March 15, (THEWILL) – As we all must have learnt from the unfortunate and nerve-wracking events of February 25 in our political space, most of our political actors, who are always ahead of the system aimed at checkmating them in their excesses, have as usual, proven to be ahead of the system aimed at reining them in.
Before proceeding further, to enable us to concentrate on the basic implications of the complicated general elections, whose outcome is casting a very dark shadow on our country, I would like to crave the indulgence of readers, to permit me to leave out the granular details of the apparent contradictions embedded in the Electoral Act 2022 to experts on constitutional matters who are already bracing up for the legal fireworks.
It needs to be pointed out that in a rather paradoxical manner, as things currently appear, technology that was introduced to solve an existential challenge with the conduct of elections, which borders on the integrity of the ballots, arising from ballot snatching and hijacking of sensitive materials etc, has created a new type of crisis.
It may be recalled that when in 2015 technology was introduced into the electioneering process via the Smart Card Reader, SCR and Temporary Voter Cards (TVC), to mitigate ugly incidents of rigging and the peril of relying on incidents forms that were provided as the alternative in situations where the smart card system malfunctions, unscrupulous politicians decided to bypass the use of the SCR and TVC for conducting elections.
Instead, they converted the incident forms, which are supposed to be the backup into the mainstream process. Thus the SCR, which is supposed to be the first line of action, became the backup.
To fix that unanticipated challenge, INEC introduced a more sophisticated solution leveraging Artificial Intelligence (AI), known as Bi-Modal Verification and Accreditation System (BVAS).
Before 2015, INEC, under the leadership of Prof Atahiru Jega, introduced biometric registration and fingerprints of voters, but it did not provide enough safeguards against voter fraud, such as accreditation and overvoting, amongst others.
The BVAS was considered an excellent solution that would help eliminate other identified issues associated with the SCR earlier highlighted.
Again, political actors have apparently perfected ingenious ways to compromise the BVAS by once again circumventing the rule that demands that it is the records of those that were accredited and voted as captured by the BVAS that should be the source of data for determining the number of voters that got accredited and voted in the respective 176,856 polling units set up by INEC across the country.
Put succinctly, data from BVAS is supposed to be the authentic raw material as it were for producing the results of the election.
As demanded by the reformed Electoral Act 2022, the backup for the use of BVAS in situations where it malfunctions, is the use of form EC8A, which is complementary to the use of the BVAS.
But owing to the disingenuous nature of some politicians who always find their way around obstacles, as was the case with SCR, the complementary line of action, which is Incident Form with regards to SCR and EC8A form, which applies to BVAS, now has become the preferred source for collating results by both politicians and election authorities.
What that implies is that public funds in excess of three hundred billion naira (N300bn), which is the hard-earned money expended by INEC on the 2023 elections, might have gone down the drain, simply because the elections umpire failed to achieve the objective for which the humongous sum was appropriated.
The assertion above derives from the fact that the BVAS, which was touted as a panacea to the incidence of fraud encountered in the past voting process, ranging from overvoting, ballot stuffing and snatching, as well as the hijacking of essential and sensitive materials such as result sheets, with which fraudulent results are produced, has turned out to produce the opposite results. It is regrettable that BVAS which was supposed to be the cure to all the identified ills in the electioneering process, except vote buying has turned out to be an antithesis of election 2023.
That is because the prime thing that the chairman of INEC, Prof Mahmoud Yakubu, promised, was the commitment that the result of the polls would be transmitted electronically from the polling units into the lNEC server or database real-time-online.
The undertaking from lNEC encouraged a lot of Nigerians, especially the youths and young at heart, who were hitherto sceptical of the integrity of our elections.
As such, they got persuaded to register and vote based on their conviction that Prof Yakubu is bonded by his promise to leverage technology and it did not look like an invitation to treat in contract law, which it has turned out to be.
But after the election was called, in the early hours of 1st of March, without relying on data obtained by BVAS driven by technology as promised by the INEC chairman, disappointed and crestfallen Nigerians, would not have any other option than to deem the promise by the electoral empire as a trick.
