INEC: No Act of Infraction Substantial Enough to Nullify 2023 Presidential Poll

•Argues same constitutional provisions apply to states, FCT on 25 per cent in 24 states, insists Tinubu won

•Atiku contends that election petitions put judiciary on trial 

•APC: Tribunal lacks necessary jurisdiction to entertain petition on Tinubu’s qualification, Obi has no locus standi

Chuks Okocha, Alex Enumah in Abuja and Segun James in Lagos

The Independent National Electoral Commission (INEC), yesterday, came out strongly to defend the election of the presidential candidate of the All Progressives Congress (APC), Bola Tinubu, in the February 25 election, saying alleged infractions not substantial enough to nullify the exercise.

INEC, which responded to petitions by Peoples Democratic Party (PDP) and its presidential candidate, Atiku Abubakar, argued that the same 25 per cent in 24 states constitutional requirement that applied to the 36 states of the federation, applied to the Federal Capital Territory (FCT), insisting therefore that Tinubu won the election.

In the petition filed by its lead counsel, Mr Abubakar Mahmoud, INEC, while intervening in the controversy that trailed the alleged abuse of the Bimodal Voter Accreditation System (BVAS), stated that the machine was not designed for real-time results transmission for collation purposes. Mahmoud added that INEC’s Results Viewing Portal (IReV) was not designed and intended for collation of results either.

But Atiku, yesterday, said the controversial results of the February 25 presidential election had put the entire judicial system of the country on trial, as the global community watched its handling of the various petitions against the conduct and outcome of the poll.

Atiku gave what he dubbed “empirical evidence” of how the presidential election results were manipulated in favour of the presidential candidate of the governing All Progressives Congress (APC), Bola Tinubu. He claimed that the cancellation of some 51,602 polling units altered the poll results in favour of APC.

The leadership of APC also rose in stout defence of Tinubu’s victory. It said, contrary to the allegations by Atiku and the presidential candidate of Labour Party (LP), Mr. Peter Obi, the presidential election was conducted in substantial compliance with the Electoral Act, 2022. APC insisted Tinubu won.

APC also claimed the alleged unlawful nomination of its vice presidential candidate, Senator Kashim Shettima, and the allegations of conviction involving the president-elect were issues outside the jurisdiction of the election petition tribunal.

INEC, while maintaining the sanctity of the February 25 presidential election, insisted that the declaration of Tinubu as president-elect was in total compliance with the constitution, Electoral Act, 2022, and INEC’s Regulations and Guidelines for the Conduct of Elections 2022.

Responding to the petition filed by Atiku and the PDP, INEC claimed, “No act of non-compliance (if any) was substantial enough to have affected the outcome of the election or result declared.”

In the petition filed by Mahmoud, the electoral umpire stated that the election of Tinubu was valid and not marred by reason of corrupt practices, as alleged by the petitioners. It pointed out that at the time of the election, Tinubu was qualified to contest, having met the requirements of the Constitution of the Federal Republic of Nigeria 1999 and the extant Electoral Act.

INEC stated, “That the summation of the result declared is consistent with the number of duly accredited voters. There was no act of infraction, as alleged by the petitioners, that is substantial enough to nullify the election.”

INEC claimed that it had since 2011 made concerted efforts to improve the quality of elections by the use of appropriate technology and technological devices, such as Permanent Voter Card (PVC), Electronic Voter Register (EVR), and (BVAS), among others, to enhance the ease, credibility, transparency and integrity of the electoral process. It told the tribunal that the BVAS machine “was not designed for real time transmission of election results for the purpose of collation.”

The commission stated that the public statements credited to its chairman and other officials referred to in paragraph 19 of the petition were statements assuring the public of its commitment and determination to continue the use of technology and technological devices to enhance the quality, transparency, integrity and credibility of the electoral process as provided under the Electoral Act 2022.

It stated, “Contrary to the assertion of the petitioners in paragraph 19 of the Petition, the 1st Respondent has no electronic collation system by which real-time transmission of polling unit results was to be made or that such alleged electronic transmission of polling unit results was to form the basis for the collation of results at various collation levels.

“The 1st Respondent further states that although it is empowered by the Regulations to prescribe an ‘Electronic Collation System’, none was prescribed by it for use during the 2023 general election, including the presidential election of 25 February 2023.”

INEC further pointed out that its Results Viewing (IReV) Portal was created to give its officials and the general public access to the National Electronic Register of Election Results for validation of results uploaded using the BVAS device, adding that the IReV was not designed and intended for collation of results.

INEC claimed that despite the technical glitches experienced on election day with regard to upload of polling unit election results of the presidential election of February 25, 2023, it kept its promise to Nigerians in conducting free, fair, transparent and credible elections by deploying the BVAS device in conducting accreditation of voters electronically and uploading of scanned copies of polling unit election results to the IReV portal.

