By Sylvester Udemezue

I carefully followed the 05 April 2023 AriseTV interview featuring very respected Olisa Agbakoba SAN, an ex President of the NBA, and I listened to the arguments he put out. [the interview is on YouTube under the title, “Let Us Resolve the President Election Petition Before the Inauguration — Olisa Agbakoba SAN” ]. I agree with Mr. Agbakoba SAN, that Nigeria is long overdue for a new judicial philosophy towards a faster justice dispensation. The undue delay that characterizes Nigeria’s justice delivery system has made a Nigeria a laughing stock in the comity of nations. Meanwhile, please permit me to offer my humble opinion on the other issues raised, and arguments advanced, by the great learned silk, as follows:

1️⃣. Mr Agbakoba says a presidential candidate must win up to 25% votes in the FCT Abuja. I respectfully think it may be difficult to sustain this position judging by the plain words used in section 134(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999. While I’ve made known my view on this issue [See: “A Candidate With The Highest Number Of Votes Cast In A Presidential Election, Does Not Need Up To 25 Percent Of Abuja Votes As A Mandatory Condition Precedent To Being Declared The Winner” by Sylvester Udemezue; 28 February 2023; TheNigeriaLawyer], I think it has become necessary to bring up Part 2 of the discussion, from my perspective and further findings. This proposes to be published before 16 April 2023 under the title, “Is 25% Votes In The FCT An Indispensable Condition Precedent To Presidential Election Victory In Nigeria?”

2️⃣Mr Agbakoba SAN says that BVAS is nothing more than a machine for “voter accreditation.” I respectfully disagree. BVAS ordinarily has two uses, and is assigned two mandatory roles under the Electoral Act, 2022: (a) used for voter accreditation and verification of PVC, and (b) used to scan/snap the Form EC8A and to transmit/send/transfer to the IReV, the snapshot of the Form EC8A as endorsed by the polling Unit Officer, the Polling Agents and the Police. That the BVAS has a dual use has even been confirmed by the Court of Appeal of Nigeria in its 24 March 2023 judgement in the case of NURUDEEN v. OYETOLA (unreported Appeal No: CA/AK/EPT/GOV/01/2023), see page 35 where the Court said: “BVAS is a device used to to register voters. It accredits voters before voting on election day and is used for transmitting results to INEC viewing portal after voting. Thus it helps to scan the barcode or QR on the PVC or voters register before voting. Note that BVAS does not require internet connectivity during voting but it requires internet when transmitting results to the INEC portal”.

3️⃣.Mr Agbakoba SAN says that the Court of Appeal has in NURUDEEN V. OYETOLA confirmed that the BVAS is not a game-changer. With due respect, this is not a correct interpretation of what the Court said in that case. I think the Court of Appeal said that the version of the results from the back-end (IReV) as transmitted by the BVAS was UNRELIABLE because the results were not transmitted IMMEDIATELY, on the election day. Thus, I believe the reason the CA said it couldn’t rely on BVAS 100 percent, as against the manually-collated results, in the Osun Governorship election, is because the e-transmission by the BVAS was not done on the election day as required by the Electoral Act. This means that if the results had been transmitted DIRECT from the polling units, at the conclusion of voting on the election day, the Court wouldn’t have had any choice than to accept the same as 100 percent reliable. Put differently, what I think the Court of Appeal said is that only election results e-transmitted direct from the polling unit on election day is 100 percent reliable and where the results are transmitted direct from the polling unit on the election day, any conflict between the election results e-transmitted, and the manual results must be resolved in favour of the e-transmitted version. This is the implication of what the court of appeal said in NURUDEEN V OYETOLA. Prior to the Court of Appeal decision, I had done this, which perhaps contains my opinion on the mandatory post-ballot procedures under the Electoral Act, 2022. [See: Sylvester Udemezue, “Legal Safeguards for Credible Management of Post-Ballot Processes In Nigerian Elections Under the Electoral Act 2022” (March 20, 2023). Available at SSRN: https://ssrn.com/abstract=4393989 or http://dx.doi.org/10.2139/ssrn.4393989>]

4️⃣. Mr Agbakoba SAN says that there are no consequences for failure to use the BVAS or failure to e-transmit election results as required by the Electoral Act. I beg to disagree. In my opinion, failure to use BVAS is a violation of the Electoral Act 2022. And under section 136(1)(b)(ii)& 134(2) of the Electoral Act, 2022, “non-compliance with the Provisions of” the Electoral Act could be an independent/sole ground for challenging an election and where the level of non-compliance is shown to be substantial, it’s a ground for nullifying the entire election and ordering a fresh election. See sections 136(1), 135 and 137 of the Electoral Act, 2022. So it’s incorrect, I submit, to suggest, as has been done by Mr Agbakoba SAN, that the only punishment for failure to use BVAS is imposition of a fine of N500,000. [See: _*”
NIGERIA’S PRESIDENTIAL ELECTION 2023 AND LEGAL CONSEQUENCES OF AN UGLY SUBVERSION OF BEAUTIFUL LAWS [Part 2]”*_ By Sylvester Udemezue; 12 March 2023; NewsDeskNg].