It is worthy of note that, although voter accreditation was carried out with BVAS, which captures the potential voter’s finger mark and facial recognition as a means of identification, unscrupulous politicians in concert with some compromised officials of the INEC have allegedly once again found ways to circumvent that technology.
Hence results recorded in the EC8A form, which is manipulatable as opposed to what is captured by BVAS were relied upon for collating the results of the election and why the recently held presidential and National Assembly elections are being disputed.
In a nutshell, it is the reason the 25 February 2023 election outcome is being alleged to have been tainted and its integrity is being contested, just as it is also responsible for the life of Nigeria as a country hanging in the balance.
While the debate on whether the issue of winning 25% of the Federal Capital Territory (FCT), Abuja, votes is also a precondition in addition to winning the highest number of votes cast nationwide and in at least 25% of the 36 states in our country before being declared a winner of the presidential contest is also raging, it is not as consequential and, therefore, not a major factor. That is basically because of the doctrine of substantial compliance with the act justified by the belief or reality that no election can be perfect.
Indeed, the 1993 contest between Chief Awolowo and Alhaji Shagari produced numbers that were not perfect, particularly with respect to the 2/3rd majority of 19 states, which the court concluded was 12 and 1/2 which was not perfect, but it met the reasonable compliance threshold.
In defence of the mandate that INEC has given him, the ruling APC’s candidate, Asiwaju Bola Ahmed Tinubu, now president-elect and his presidential campaign team, have stated that there is no compulsion to transmit the election result electronically as expected by the opposition. They also push back on winning 25% of votes in the FCT being a requirement for the mandate to be complete for consummation.
Apparently, the much-celebrated Electoral Act 2022 is nebulous and clearly requires being revisited by the 10th when it is inaugurated.
In a twist which is to the chagrin of the parties alleging that the 25 February election was rigged in favour of the declared winner, senate president, Dr Ahmed Lawan, under whose watch the electoral act was passed in 2022 has pushed back during a senate session, by stating that the Electoral Act 2023, being relied upon by those at odds with INEC’s verdict did not mandate electronic transmission of the results from the polling unit.
Rather, he made a case that it is a promise made by the chairman of INEC, Professor Mahmud Yakubu, who is the elections umpire, who had the discretion, but failed to keep his promise to send the results electronically to the server of the commission.
As such, it is being argued that it is a moral rather than a legal issue.
As Friedrich Nietzsche, a German philosopher and cultural critic once wrote: “All things are subject to interpretation. Whichever interpretation prevails at a given time is a function of power & not truth.”
So, some of the aggrieved political parties and their candidates have headed to the tribunals.
And in light of the above development, the collective destiny of Nigerians has once again been handed over to the interpretative society, which is the judiciary for determination.
Although courts have been known to have dethroned monarchs such as the emir of kano and Obong of Calabar; state governors such as Celestine Omehia in Rivers state and Emeka lhiedioha of lmo state, as well as Oserheimen Osunbor of Edo state: never has any court or tribunal upturned the election of a democratically elected president of Nigeria.
In the African continent, upturning a presidential election has only happened in Kenya and Malawi.
According to Africaportal.org, a website focused on democracy and development in Africa: “On February 12, the Malawi High Court upheld its original decision to nullify the country’s May 2019 presidential election, and decreed that the poll must be rerun within 150 days. Malawi has thus become only the second African country, after Kenya in 2017, to have had a presidential election annulled by the courts. But although the High Court’s ruling is a promising sign of judicial independence in one of the world’s poorest countries, the experience of Kenya suggests that rerunning elections may not necessarily restore faith in fragile democracies.”
Strikingly, the website reported that “Malawi’s one-round presidential election was essentially a three-horse race, won by the incumbent, Peter Mutharika, with 38.6% of the vote. The result prompted widespread protests and a nine-month court case, led by the opposition, which alleged that there had been massive irregularities including the use of Tipp-Ex correction fluid to alter the results sheets.”
Does the Malawi situation not bear a very close resemblance and look similar to what allegedly happened in Nigeria during the February 25 elections, which was also a three-horse race?
With the level of disaffection and dissatisfaction of the opposing political parties about the outcome of the 25 February presidential and NASS elections in Nigeria, our courts are already receiving suits from the aggrieved who are seeking to overturn the presidential election.
