In my previous writeup on the above, I made a holistic appraisal of all that transpired during the election and came to the obvious conclusion that the election fell far below the standards a priori set by INEC and the expectation of Nigerians. Like I surmised in that writeup, the major difference between the 2010 electoral Act and the 2022 electoral Act are the; 1) Direct Transmission of the results from the polling units, 2) the use of BVAS for accreditation of voters and the same BVAS for Transmission of results direct from the polling units, 3) Review of results by the INEC once any of the political parties make a complaint to the Chief Collation Officer. The review process should be completed before the declaration of a winner is made because once a winner is declared by the Chief Returning Officer, he becomes what lawyers call FUNCTUS OFFICIO. At this stage he lacks the powers to REVIEW the results no matter how compelling the need to do so is. Once a winner is declared by the Chief Returning Officer, only the courts are seized with the powers to review the process and results. The stage at which the 2023 presidential election is now, only the courts can review what happened and what has been done. Whether the results are transmitted or transferred, the operative word is where the activity should take place viz: THE POLLING UNITS. The law states that the Presiding Officer shall electronically transmit by BVAS the results and transfer by BVAS a scanned copy of the INEC form EC8A (Result Sheet) to the INEC Result Viewing (IreV) portal before submitting the document for collation. It is this that forms the primary records of the presidential election. The PO becomes FUNCTUS OFFICIO once he has finished his work at the polling unit. His responsibilities do not extend beyond the polling units except to hand over the physical documents to Ward Collation Officer for COLLATION.
The reason for this is clear, the exercise is done in the PUBLIC GLARE OF MOST OF THE PEOPLE WHO WITNESSED THE VOTING for the purposes of TRANSPARENCY, CREDIBILITY AND ACCOUNTABILITY. Once this is not done, nobody can vouch for the CREDIBILITY AND INTEGRITY OF THE FIGURES. Most manipulations take place at collation centers because VOTING DID NOT TAKE PLACE THERE, they only play and juggle with figures. It is for this reason that the law provides that where there are conflicts between transmitted or transferred results and the collated results, the transmitted results prevail. This presupposes that the TRANSMISSION OF RESULTS FROM POLLING UNITS IS A CONDITION PRECEDENT TO ANY FORM OF COLLATION because the Collation Officer at any level is not a SPIRIT to determine whether the documents given to him are AUTHENTIC. It should be noted that the results which are collated are the ones which are obtained from the polling units (AS THE PRIMARY SOURCE OF DATA ) where the voting took place. To go ahead to collate election results without reference to the specific provisions of the statutes regarding votes obtained at the polling units is flagrant violation of the 1999 constitution (as amended), Electoral Act 2022, the rules, guidelines and regulations pursuant thereto ( subsidiary legislation). What happened to the press releases and assurances by the INEC Chairman and the Director of Voter Education on the ELECTRONIC TRANSMISSION OF RESULTS FROM POLLING UNITS TO THE IreV portal?
Usually, it is political parties that seek to manipulate the outcomes of elections to suit their purposes and it is the duty of INEC to put them in check to make sure that the right things are done. Surprisingly, it is INEC that is breaking the constitution, electoral Act 2022, rules, guidelines, provisions for reviews and regulations not the political parties. Therefore, IF THE CITADEL OF JUSTICE IS CORRUPT, WHAT WILL HAPPEN TO THE BODY POLITY? IT WILL ROTTEN AND COLLAPSE!!! Those who always challenge aggrieved parties to GO TO COURTS in the erroneous beliefs that they would always have their ways with the courts make great mistakes because the decisions of courts are not as predictable as they think. Cases of miscarriage of justice by the courts are exceptions rather than the rules. JUDICIARY IN NIGERIA DEAL WITH SUBSTANTIAL JUSTICE. The emergence of the Social Media has led to unnecessary BULLYING OF THE COURTS BY LAYMEN who think that justice must be delivered based on SENTIMENTS rather than the LAW. Judges are EXPERTS IN LAW and if you take your time to painstakingly read their judgements, they often explain why they took a particular decision. For example, any case where a party is accused of CRIMINAL ACTION MUST BE PROVED BEYOND REASONABLE DOUBT. You cannot prove your accusation beyond reasonable doubt by commencing your matter by ORIGINATING SUMMONS. You must commence the case by WRIT OF SUMMONS so that WITNESSES ARE CALLED WHERE NECESSARY. This is AS FUNDAMENTAL AS IT IS FOUNDATIONAL.