5️⃣. Mr Agbakoba says that INEC has a discretion to decide whether to use manual collation or e-transmission. With due respect, that’s not the correct position because INEC has no power to change the rule in the middle of the game. While section 60(5) of the Act gives INEC the discretion to determine mode or manner of election results collation, it’s public knowledge that INEC had in 2022, and pursuant to the Act, enacted a subsidiary law (the Regulations and Guidelines for Conduct of Elections 2022) Clauses 38 and 48(a) of which make it mandatory that at the completion of voting, the polling unit officer must scan/snap and e-transmit to the IReV, a duly completed and endorsed copy of Form EC8A. In law, the only way INEC can validly change this stipulation is to amend the Regulations and Guidelines for Conduct of Elections 2022, which until now, INEC hasn’t amended. INEC is thus bound by the Regulations and Guidelines and has no power or discretion to deviate from its provisions on election day. ◼Aside from this, a look at section 64(4)-(8) of the Act reveals that presence of results e-transmitted direct from the polling unit is a necessary part of the process of collation and verification of results [s.64(4)&(5)] and of resolution of disputed election results s. 64(6)-(8)] under the Act. Thus, in addition to manual collation, it appears that INEC has no choice on e-transmission. In the case of NURUDEEN v. OYETOLA (unreported Appeal No: CA/AK/EPT/GOV/01/2023) , the Court of Appeal took time to explains (?) the mandatory collation procedure under the Act and (?) the material time for e-transmission of the election results under the Act. I reproduce the tribunal’s own words (Per Shuaibu, JCA in the lead judgment delivered on 24 March 2023, on pages 35-36 of the judgement, on uses of the BVAS and the material time for e-transmission of election results under the Electoral Act 2022):
“BVAS is a device used to to register voters. It accredits voters before voting on election day and is used for transmitting results to INEC viewing portal after voting. Thus it helps to scan the barcode or QR on the PVC or voters register before voting. Note that BVAS does not require internet connectivity during voting but it requires internet when transmitting results to the INEC portal. In the light of the foregoing, it is correct to say that there are dual mode of transmission of results under the extant Electoral Act, 2022. After close of poll at level of various units where the presiding officer would enter the scores of various political parties in Form EC8A (Polling Unit Result) in which he sign that particular result and counter signed by party agents, the result will then be scanned and uploaded to the INEC result viewing portal for public viewing. It’s also at that point the accreditation data that has arisen from that polling unit will also be uploaded, but the physical result, the BVAS result will also be taken to the Registration Area Collation Centre. At the Collation Centre, the Collation Officer will at this point have the benefit of seeing the original result and BVAS report *and the the accreditation data as transmitted and the result sheet sheet from the polling unit”

6️⃣. Mr Agbakoba SAN holds the view that the Presidential Election Tribunal could determine the lawsuits before it within a few days. I respectfully think that while such is greatly desirable, it could be impracticable in the present scenario, under the extant law. Anyone who has read through the Electoral Act 2022, and the petitions presented by each of Peter Obi and Atiku Abubakar, would agree that the legal issues raised in each and the facts pleaded in each, would take much more than one month to determine. Apart from the issues relating to (1) Tinubu’s drug case, (2) interpretation of section 134(2)(b) CFRN 1999, and (3) qualification or non qualification of the APC Vice Presidential Candidate (which if true, automatically nullifies the candidacy of the President-elect), there are also issues raised as to (4) substantial non-compliance with the Electoral Act, the Regulations and Guidelines for Conduct of Elections 2022, and the INEC Manual, plus (5) allegations of result manipulation and other electoral malpractices in addition to (6) each of Peter Obi’s and Atiku’s claim that they won the election. Resolution of most of these issues and claims requires calling of witnesses, tendering of exhibits, research and legal arguments by counsel as well as time for the adjudicators to research, evaluate and decide the case. This could be why the makers of the law have provided for a180-day timeline within which the Tribunal must give its verdict. While I agree with Mr Agbakoba SAN that the Tribunal need not wait till near the end of this 180 days before delivering its verdict, I find it hard to agree that these could be resolved within days. And what about the right of each party to appeal to the Supreme Court? Doesn’t the losing party have within 21 days from the date of Tribunal judgment, to appeal, and would the Supreme Court be expected to resolve all issues within days too? Contrary to Mr Agbakoba SAN ‘s suggestions that the petitions could be resolved up to the Supreme Court before 29 May 2023, I think section 138 of the Electoral Act provides a reasonable guide under the circumstances. If as is provided by section 138, a candidate whose election has been declared VOID by the tribunal, could still stay in office pending resolution of the appeal arising from the tribunal decision, there appears to be no good reasons to support any view that a person whose election is being challenged at the Tribunal on grounds that the election was unlawful or that his declaration was unlawful, should not be sworn in pending resolution of pending lawsuits.

By way of recommendation and conclusion, I respectfully submit that a more reasonable and practicable alternative/way to ensure that swearing does not happen before final resolution of pending election lawsuits, is to (?) amend the law to provide that elections should be conducted not later than seven (7) months before 29 May (handover date) , and then (?) abridge the time for determining election petitions, say from 180 days (which i suggest is too long) to say 100 days, and the time for appeal: 15 days from the date of Tribunal judgment; and the time for determining the appeal to not more than 30 days. In this way, all election litigation would be wrapped up before the date of swearing in. Check out: ((A) filing: within 21 days from date of Declaration; (B). Reply: with 10 days from date of service; (C). Hearing and judgement: within 100 days from filing date; (D). Time to appeal: Within 15 days from tribunal judgment; (E) Response by the respondent to the appeal: within 5 days of service; (F). time for hearing and judgment by the Supreme Court: within 30 days from date of filing the appeal—- 21+100+15+30= 166 days) . This allows up to almost 44 days before swearing in; the time is reasonable enough, to accommodate shifts in elections where for example section 24 or 47(3) of the Act applies.
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Thank you for reading me.
Respectfully submitted,
Sylvester Udemezue (Udems)
08109024556.
[email protected].
(06 April 2023)