Remarkably, about 89 senior advocates of Nigerian SAN, (which is unprecedented), have been engaged and arrayed by the two aggrieved political parties – PDP and LP, against the ruling APC and its candidate that was declared the winner and currently the president-elect.
Are we on the cusp of a monumental political development that would change the narrative about presidential election contests and disputations or the challenge in court would just serve the purpose of deepening our jurisprudence in electoral matters, by so doing, close the loopholes in the current electoral act, and set precedents and parameters for the future?
At least the Electoral Act 2022 had made a provision for anticipated litigations to be wrapped up before the May 29 date set for the inauguration of the next president.
And from 1st March when the election was called in favour of the APC candidate to May 29 for the swearing-in-ceremony, there is a window of about three months, within which the Supreme Court would seat over the matter and give judgement.
That is because one of the beauties of the Electoral Act 2022 is that it demands that the disputes between opposing candidates and parties to determine winners and losers must be concluded by the tribunals before the inauguration date for the president and governors.
That is why the span of time between the date of the election and inauguration day was stretched further than in the past.
According to Marc Elias, a Democratic lawyer, and former United States of America, USA president, Mr Donald Trump and his allies filed 62 lawsuits in state and federal courts seeking to overturn election results in states the president lost in the 2020 presidential election won by president Joe Biden.
Ideally, the court, which is the temple of justice and the last bastion of democracy, because it is meant to be an impartial arbiter is also currently suffering from a trust deficit from Nigerians.
That is a result of recent judgements issued by the apex court, which most Nigerians consider to be opaque and incomprehensible.
As such, the judiciary, particularly the Supreme Court, which was thought to be incorruptible has been receiving attacks from civil society organisations and the public in general, who are accusing judicial officers of being compromised.
Casting aspersions on the judiciary which is the interpretative society and third arm of government in a presidential governance system consisting of a tripod of Executive, Legislative and Judicial arms in a functional democracy is the lowest level possible that our country has sunk.
The opprobrium and vote of no confidence on the judiciary are engendered by a series of judgements from the courts which pundits aver are opaque and below par, therefore, are being characterised as purchased judgements from magistrates courts, high courts to appeal courts and even the highest level of Supreme Court.
In recent times, public odium on the judiciary has been so palpable that the spokesman of the Supreme Court Dr Festus Akande recently lashed out in a media statement warning its critics of consequences, if the fourth estate of the realm continues to question the legal and moral contents of the decisions of the highly exalted members of the temple of justice.
The recent outburst from the Supreme Court through its spokesman is an attitude that most Nigerians have interpreted as an attempt to gag not only the media, but the general public:
“It is so disheartening to learn that some individuals and groups of persons who ought to know better and even assume the revered positions of role models to a larger proportion of the citizens are now sadly, the very ones flagrantly displaying ignorance and infantilism in the course of defending the indefensible.”
If l were to be in a position to advise the Supreme Court and indeed the judiciary on how to shore up its sagging reputation,
l would recommend that it starts explaining its judgements instead of lampooning those who question them for lack of clarity.
That approach is in tune with the often-quoted aphorism: “Justice must not only be done but must also be seen to be done” which is a dictum laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, .
Without the critical mass of Nigerians buying into Supreme Court judgements, which is tending towards being the case rather than the exception lately, only the former part of the referenced Lord Hewart’s admonition would have been adhered to while ignoring the later part “…but must be seen to be done.”
That is the crisis of confidence that is currently besetting the judiciary with the Supreme Court steadily, but unwittingly pushing itself into the vortex of scepticism that has aggregated it into the trust deficit synonymous with government and governance in our country.
It is in the context of the apparent and underlying absurdities in the judiciary that very consequential presidential and NASS elections have been held.
With a controversial outcome, two of the eighteen political parties that contested are disagreeing with the verdict and they are seeking justice in the same courts that are receiving public bashing.
Is that not problematic?
It has also not helped matters that the INEC Chairman, has not deemed it fit to apprise Nigerians of the wisdom in his jettisoning of the provision of the Electoral Act 2022 which mandates him to transmit or transfer election results captured in the BVAS into the IReV which is a portal for viewing result for the purpose of transparency.