It is not the fault of the courts if people lose their cases because they used inappropriate processes and methods. The court is not a FATHER CHRISTMAS and cannot help you when you are going the wrong path. Before you criticize a court judgement, first find out the reasoning behind it. Judges are not in a position to defend themselves, therefore people should be mindful of this reality when they assail their characters on account of certain judgements they deliver. This does not in anyway presuppose that all judges are saints but most of them are sober and patriotic . I urge the society not to be quick to judge them no matter what. It is only advised that those who seek the intervention of the courts must be painstaking and ensure they dot their i’s and cross their t’s because it is easier to defend a case than to initiate it. This is because what a defendant needs to do is to find a loophole and fault in your processes to get it struck out or dismissed. He will only bother to give his defense if your processes are right. To use Originating Summons for a matter that ought to come by way Writ of Summons makes the entire matter liable to being struck out by the courts without the need to go into the merits of the case. Litigants should not spoil good cases by using inappropriate processes only to turn around to blame the courts using emotional blackmail.
The 1999 Constitution (as amended) stipulates that before any person can be declared president, he must poll the highest number of votes and obtain 25% of the votes cast in a minimum of two-thirds of the states in the federation and the federal capital territory. The question to ask is ; Can a candidate who obtains the highest number of votes and scores 25% percent of votes cast in say 30 states out of the 36 states in Nigeria but score say 10% of the votes cast in the FCT be said to have met this requirement? Why didn’t the framers of the constitution specifically state that, IN APPLYING THIS SECTION, FCT SHOULD BE TAKEN AS A STATE LIKE THEY DID IN THE SECTION ON REVENUE ALLOCATION IN THE FEDERATION? The truth is that the 1999 constitution (as amended) never recognized the FCT as a state and that is why residents of the FCT only vote in the national elections and not in STATE ELECTIONS as residents of states . Unlike governors of states, the minister of the FCT does not enjoy any immunity, cannot veto any bill, cannot be impeached by the national or state assemblies and can be removed by the president just like any other minister. The constitution of the federal republic of Nigeria does not recognize the FCT as a state except where specifically provided like in revenue allocation. There is no such provision in the section on the election of the president of Nigeria. Therefore, whoever is declared president of Nigeria must score a minimum of 25% of the votes cast in FCT in addition to meeting other requirements.
He who alleges must prove is a basic tenet of legal jurisprudence. Now that this matter is in the domain of the judiciary, those who have complaints should present them succinctly and clearly to the courts in order to get the redress they seek. The time or season for propagandas, , demonstrations, roadshows and social media gimmicks is gone. What we require now are HARD FACTS. If you don’t have hard facts to present, you better let the matter go and accept defeat no matter how unpalatable it may seem. This is not the time for EMOTIONAL OUTBURSTS and social media bullying and gymnastics. Nearly cannot kill a bird and in an election where the winner takes all, only the FIRST POSITION matters. The second position has the same effect as the last position because it has no moment. Other political parties can only seek redress within the ambit of the laws ranging from remediation to outright cancellation of the presidential election on accounts of violations already stated. There is no case against the APC, they only happened to be the present beneficiaries of the current INEC shenanigans. If they manipulated the results at collation centers, it was because INEC allowed them to have their way. They procured the active connivance and collusion of INEC who should bear the full ACCOUNTABILITY. Anybody who desires to challenge the declared results should not accuse the APC of any crimes or wrongdoings because you require to prove all criminal allegations beyond all reasonable doubts which is always difficult to do.
Having said these, the following infractions and violations of election statutes are evident:
1) FAILURE TO ELECTRONICALLY TRANSMIT USING BVAS THE RESULTS OF THE PRESIDENTIAL ELECTION AT THE POLLING UNITS
This is a mandatory provision of the 2022 electoral Act and the associated subsidiary legislations. The transmission is to IreV portal.
2) FAILURE TO ELECTRONICALLY TRANSFER THE SCANNED COPY OF THE INEC FORM EC8A (RESULTS SHEETS) TO INEC IREV PORTAL FROM THE POLLING UNITS.
This is a mandatory provision of the 2022 electoral Act and the associated subsidiary legislations.
