By Clifford Ndujihe, Dapo Akinrefon, Ikechukwu Nnochiri, Omeiza Ajayi & John Alechenu, ABUJA
The Presidential Election Petition Court, PEPC, sitting at the Court of Appeal in Abuja yesterday granted the Independent National Electoral Commission, INEC, the permission to reconfigure the Bimodal Voter Accreditation System, BVAS, machines, it used for the presidential election that was held on February 25.
The court, in a unanimous decision by a three-man panel of justices, held that stopping the electoral body from reconfiguring the BVAS would adversely affect the coming governorship and state Assembly elections.
It dismissed objections that the Labour Party, LP, and its presidential candidate, Mr Peter Obi, raised against INEC’s move to reconfigure all the BVAS devices that were used for the presidential poll.
According to the court, allowing the objections by Obi and his party would amount to “tying the hands of the Respondent, INEC.”
Besides, it noted that INEC filed an affidavit, wherein it assured that accreditation data contained in the BVAS could not be tampered with or lost, as they would be stored and easily retrieved from its back-end server.
The court held that neither Obi nor the LP controverted the depositions INEC made in the affidavit, stressing that since such averments were not challenged, it amounted to an admission by the opposing parties.
However, the court dismissed a motion that INEC filed to vary the order it made on March 3, which granted both Obi and the presidential candidate of the Peoples Democratic Party, PDP, Atiku Abubakar, access to inspect and obtain copies of sensitive materials that were used for the election.
It held that the motion INEC filed to set aside the order, lacked merit.
INEC had contended that allowing the Applicants to have access to and make copies of some of the sensitive materials, would compromise the secrecy of the ballot papers.
‘No electronic access to INEC’s database’
Meanwhile, though the court restated its order for both Obi and Atiku to be allowed to access the electoral materials, it warned that the order is not permission for the duo to electronically open INEC’s database.
Similarly, the court directed INEC to also allow the President-elect, Bola Tinubu, of the All Progressives Congress, APC, to inspect and obtain copies of the electoral material to enable him to prepare his defence against petitions that may be lodged to overturn his election victory.
It held that both Tinubu and his party are entitled to have access to the materials in INEC’s possession.
Tinubu and the APC had in separate ex-parte applications brought before the court, said they would need the materials to prepare their defence.
“The materials will be relevant in helping us prepare our defence and also make comparison with the information contained in INEC’s back-end server”, Tinubu’s lawyer, Mr Akintola Makinde submitted.
Specifically, the court ordered INEC to allow the Applicants to inspect all the electoral materials and to carry out electronic scanning and/or make photocopies of Voter Registration and Ballot Papers used for the presidential election.
It further granted them leave to conduct a Digital Forensic Inspection of BVAS machines used for the election, adding that INEC should furnish them with the Certified True Copy, CTC, of the result of the inspection.
Though both Obi and Atiku sought an order to restrain INEC from tampering with the information contained in the BVAS, the court declined on the premise that such an order would affect the conduct of next round of elections.
Reconfiguring BVAS necessary for next poll says court
INEC had insisted that reconfiguration of the BVAS was necessary since they would be deployed for the coming elections.
It maintained that by restraining it from purging the BVAS through reconfiguration, it would be difficult for it to proceed with the scheduled elections.
The electoral body had urged the court to refuse the request by Obi and LP to be allowed to extract data embedded in the BVAS, “which represent the actual results from Polling Units”.
“My lords, this is to ensure that the evidence is preserved before the BVAS are reconfigured by INEC. This is because if they are wiped out, it will affect the substance of our case”, Obi’s lead counsel, Dr. Onyechi Ikpeazu, SAN, submitted.
However, opposing the application, INEC insisted that granting the request would affect its preparations for th governorship and State Assembly elections.
It told the Justice Joseph Ikyegh-led panel that there were a total of 176, 000 BVAS deployed to polling units during the presidential election.
“Each polling unit has its own particular BVAS machine which we need to configure for the forthcoming elections.
“It will be very difficult for us, within the period, to reconfigure the 176, 000 BVAS. We have already stated in our affidavit that no information in the BVAS will be lost as we will transfer all the data in the BVAS to our back-end server.