Although a clause in the electoral act is being said to have given the election umpire the discretion of determining the method of transmission of the results, the chairman of INEC is on record to have made a personal commitment in multiple press conferences both in Nigeria and Chatham House, London, United Kingdom, to transfer the data from BVAS straight into IReV real-time online for final collation of the result.
There is no doubt that Nigerians deserve to know what made Prof Yakubu change his mind!
As the major advocate for the use of technology in conducting elections with which he had successfully and creditably delivered governorship elections in Delta Edo, Anambra and Osun states, plus the fact that the same rule is clearly spelt out in INEC elections guidelines, it’s beggars belief that the electoral umpire would flout his own rule and remain mum instead of a least trying to justify his action.
What has gone amiss, Nigerians are literally dying to know.
As conventional wisdom goes: silence is golden.
But Prof Yakubu’s silence on this occasion can not be golden. That is because only he can redeem himself.
Not Mr Festus Okoye, the commissioner in charge of voter education or the Chief Press Secretary, CPS to INEC, Mr Rotimi Oyekanmi, who has only started speaking nearly two weeks after the polls were conducted.
The anxiety is underscored by the fact that by continuing to demur, Prof Yakubu is raising the tempo of agitation and heating up the polity which is not good for Nigerians or even in the best interest of the ruling APC and its presidential standard bearer, Asiwaju Bola Tinubu, who has assumed the status of the president-elect.
I can wager a bet that the ex-governor of Lagos state, APC leader and political power broker would not like to kick off his leadership of our cherished country while it is enmeshed in the chaotic atmosphere that the disputed election process has engendered as we are all actually caught up in a gale of election controversy and bubble.
So, the silence-of-the-grave posture that the INEC boss has assumed is hurting rather than helping Nigeria and Nigerians.
Critical nations in the global community were here to monitor the elections and they departed our shores with unfulfilled expectations after witnessing an embarrassingly high level of malpractice in the course of the election exercise.
They comprise the powerful delegations representing the International Republican Institute, lRl, and National Democratic Institute, NDI, which are influential think tanks from the USA, top members of the European Union, EU and the African Union, AU members including a handful of ex-presidents of South Africa, Ghana, Kenya, Malawi and Liberia, amongst others, that were on ground in Nigeria to monitor the exercise.
But they left our shores highly disappointed in the outcome which they have adjudged as not fair, free and transparent, therefore, not a reflection of the wish of Nigerians.
As such, our country is already suffering a deficit of confidence from an array of critical stakeholders from strategic nations around Africa and the Western world that could have automatically become brand ambassadors for Nigeria if things had not gone awry.
Indeed, were the conduct of the 25 February elections to have been fair, free, transparent and credible as president Buhari had vowed it would be, and Prof Yakubu had reiterated, Nigeria could have had all the earlier listed Very Important Personalities, VIPs from Africa and the Western world as champions of Nigerian cause, or Nigerian brand evangelists as well as Nigerian cause advocates in their respective home countries.
That could have been one of the major gains from the 2023 elections for the greater good of Nigeria as the dignitaries would have held aloft our beloved country as a beacon of hope for democracy in Africa.
That is what happened in South Africa when apartheid ended and the late leadership icon, Nelson Mandela, in 1994, became the president of that country that was highly racially divided, but out of which arose a new country with the unification of black and white into a country that is currently fondly referred to as a rainbow coalition.
On the contrary, there has been an avalanche of negative comments on Nigeria by strategic and highly influential international media organisations – The Time, Economist magazines and the Guardian newspaper of London, as well as the New York Times, amongst other French and German media organisations.
As earlier stated, our country also missed a similar opportunity in 1993.
That was when South Africa’s gain was Nigeria’s loss as our country which appeared poised for a national rebirth when the 12 June 1993 general elections held to enable us transit from a military rule into a multi-party democracy was annulled by then military head of state, General Ibrahim Babangida and hell was literally let loose causing our country to suffer a global backlash.
As one of the election 2023 observers from the US, Ambassador Mark Greene, on behalf of the International Republican Institute, IRI and National Democratic Institute, NDl (American Think Tanks) surmised, the February 25 election which failed to meet the expectations of Nigerians is indeed a missed opportunity.
