Challenging the 2023 general election result on sole ground of failure to upload or non-transmission/transfer of election results with the BVAS/IREV is tantamount to an invitation to our courts/tribunals to embark on voyage on a Sea without shore
By Olumide Olaiya
In the past few days, divergent views on the hydra-headed issues threw up by the Presidential and National Assembly elections of 25th February, 2023 have been expressed by lawyers and non-lawyers via write-ups and news media interviews.
It is interesting to note that some views gained very wide acceptability simply because the opinions expressed were in tune with the yearning of the majority, albeit legally goofy. Some views were latently tainted because of the political affiliation of the author. While some other views are objective and borne out of the desire to educate people on the position of the law.
This write-up is targeted at enlightening the public and to prepare their mind on the fate of any election petition predicated mainly on failure to upload polling unit result sheets with BIVAS for the purpose of viewing the Election result on IReV. Readers are however at liberty to situate my opinion wherever they want.
The BVAS (Bimodal Voter Registration System) is a technological device used to identify and accredit voters’ fingerprints and facial recognition before voting, while the IReV (INEC Result Viewing Portal) is an online portal where polling unit level results are uploaded directly from the polling unit, transmitted and published for the public.
The big question is- what happens where the IReV appears not to have been used or was partially used or suffers glitches during an election? Can this constitute a ground for successfully challenging an election at the Tribunal?
The grounds for challenging an election are as provided in the Electoral Act. Section 134 of the Electoral Act, 2022 prescribes only three grounds for questioning an election. It states that an election may be questioned on any of these three grounds-
a. That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
b. That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act; and
c. That the Respondent was not duly elected by the majority of lawful votes cast at the election.
The above grounds are clear and unambiguous. The grounds of any petition must be cognizable under the provisions of Section 134 of the Electoral Act. His Lordship Biobele Abraham Georgewill, JCA in the case of AKPETI v. SINEBE & ORS (2019) LPELR-48934(CA) (Pp 42 - 43 Paras B - C) stated as follows:
“In Muhammed V. Abdullahi (Supra), I had, while relying on the succinct statement of the law by the Supreme Court in Ojukwu V. Yar'Adua (Supra), opined inter alia thus: "The law is that a Petitioner, such as the 1st and 2nd Respondents, is obligated to found or base his Petition within the ambit of any of the four grounds as prescribed by Section 138 (1) (a) - (d) of the Electoral Act 2010 (as amended), failing which such a Petition is rendered incompetent. A Petitioner cannot in law, on his own volition, go outside the grounds as prescribed by Section 138 (1) (a) - (d) of the Electoral Act 2010 as amended, neither does he have the power or liberty to add to or subtract from the grounds as provided specifically in Section 138 (1)(b) of the Electoral Act 2010 as amended...In my view, the result of the affliction suffered by the sole ground by the incorporation of two incompetent grounds...is that it rendered the Petition incompetent."
In answering the posers above, to wit: what happens where the IReV appears not to have been used or was partially used or suffers glitches during an election? I am of the opinion that while a petition predicated on the sole ground of failure or delay in uploading result on the IReV is heading nowhere, the same facts can be used to sustain the grounds contained in either Sub-section(b) or (c) of S.134 of the Act. I will say no more on this point.
Some persons may argue that the INEC’s guideline which provides for the uploading of result sheets with BIVAS and the viewing of Election result on IRev was made by INEC pursuant to the provisions of the Electoral Act; thereby constituting a bye-law which must be obeyed. This line of argument finds solace in the case of PDP V. INEC & ORS (2015) LPELR-25669 Pp. 69-70, paras. D-A, where the Court of Appeal held per AGIM, J.C.A. that:
"I agree with the submission of Learned counsel for the appellant that the Approved Guidelines for the Regulation of the Conduct of the 2015 General Elections having been made by the 1st respondent pursuant to the power vested on it by S.153 of the Electoral Act 2010 as amended to subject to the provisions of the Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof, is part of the Electoral Act. Therefore non-compliance with the provisions of the Guidelines qualifies as non-compliance with the Act."
May I however quickly draw our attention to the following provisions of the Electoral Act:
Section 134(2) -
“An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”
Section 135(1) -
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
A visit to the IReV portal will reveal that most results were uploaded after the election and not real-time. Let us even assume for the sake of argument that no result was uploaded on the IReV. Can this inaction invalidate the election, especially where the results contained in the copies of the polling unit results given to political party agents tally with the final result declared? The yardstick that has been engaged by courts on this issue is to determine whether the non-compliance has substantially affected the result of the election.
Is the IReV portal the only means to ascertain votes scored by the political parties? If the answer is in the affirmative, then the failure to upload polling unit results on the portal would be irreparably fatal to the whole election as the non-compliance could be said to have substantially affected the election. This is because there would be no alternative means to ascertain polling units result. In advancing an argument predicated on such fact, the decision in the case of UZU & ANOR V. OGBU & ORS (2012) LPELR-9775 P. 132, para. A, can be relied on. In that case, it was held that:
"I agree also with learned counsel for the Appellants and on the authorities of Nweke v. Ejims (supra); Ajadi v. Ajibola (2004) 16 NWLR (pt 898) 91 at182; Ogboru v. Uduaghan (supra) at 706; Terab v. Lawan (1999) 3 NWLR (pt. 231) 5 569 at 569; Section 49(1) and 2 and Chapters 3 and 4 of the Manual for Election Officials that where there is no accreditation and no voting, the results of the election cannot be sustained. Also, the marking of the voters register in the 2011 election as provided by the Manual is the only ascertainable method of proving that accreditation and voting took place.”
In this election, the IReV portal is not the only means to ascertain valid votes scored by the political parties. The polling unit result sheets (with copies given to the various political party agents) which formed the basis of results declared remain the ascertainable method of proving votes scored. Undoubtedly, the accessibility of polling unit level results through IReV increases transparency and public trust in our electoral process.
Driving home this conversation, the electorates need to know that as the electoral contestation moves from the polling units to the Tribunals, the rules of engagement has to be strictly followed for any petition to come out of the Tribunal alive! Some facts that may appear seemingly strong enough to upturn an election may not find where to stand in the Electoral Act.
Election petition cases are of interest to the general populace, and as such, undue technicalities should not be allowed to erode substantial justice. This point was echoed in the case TAFIDA V. TAFIDA V. BAFARAWA & ORS (1999) LPELR-6510 P. 19, paras. B-D, where it was held that:
"...The attitude of the Court in such special proceedings i.e. election petition, is liberal as it is always better to consider the petition on its merit rather than technicalities. See: Obi v. Mbakwe (1984) 1 SCNLR 192: Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt.263) 24; Opia v. Ibru (1992) 3 NWLR (Pt.231) 658."
Any request to nullify the result of the just concluded election on the ground that results were not uploaded on the IReV portal would be riding on the rough back of technicalities. The Election Petition Tribunals would not hesitate to decline any such invitation to embark on a rudderless voyage.
Petitioners and Electorates should therefore be guided on their expectations.