Critical Appraisal Of Supreme Court Decision In Oyetola V. Adeleke In Osun State Guber Election

By Kenneth Okonkwo

The Electoral Act 2022 introduced some novel inventions. Principal amongst them is the electronic transfer of election results from the polling units in real time on election day to the INEC database or back end server or National Electronic Register of Election Results, and the uploading of the scanned hardcopies of the polling units results of form EC8A to the INEC Results Viewing (IREV) Portal for the viewing pleasure of all Nigerians on election day and the use of the electronic device called the Bimodal Voter Accreditation System (BVAS) for the accreditation of voters and effecting the transfer of the number of accredited voters and results to the designated INEC approved electronic sites stated above.

These electronic devices were applied during the Osun gubernatorial election of July 16, 2022, won by Adeleke Ademola, but which was contested fiercely in the tribunal and courts by his closest opponent in the election, Adegboyega Oyetola, former Governor of Osun State, and the immediate predecessor of Adeleke.

The election trumped up some pertinent issues regarding the electronic innovations that require a critical appraisal to reveal the clear intentions of the lawmakers in making those laws as interpreted by the Judiciary.

The petition by Oyetola challenging the declaration of Adeleke as winner, commenced at the Osun State Governorship Election Tribunal, where Oyetola won the petition and was declared the rightful winner of the Osun gubernatorial election and Adeleke was declared a “buga” dancer that lost the election to Oyetola. Adeleke appealed the decision to the Court of Appeal and won. Finally, Oyetola appealed to the Supreme Court and lost, therefore, affirming that Adeleke was legitimately elected as the governor of Osun State.

The case of Oyetola in the petition is based on the allegation of facts of non-compliance with the Electoral Act and INEC Regulations, Guidelines and Manuals in election in 744 polling units across 10 Local Government Areas of Osun State. The allegations of non-compliance were characterised by non-accreditation, improper accreditation and over voting in the 744 polling units. Oyetola sought to prove the number of accredited voters in the BVAS devices for each of the 744 polling units by means of a report of the examination of the INEC data base or back end server, following an inspection ordered by the Trial Tribunal, which purported to contain information on the number of accredited voters and number of votes cast in a polling unit transmitted from BVAS to the said INEC data base during the election on the election day in the 744 polling units. We must note that there was some variance in the number of accredited voters as recorded in the INEC database or back end server and the number of accredited voters as recorded in the BVAS at the end of the election on that day.

The Supreme Court held that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the Register of Voters, BVAS and the Polling Unit result in Form EC8A and that the evidence required to prove that there was over voting are the record of accredited voters in the BVAS and the Polling Unit result in Form EC8A. The court noted that the record in the BVAS machine for each polling unit is the direct and primary record of the number of voters accredited in that polling unit on the election day. Since Oyetola didn’t use the stated evidence, the Supreme Court came to the inevitable conclusion that “in the light of the foregoing, I hold that the INEC data base or National Electronic Register of Election Results is not relevant evidence in the determination of whether there was non-accreditation or over voting or not in an election in a polling unit and cannot be relied on to prove over voting”. Consequently the apex court held that “on the whole, the appeal fails as it lacks merit”.

We need not consider the allegation of non-qualification to contest the gubernatorial election levelled against Adeleke by Oyetola on the allegation of certificate forgery because the Supreme Court held that the Court of Appeal had already decided on the matter and their decision is binding on the Osun State Governorship Election Tribunal on account of the doctrine of stare decisis which makes the judgment of a higher court binding on a lower court.

The decision of the Supreme Court in this case requires a critical appraisal considering a lot of misinformation or disinformation proceeding from it. It is important to note, in our opinion, that the decision of the Supreme Court is sound and upheld the justice of the matter. The Supreme Court held that it’s mandatory that the election results from the polling units should be transferred to the INEC data base or back end server and the hardcopy of Form EC8A uploaded on IREV Portal for the viewing pleasure of the public and even went further to describe what the transferred results are used for after transfer. Hear the Supreme Court, “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day.” (See Page 24 of the lead judgement as delivered by Emmanuel Akomaye, JSC). The Court cited Clause 38(i)(ii) of INEC’S Regulations and Guidelines for the Conduct of Elections, 2022 to buttress this point. This Clause was made pursuant to the power given to INEC in Section 60(5) of the Electoral Act (EA), 2022, which made it mandatory on INEC to transfer both the number of accredited voters and the votes cast into INEC designated sites. It’s also important to note that the Supreme Court stipulated that the electronically transmitted results from the polling units must be used to verify the correctness of the manual results on Form EC8A during collation activity at the various levels of collation. This is also in line with Section 64(4)(5) of the EA.

