by the APC.

Speaking on a live programme of a national television state, Osaze-Uzzi said the discrepancy in the election, as it related to the BVAS, was owing to the fact that the APC obtained an incomplete report upon which the judgment was based.

“The second member [of the tribunal] – the Honourable Justice who dissented from his two colleagues – said, ‘I would rather use the primary source of this information, and the primary source of this data is actually the machine itself.

“It is basically a computer. So, rather than go to the server where it transmitted data, I would use the printout from the machine itself,” he said.

He added, “The machines were tendered, so were the reports from the server, and there ought not to have been a discrepancy, but somewhere along the line, not all the data had been transmitted at the time the APC obtained the certified copy of the initial server report.”

“It was BVAS that exposed that as it were, and the fact that the BVAS report was relied on. But we have to be careful; which of the BVAS reports was relied on? Was it what was transmitted to the server – to the backend – or was it the BVAS itself?”, he further stated.

He said there was a need to break the verdict of the tribunal, adding that the majority of the tribunal members – “the chairman and the second member” – relied on the initial report and the initial report of the backend, duly certified by INEC.

Osaze-Uzzi explained that the APC obtained a certified copy of the initial server report; the remaining data was transmitted by the BVAS hardware.

“It was downloaded from the server [after it was] transmitted. But a couple of days later – INEC used the word ‘synchronised’, I’m not too sure I like that word, but – you synchronise it and say, ‘Have all the results been transmitted – has all data been transmitted from the machine, BVAS itself, to the server?’

“The machine is a physical one and then it transmits to a physical one. It now went, checked and said, ‘There’s a problem here.’ The BVAS report now downloaded itself, [we] now brought it out and examined each BVAS machine and found out that no, some data was not transmitted to the server,” the ex-INEC director said.

Osaze-Uzzi, however, encouraged stakeholders to be optimistic about the use of BVAS as it exposed the over-voting in the election as ruled by the tribunal.

He described the judgment as a validation of the role BVAS has played in enhancing the electoral process.