3) FAILURE TO ELECTRONICALLY TRANSMIT COLLATED RESULTS OF WARDS, LOCAL GOVERNMENTS AND STATES TO IREV PORTAL
This is a mandatory provision of the 2022 electoral Act and associated subsidiary legislations.
4) FAILURE OF THE COMMISSION TO EXERCISE ITS POWERS TO REVIEW THE RESULT OF THE PRESIDENTIAL ELECTION DESPITE COMPLAINTS AND OBSERVATIONS OF IRREGULARITIES BY THE POLITICAL PARTIES
This is a mandatory provision of the 2022 electoral Act and associated subsidiary legislations . As promised by the INEC Chairman when the issue was raised at national collation center Abuja by the representatives of political parties, the Review was to be done after the collation but BEFORE THE DECLARATION OR RETURN OF THE WINNER OF THE PRESIDENTIAL ELECTION which can be done within 14 days of the date of the presidential election. Why the rush to declare a winner if the law gives INEC enough time to put its house in order? From the electoral Act, a period of seven days was given for this review exercise which is 4th March 2023. In making the declaration or return of the winner, the fact of this Review should be stated. The review was not done, neither was the fact of the review stated before the declaration or return of the winner which fact has rendered the Commission functus officio. The commission has no powers to do any review at this stage because it has returned the winner of the presidential election and issued him with a Certificate of Returns WHICH IS ITS FINAL FUNCTION IN THE PRESIDENTIAL ELECTION.
5) FAILURE TO ADHERE TO THE PROVISION OF THE 1999 CONSTITUTION (as amended) TO THE EFFECT THAT THE WINNER OF THE PRESIDENTIAL ELECTION MUST SCORE 25% OF THE VOTES CAST IN THE FCT IN ADDITION TO HAVING THE HIGHEST NUMBER OF VOTES SCORED IN THE ELECTION. HE MUST ALSO SCORE AT LEAST 25% OF THE VOTES CAST IN A MINIMUM OF TWO-THIRD OF THE STATES OF THE FEDERATION.
For the purpose of the presidential election, FCT is not treated as a state. Residents of the FCT do not vote in STATE ELECTIONS unlike residents of the states of the federation. Therefore, the word, ‘AND’ used in the constitution as it affects the FCT is used CONJUNCTIVELY. The FCT is not listed in the constitution as a state and federating unit of Nigeria. No state can substitute the requirements for the FCT. The FCT is different from the states because while the states have Local Government as a tier of government, the FCT has the AREA COUNCILS which are not a tier of government. The Supreme Court cannot substitute a state for the FCT because it would amount to an amendment of the Constitution which is ULTRA VIRES OF ITS POWERS. Therefore, the winner of a presidential election in Nigeria must score at least 25% of the votes cast in FCT.
I was obviously exasperated at the conduct of INEC as you can infer from my previous writeup on this matter. The accusations of internal sabotage was evident then but what was not evident was whether the topmost echelon of INEC was involved in the perfidy. The Chairman of INEC alluded to the fact of internal sabotage when he addressed the press earlier on Saturday 4th March, 2023. He threatened to punish the culprits after due investigation. The INEC Chairman admitted that the presidential election was BADLY FLAWED WHICH IS AN ADMISSION OF GUILT. But that makes no sense because the promise to do a better job on the state election cannot rectify the injuries done at the national elections. For example , how do you explain that as at today, 5th March, 2023, exactly eight days after the presidential election, the results of the voting that took place in the polling units have all not been uploaded to the IreV portal yet the election has been declared for one of the candidates by INEC four days ago. Was there an opportunity for independent verification and validation of the collated results in this scenario? THE INEC CHAIRMAN OBVIOUSLY KNEW THAT THE ELECTION WOULD BE CANCELED BY THE COURTS AND THAT MAY EXPLAIN WHY HE TOOK THE WRONG STEPS ALL THE WAY AFTER FINDING OUT THAT THE COMMISSION HAS MESSED UP BIG TIME. The Commission has a new presidential election to redeem itself because it’s conducts in the last presidential election were NAUSEATING. IT IS A SHAME!!!!!!!
· Godson O. Moneke, a quantity surveyor, economist, sociologist, administrator and sociopolitical advocate wrote from Abuja.