There’s no place in the judgment where the Supreme Court held that one requires to bring the manual register of voters to prove over voting. The court rather stated that where anyone is alleging non-accreditation or improper accreditation, the party alleging should bring the manual register because ticking the manual register is among the activities required in the accreditation process. The court was explicit “that the evidence required to prove that there was over voting are the record of accredited voters in the BVAS and the Polling Unit result in Form EC8A”. (See the last paragraph of page 17 and the beginning paragraph of page 18 of the lead judgement). This agrees with Section 51(2) of the EA.

However, the assertion by the Supreme Court that “There is no part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022, that requires that the Presiding Officer of the election in a Polling Unit transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base or anywhere” (See page 22 of the lead judgement), doesn’t appear to be supported by facts and the law, especially the addition of the generic word, “anywhere”. To buttress this point, Section 60(5) of the EA states explicitly, “The presiding officer shall transfer the result including total number of accredited voters and the results of the ballot in a manner prescribed by the commission”. This means that transfer of the number of accredited voters is an integral part of transferring the election results to the data base and INEC must transfer to the database. The only choice INEC has is the medium, which they have already chosen to be BVAS from the polling unit.

The Supreme Court admitted that the transmitted result should be used to verify the correctness of the manually assembled polling unit results. Section 64(4)(a) of the Electoral Act states “A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under Section 47(2) of this Act”. Here again, the law requires the number of accredited voters to be transmitted with the results from the polling unit. The Supreme Court even further admitted that Form EC8A is required to be uploaded on the IREV Portal for the viewing pleasure of Nigerians. Form EC8A clearly contains the number of accredited voters which is electronically uploaded on IREV in contradiction to the assertion that number of accredited voters is not required to be electronically transmitted to “anywhere”.

The Supreme Court also asserted that “There is no part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022 that makes INEC data base or back end server a part of the accreditation process or record of accredited voters. The INEC data base is a post election record created by S.62 of the EA 2022 and named therein as the National Election Register of Election Results for the purpose of keeping reliable and verifiable records of past election results polling unit by polling unit”. (Pages 20-21 of the lead judgement). Proceeding from this premise, the Supreme Court submitted that the collation system and the INEC data base or back end server is different from the National Electronic Register of Election Results (NERER).

A careful analysis of the above paragraph indicates that the Supreme Court appears correct when it stated that INEC data base or back end server is not part of the accreditation process and this made the Court correct in reaching the decision in the Osun State governorship election. However, the assertion that the Collation System or INEC data base or back end server is not part of the record of accredited voters or different from NERER is not supported by the law. In the Electoral Act, the procedure at election is located in Part IV of the Act and stretches from Section 24 to 74 of the Act. Section 62 is in Part IV and this places it squarely within the context of the election process. Also Section 62 is placed in-between the counting and announcement of polling units results in Section 60 and the collation, verification of polling units results and declaration of winners in Section 64 of the Act. This means that the compiling, maintaining and updating of the polling unit by polling unit and collated results are activities foreseeable to be carried out simultaneously with the collation of the results. The truth is that the collation system and the INEC data base are not different from the NERER, they are components of it. The Supreme Court actually called NERER above “the INEC database”. There wouldn’t have been any need for the words “update on a continuous basis” if it were a post election matter. The updating on a continuous basis was used because the collation centres are at different levels from the ward to the local government to the State and to the Federal level and the Act requires that the NERER should be updated immediately and continuously after every level of collation centre. It is this updated NERER that should be used by the collation officers of different collation levels to ensure the correctness of the manually collated results. This is particularly important in presidential election which entails verifying the entire results of all the more than 176,000 polling units and all the collated results at the different levels of collation by the Chief Electoral Officer of INEC, who is the INEC Chairman and the Returning Officer of the presidential election.

Section 62(3) of EA actually mandated INEC to be ready to give the CTC of all the contents of NERER to any person or political party who needs it. This requirement was to enable any political party that needs it for its election petition to have it immediately after the election because the time for filing the election petition is 21 days after the declaration of the winner. Indeed, the intention of the Lawmakers is that before the declaration of the winner of the presidential election, the NERER would have been compiled and completed and the ctc ready for any Nigerian to see. What the IREV Portal was designed to achieve in visual guide of the hard copy results for the viewing public is what NERER is intended to achieve in the guide of every Nigerian and political party in the statistics and figures of the election results per polling unit and collation centres, for the world to see.

It’s important to note that where election is conducted in compliance with the Electoral Act, all the information in the BVAS, Form EC8A, INEC database or back end server and the NERER should be identical. They are all different aspects of authenticating the results of the election. Any election conducted and concluded without being compared with the information in the Collation System or INEC database or back end server or NERER to ensure its correctness, especially the presidential election which involves the whole country is in substantial noncompliance with the Electoral Act because the requirement is a mandatory provision of the law in Sections 60, 62 and 64 of the EA.