“We need the BVAS configured. So, granting this application will be a clog in the process and may delay the conduct of the elections”, INEC’s lead lawyer, Tanimu Inuwa, SAN, pleaded.
Other Justices on the panel of the appellate court that heard all the applications were Justices Haruna Simon Tsammani and James Gambo Abundaga.
INEC can’t be trusted —OSUNTOKUN, DG OBI-DATTI PCC
Reacting to the ruling last night, the Director General of Obi-Datti Presidential Campaign Council, Akin Osuntokun, said the electoral umpire could not be trusted.
Osuntokun told Vanguard on phone: “How they are going to do it is something we will wait and see. We only hope because we don’t expect anything good from them and having said that, a lot of money was expended on getting this new technology.
“When they were getting this new technology, they should have known in advance that after the conduct of the presidential and National Assembly elections, the records there will be needed in court, so they do not find themselves in a situation like this.
“If you contract a technology that you are using for an election like this, you know you will need it for the presidential election and to conduct the governorship election, you will need to reconfigure it.
“Why didn’t they (INEC) look for a way out in which the integrity of the figures can still be protected? But as I said, I don’t expect anything good from these people (INEC) and they are just confirming it.
“When things are straightforward, they look for a way to pervert it. I don’t expect anything good from them.”
Atiku-Okowa legal team meet over Appeal Court ruling
Similarly, the legal team of the Atiku-Okowa -led Peoples Democratic Party Presidential Campaign Council, PDP PCC, met shortly after the ruling yesterday to review it.
The spokesman of the Campaign, Mr Daniel Bwala, confirmed the review meeting over the telephone last night.
He told Vanguard over the telephone, “The legal team of the campaign is currently meeting to study the ruling.” The PDP had opposed INEC’s application to reconfigure the BVAS machine to enable it to conduct Saturday’s governorship and State Assembly elections on the grounds that doing so could jeopardize its case.
According to the opposition party, granting INEC’s prayers is likely to give the election management body a window to tinker with crucial evidence contained in the device.
However, counsel to INEC had argued that sensitive data contained in the device was intact and would not in anyway be compromised during the reconfiguration.
Atiku assembles 19 SANs to challenge the presidential poll outcome
Meanwhile, the presidential candidate of the Peoples Democratic Party, PDP, Atiku Abubakar, has inaugurated the legal team to challenge the controversial presidential election of February 25, 2023. Atiku had, while inaugurating the legal team at his campaign headquarters in Abuja on Tuesday, charged members to establish the claim of illegality in the February 25 presidential election and reclaim the mandate of the Nigerian people.
The PDP candidate instructed the legal team that apart from reclaiming the mandate from those who undertook the electoral heist, they should also use the opportunity of the trial to strengthen constitutional democracy in the country. In his brief to the team, headed by Chief J. K. Gadzama, SAN, at the conference room of his office at the campaign headquarters, Atiku said it was imperative that they worked assiduously to reclaim the mandate, not necessarily because of him and the PDP, but to strengthen democracy and the electoral process and for generations unborn.”
Those listed as members of the team include: Chief Chris Uche (SAN), Mr. Paul Usoro (SAN), Tayo Jegede (SAN), Ken Mozia (SAN), Chief Mike Ozekhome (SAN), Mahmood Magaji (SAN), Joe Abraham (SAN), Mr Chukwuma Umeh (SAN), Dr. Garba Tetengi (SAN) and Chief Emeka Etiaba, SAN.
Others are: Chief Goddy Uche (SAN), Prof. Maxwell Gidado (SAN); the National Legal Adviser of the PDP, A. K. Ajibade (SAN), Mr. O. M. Atoyebi, (SAN), Mrs. Nella Rabana (SAN), Paul Ogbole (SAN), Nuremi Jimoh (SAN), and Abdul Ibrahim (SAN).
Recall that the PDP had accused the Independent National Electoral Commission of reneging on its promise of free, fair and credible elections.
The party held that figures relied upon by INEC to declare the presidential candidate of the All Progressives Congress, APC, Asiwaju Ahmed Tinubu, winner of the presidential election were at variance with the actual votes cast.
It also held that INEC failed to abide by provisions of the Electoral Act and its own guidelines to upload the election results from the polling units using the BIVAS thereby giving room for the falsification of figures to give the APC an undeserved victory.
Source: Vanguard