While submitting that the presidential election was devoid of any form of manipulation or favouritism on its part, INEC averred that it had no electronic collation system.

The commission stated, “Collation of election results both under the Electoral Act and the 1st Respondent’s Regulations was meant to be manual. Further, the 1st Respondent states that the 2nd Respondent was rightly returned as winner having scored the highest number of the lawful votes cast at the election, which results were collated manually in the presence of party agents, including the petitioners.

“The 1st Respondent states that uploading of election results to the IReV portal is NOT a condition precedent to the declaration of the winner of an election under the Electoral Act. The Act does not require the 1st Respondent to transmit results to the IReV portal before determining or declaring the winner of the presidential election.

“The 1st Respondent states further that it had all the physical hard copies of the results sheets from which it collated and tabulated the scores of the candidates. It states further that the result sheets were uploaded via its e — transmission system to the IReV portal.”

Responding to the petitioners’ claim that it erred in law, when it declared Tinubu winner of the election, having failed to score 25 per cent of votes cast in the FCT, INEC submitted that the provisions of the constitution applied to the FCT as if it were one of the states of the federation and the use of the word “AND” in section 134 (2) of the constitution indicated nothing more than that in construing two-thirds of the states of the federation in which a candidate was required to score one-quarter of the votes cast, the FCT was considered as if it were one of the states of the federation.

INEC said, “The intention of the framers of the constitution is for a presidential candidate to have a national geographical spread and broad acceptability from the Nigerian electorate and not meant to bestow a veto power on the FCT or it electorate over the election of a candidate at a presidential election, who has otherwise scored one quarter of the votes cast in two-thirds of the 36 states, except in the FCT.

“The 1st Respondent further states that the Federal Capital Territory, beyond being the capital of Nigeria, has no special status over and above the other 36 States of the Federation to require a candidate in the presidential election to obtain at least 25 per cent of the votes cast in the FCT before being declared winner of the presidential election.

“The 1st Respondent shall also contend at the trial of this suit that the Federal Capital Territory is regarded as the thirty-seventh (37) State of the Federation and as such, a candidate needs to score 25 per cent of the valid votes cast in at least two-thirds of 37 States (24. 7% States) to be declared as winner in the presidential election. The 1st Respondent avers that the 2nd Respondent scored 25 per cent of the valid votes cast in 29 states of the federation as stated above.

“The 1st Respondent states that having scored at least one-quarter of the valid votes cast in 29 states, which is over and above the 24 2/3 states threshold required by the constitution, in addition to scoring the highest number of the lawful votes cast at the election, the 2nd Respondent was properly declared winner and returned as the president-elect of the Federal Republic of Nigeria.

“The 2nd Respondent, having scored 25 per cent of the valid votes cast in the 29 states listed above, has satisfied the requirement of the constitution to be declared winner of the presidential election, thus, rendering the requirement of having 25 per cent of the valid votes cast in the Federal Capital Territory unnecessary.

“The 1st Respondent pleads and shall at the trial of this petition rely on the particulars of the votes contained in all the electoral forms, including but not limited to forms EC8A, EC8B, EC8C, EC8D and, EC8E used in the conduct of the presidential election held on February 25, 2023.”

Atiku Contends Presidential Petitions Put Judiciary on Trial

At a meeting with select media houses, Director of Research and Strategy of the Atiku/Okowa Presidential Campaign, Dr. Don Pedro Obaseki, said, “They (Supreme Court and Court of Appeal) must understand that the 2023 presidential election tribunal proceeding is not just the petitioner and the respondent that are on trial. It is the Nigerian judiciary that is on trial.

“This is why I called my friends as well as those who are the fourth estate of the realm and those who must be the fore bearers of the conscience of this country, so that we begin to talk and interrogate the facts and issues that surround our petition at the tribunal and not be dwarfed in the noise the APC is dishing to the public on the election. We’ll demonstrate the real election result, not the ones that Mahmood Yakubu announced.

“It is important that we put the Nigerian judiciary on notice that the Justices of the Supreme Court and Court of Appeal, who are the primary and final arbiters in this election imbroglio, that the onus lies upon them to look at both the spirit and letters of the law and the very marginalised feelings of every Nigerian and do what is right and correct in the public domain so as to save this country and the sanctity of our commonwealth.

“I was in charge of strategy – from drafting, to curating and monitoring of the elections from all the 176,000 plus polling units across the country. I know who won, not only because the person is my principal but because the truth must be told. We can no longer continue in this brigand disregard of our people.”

Specifically, he said, “I will give a very simple example. In Zamfara State, in one of the LGAs, Atiku had 46,070 votes, Tinubu had 3,006 votes and they were written in black ink. And in the BVAS, the uploaded result, a blue ink was used in striking out the zero from Atiku’s 46,070 and arrived at 4,607 votes while using the same blue biro to add zero to Tinubu’s 3,006 to now arrive at 30,006.