It was a window for our country to have witnessed a new beginning by electing leaders that we all would have believed to have the undiluted mandate of the people if INEC had not derailed in its duty of helping make Nigeria a stronger democracy by being transparent in the process of producing the presidential result. That could have conferred complete credibility on the process so that the winner would have a legitimate mandate and Nigeria would take its place as the true leader of Africa with all its pride and ramifications.
But lNEC appears to have ineptly bungled it by allegedly not adhering to the Electoral Act 2022 requirements to the last details and failing to keep to its own guidelines to rely on data from BVAS transmitted to its own server real-time-online.
And the disappointing outcome should not have been the case because the election process was believed to have been going well until INEC reneged on its promise of uploading the results online in real-time into its servers in the headquarters based on its written guidelines that had been advertised across all the media platforms.
The assertion above is validated by the Nigerian Bar Association, NBA under its new helmsman, Mr Yakubu Maikyau who had set up a working group to monitor the 25 February presidential and National Assembly elections.
NBA’s interim report was that 64.6 percent of Nigerians felt somewhat satisfied with the elections and 27 percent were excellently impressed and 8.2 percent adjudged the election as poor or very poor. Presumably, the interim report was issued before the collation of the results.
In my view, that was a fair assessment as it reflected the true feelings of Nigerians while the process was ongoing on Saturday, February 25, until Sunday, February 26, when the balloting process was over and INEC failed to upload the results from the polling units into the server as it had promised.
That is when the initial good feelings of Nigerians about the exercise went south after it became apparent that the results were not transmitted to INEC server/database through the BVAS used for accreditation as stipulated in the electoral umpire’s guidelines and as demanded by the electoral act 2022 and which Prof Yakubu promised severally.
The bottom line is that the conduct of the highly controversial election 2023 was not really the problem, but the counting of the votes during which the result is believed to have been rigged.
The alleged ignoble role of INEC fits into the statement attributed to Mr Joseph Stalin, a former Soviet Union dictator, who famously said: “The people who cast the votes decide nothing; the people who count the votes decide everything.”
If indeed INEC did not rely on data from BVAS for arriving at the final result as alleged, the election umpire would have indeed made “the people who cast the votes decide nothing”, as Stalin had noted.
In any case, it is within the purview and ambit of the law to determine if the allegation of the votes of Nigerians not counting is true or false and l believe the election tribunal would work assiduously towards achieving that objective.
As if in convergence with the wisecrack: “when it rains, it pours”, the forthcoming elections at the subnational polls that got postponed from 11 March to 18 March, are susceptible to stirring up another controversy that may force another postponement.
The view above is underscored by the fact that a high court in Abuja has ruled that TVC which INEC has replaced with PVC should be used in the next election.
That would be further mudding the waters if it is sustained.
Although INEC has challenged the court ruling and has promised to vacate the judgement, it remains a snag that has the potential to become another blight on our already mortally damaged 2023 elections.
Given how disappointed Nigerians are based on the belief that BVAS was sidetracked and all the former fraudulent practices that were thought to have been eliminated by BVAS were on full display with impunity during the 25 February polling exercise, trust has been broken in the willingness and ability of INEC to be impartial.
So, chances are that violence may be manifest in the conduct of the 18 March gubernatorial and state legislators elections.
If mayhem happens on election day and lives are lost, we know whose doorsteps to lay the blames on.
Clearly, we need better and stronger safeguards for our fragile democracy.
And the nebulous legislation which Electoral Act 2022 has turned out to be, needs to be given a second look by the incoming 10th NASS to ensure that there are no more loopholes in the act that may be exploited in a manner that could cast a slur on the election process in our beloved country.
That is because the reforms in the current Electoral Act 2022 that are supposed to make the process less fractious are obviously not as efficacious.
Hence the legislation, which was thought to have raised the quality and standards of political office contests in our country is turning out to do the exact opposite.
Obviously, the 10th NASS has its job cut out for it.
May God bless Nigeria with wise leaders.
***Magnus Onyibe sent this piece from Lagos.*