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Monday, 30 January 2023 19:49

[OPINION] What Osun Governorship Election Petition Judgment Portends For The 2023 General Election - A.J. Owonikoko

"Where the number of those who voted in a PU exceed the accredited voters, it means the BVAS was by passed. The regulation of INEC is that Zero result should be entered. But that was not done.
If this can happen in Osun Isolated elections, allowing the court to rubbish the process, am trying not to be pessimistic over the coming general elections."

Lobatan - source unattributed but seems a deduction of the ratio in Oyetola v Adeleke majority judgment rendered today (27/1/23) at the Osun State Governorship election petition tribunal .

Now, I haven't read the judgment , but the summary in the passage quoted above would appear to be result of a harmonious reading of sections 47 and 51 of the Electoral Act , 2022 statutorily prescribing the only mode for voter accreditation (which must be by BVAS) and authority and duty vested in the presiding officer on treatment of result of election in his unit where over-voting is apprehended during the counting of votes . The presiding officer must ( perforce -with no other option) cancel the result once over voting is ascertained.

Now, two stages of vote countermand are provided for in a polling unit. It was never a call for a Presiding officer to make in the past - rather the Electoral Officer in charge of the relevant local government area, used to make that determination , prior to enactment of the Electoral Act 2022 . Henceforth , If BVAS malfunctions in the course of accreditation, and cannot be immediately replaced , the election in the affected unit must be postponed by the presiding officer and re-conducted within 24hours . That is what section 47(3) of the Act prescribes. If, on the other hand, the BVAS did not present any hiccup in accreditation to warrant postponement, there is yet another hurdle to summount- the Presiding Officer cannot announce or declare result in that polling unit , where the number of BVAS-determined accredited voters is less than the number of total votes recorded ( whether valid or invalid votes) . The excess is a statutorily defined case of over voting . Arising from such over-voting , Section 51 (2) imposes a duty on the Presiding officer to cancel the election in that polling unit; and sub (3) states that in the event of sub (2) "there shall be no return for the election until another poll has taken place in the affected polling unit ."
The net effect of these novel provisions is that the Presiding Officer at a polling unit is King - it is not any longer , the returning officer at the head of the pyramid in collation of the election result, as had hitherto been the case in our electoral system . It then warrants that the success or failure of any election will be substantially determined at the polling unit. All other electoral officers above that level are merely to discharge largely ministerial arithmetic duties with very limited discretion to determine the outcome. I trust politicians to have learnt a lesson from the OSUN judgment to re-prioritise their attention , logistics and deployment of resources at the base in the coming 2023 general elections: polling units . Gone are those days when politicians only needed to buy the Electoral Officer and State Collation officers to undo the wishes of the voters as expressed in the ballot . This is where the "structure" argument finds its most compelling validation .

Above summation has been the premise for my fear that the 2023 general elections will be easier undone by the very antidote invented to enhance its credibility-failure or manipulation of tech-apps designed and enacted as obligatory to be strictly observed for its seamless and transparent conduct . Once BVAS fails in a polling unit , voting must be rescheduled to recommence afresh within 24hours in that unit . Now how many polling units in a state ought to be affected by such cancellation to conclude that the outcome of the overall election has not been affected in terms of majority votes or 25% threshold in a presidential election - or even governorship ? A myriad of causes can be hazarded to impose , induce or simulate this polling unit hiccup with a view to restrategising or quasi gerrymander, the process to achieve a predetermined outcome . I can see four different role actors in a vantage place to make this happen acting collectively or at cross purposes- INEC officials , IT support backbone , security operatives to provide safe atmosphere for conduct of fresh elections (where postponed or canceled) and most crucially , political gladiators . The most likely outcome is an inconclusive presidential election at first ballot . Will the electorate have the trust and patience to cooperate and believe in the process of staggered rescheduled elections in isolated voting areas across different, disparate states and local government areas -especially when the likely effect of those rescheduled elections on the partially concluded election can be projected to favour a particular political interest in terms of threshold of votes and spread required to return an outright winner ? Oyetola v Adeleke judgment pronounced today (27/1/23) in the Osun State governorship election petition, at least serves to warn us of the danger and conundrum that lie ahead of the general election due on 25th February , and 11th March 2023. It is difficult to envy INEC in the discharge of its gargantuan task ahead given the Achilles heel of the BVAS solution now uncovered for exploitation by the OSUN state guber petition judgment . One can only say for now : fingers crossed

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