Immediately, the election result in that very area was upturned by men of darkness, by men who want to see this nation that is already sitting on a keg of gun powder implode. What do you now have? A man who scored 46, 070 votes is suddenly deleted to read 4, 607, while the party that scored 3,006, a zero is added and the election result in that place is turned to 32, 060. That is the humongous monumental, devilish act by anybody.

“Nigeria is becoming the laughing stock of all comity of nations simply because a simple civic duty earnestly engaged in by millions of Nigerians had been stolen by a few, who are bent on foisting on our nation a rulership, a dictatorship via the pretences of the ballot box. This must be heard.”

Obaseki explained further, “If, for example, we have a situation of this nature, what would a recognised electoral body do? Like they did in certain instances only where it didn’t favour their preferred candidacies, you will stop the elections as it is written in the Electoral Act and prescribed in the constitution of our country.”

APC Defends Tinubu’s Victory, Wants Opposition’s Petitions Dismissed

APC, while defending Tinubu’s victory at the poll, claimed the presidential election was conducted in substantial compliance with the Electoral Act, 2022.

APC and INEC, in their separate replies, asked the court to deny Peter Obi and Labour Party (LP) all the reliefs sought on the grounds that their petition was “devoid of any merit and also founded on frivolity.”

Besides its reply brief to the petition, APC also filed a Notice of Preliminary Objection to the hearing of the petition on the grounds that the petition was incompetent and lacking merit. It added also that the tribunal lacked necessary jurisdiction to entertain the petition in the first place.

Among others, APC claimed that LP lacked the necessary locus standi to initiate the suit against the outcome of the presidential election on the grounds that it did “not present a valid candidate for that election.”

APC, in the reply filed by Mr Thomas Ojo from the chambers of Lateef Fagbemi, SAN, claimed that Obi was still a member of the PDP as at the time he was sponsored by LP.

The ruling party claimed, “The 1st Petitioner herein resigned his membership of the PDP on May 26, 2022 and joined the Labour Party the following day being May 27, 2022. The 2nd Petitioner herein conducted its Presidential Primary on May 30, 2022, which produced the 1st Petitioner as the candidate it intended to sponsor in the general election.

“By section 77(3) of the Electoral Act, 2022, the 2nd Petitioner is mandated to have submitted its comprehensive register of members to the Ist Respondent 30 days before its presidential primary. That is to say the said register of members must have been submitted to the 1st Respondent on or before 30th April, 2022.

“The 1st Petitioner as at April 30, 2022 was still a member of the PDP and his name was not and could not have been in the register of members submitted by the 2nd Petitioner to 1st Respondent.”

In another ground, APC argued that the LP and Obi petition was defective because they failed to include Atiku, who came second in the presidential election with 6,984,520 votes as against the petitioners who came third with 6,101,533 votes.

APC submitted, “For the tribunal to grant prayer (iii) of the petitioners, the tribunal must have set aside the scores and election of Alhaji Atiku Abubakar. Ahaji Atiku Abubakar must be heard before his votes can be discountenanced by the tribunal.

“The petition is incompetent for failure to join as a party to the petition the presidential candidate of the Peoples Democratic Party (PDP) Atiku Abubakar the 1st runner up and his political party Peoples Democratic Party (PDP) as a Respondent whose right would be affected by the reliefs sought in the petition.”

On the alleged unlawful nomination of the vice presidential candidate, Senator Kashim Shettima and allegations of conviction involving the president-elect, APC argued both issues were outside the jurisdiction of the election petition tribunal.

APC claimed that complaints bordering on disqualification, nomination and sponsorship of candidates for an election were pre-election matters that could not be raised or canvased before an election tribunal as purportedly done herein by the petitioners.

In addition, the APC claimed that the issue had become statute barred having not been filed within the time provided by law.

On the issue of alleged conviction and forfeiture involving the president-elect, APC said, “Facts pleaded in paragraphs 28-32 of the petition alleging conviction of the 2nd respondent in 1993 is not pleadable as fact to support grounds of disqualification of the 2nd respondent.

“The issue of forfeiture raised against the 2 Respondent in their petition are already pending before the Federal High Court in suit number FHC/ ABJ/CS/206/2023 between PEOPLES DEMOCRATIC PARTY V CODE of CONDUCT TRIBUNAL & 6 ORS and raising same before this court is an abuse of court process.”

While APC noted that the petitioners failed to supply facts in support of corrupt practices they claimed marred the February 25 presidential election, it urged the tribunal to dismiss the LP and Obi’s petition with cost for lacking in merit and being a waste of the court’s time.