Notes on Osun Election Tribunal’s Verdict
Postscript by Waziri Adio
The Friday verdict of the Osun State governorship election petition tribunal is generating outsized ripples. This is not surprising. Coming less than a month to the landmark presidential election, the decision of the tribunal sure will affect electoral permutations for the state and beyond. More critically, the split judgement has pushed to the fore certain critical issues around the 2023 general election. These issues are worth interrogating. Here, I will examine some of these concerns and other incidental matters.
First a quick recap of the case and the rulings.
After the release of the result of the 16 July 2022 governorship election in the state, Mr. Adegboyega Oyetola and his party, the All Progressives Congress (APC), approached the tribunal to declare Oyetola, and not Mr. Ademola Adeleke of the Peoples Democratic Party (PDP), as the lawful winner of the election.
Oyetola and his party asked the tribunal to decide on three issues: one, that Adeleke was unqualified to run for the office of governor; two, that there was over-voting in 749 (later 744) polling units; and three, that the election was not conducted in compliance with the Electoral Act 2022. They requested the tribunal to cancel results in the 744 polling units and declare Oyetola the winner or “in the alternative and only in the alternative” cancel the election for substantial non-compliance and order INEC to conduct a fresh one.
On the first issue, the petitioners claimed that Adeleke’s secondary school paper was forged. On the second and third issues, they cited sections 47(2) and 51(2) of Electoral Act 2022 that stipulated that smart card reader or any other technological device prescribed by INEC should be used for the accreditation of voters and that results should be cancelled when there is over-voting.
The petitioners presented reports which indicated that in the affected polling units the total number of voters in the declared results was more than the total number of voters accredited through BVAS (the technological device prescribed by INEC). The divergence ranged from as low as one to over 200 in the individual polling units.
The tribunal ruled unanimously that Mr. Adeleke was qualified to run for the office of governor. On the two other issues, however, members of the tribunal did not achieve a consensus, ending in a 2:1 split. In the minority ruling, Justice B.A. Ogbuli dismissed the petition, saying “there is paucity of evidence or none to sustain the petitioners’ case” and “the petitioners’ case has not been satisfactorily proved.”
However, the majority ruled in favour of the petitioners. Justice T.A. Kume (chairperson of the tribunal) and Justice Rabi Bashir dismissed the objections by the respondents and even the issues raised by their fellow judge. They held that: “from the examination of the evidence of the parties, we find as a fact that over-voting occurred in the election conducted on the 16th of July 2022… The duty of the tribunal is to deduct the said invalid votes from the lawful votes to determine who had a majority of lawful votes.”
It is worth noting that a PDP witness who claimed to be a statistician and forensic expert admitted that there was over-voting in only six polling units but that it was not enough to change the outcome of the election. Under cross-examination, an INEC official who served as a respondent witness also acknowledged that overvoting occurred.
In their ruling, the majority held that the evidence tendered by the petitioners spoke for itself. They relied on the report of BVAS accreditation issued by INEC and not withdrawn during the proceedings. The judges said both Oyetola and Adeleke benefited from the overvoting. They cancelled the 181,540 votes cast in the 744 polling units across 10 local government areas of the state. Adeleke was more impacted as the affected polling units happened to be mostly in his stronghold. He lost 112, 705 of the cancelled votes compared to Oyetola’s 60, 096 lost votes.
The deduction shrank Adeleke’s votes from 403, 371 to 290, 266 while Oyetola’s votes dropped from 375, 027 to 314, 921. On the basis of this, the tribunal declared Oyetola the winner of the election and asked INEC to withdrawal Adeleke’s certificate of return. Adeleke has said he will appeal the decision. This is expected to go all the way to the Supreme Court.
The ruling evokes the memory of a similar verdict delivered on 26 November 2010. The was when the Court of Appeal sitting in Ibadan sacked Prince Olagunsoye Oyinlola as governor and declared Ogbeni Rauf Aregbesola as the winner of the 2007 governorship election in Osun State. The court cancelled results in 10 local government areas of the state because of violence and electoral malpractices. On account of that, Oyinlola’s votes plunged from 426, 669 to 172, 880 while Aregbesola’s fell from 240, 722 to 198, 799. Oyinlola could not appeal the decision because the Court of Appeal was the last stop for governorship cases at that time. Without prejudice to how the case will pan out on appeal, this may be a case of history repeating itself.
Now to the issues emerging from the Friday judgements.
The first issue is that many have asked how overvoting is possible with the use of the Bimodal Voters Accreditation System (BVAS). This is a very important concern. The introduction of BVAS and the INEC Results Viewing (IReV) portal has increased the faith of many Nigerians in the electoral system. Nigerians practically went to war with their legislators to insist on electronic transmission of votes. Many are ready to swear that votes would count now more than before, and this has inspired confidence in the electoral system.
The news that there could be overvoting with BVAS is close to a crisis of faith for some. I don’t have all the information, but my sense is that the technology has not failed. Most likely, the technology has not only narrowed the room for mischief by politicians but might have also exposed those trying to game the machines in their strongholds (our politicians safely play hanky-panky in places where they are strong). The majority and the minority rulings raised important points that INEC needs to look into, in addition to providing credible explanations about what happened in Osun and offering solid reassurances.
The second issue is related; it is about the conduct of INEC officials. INEC staff provided different reports of accredited voters. Saying that this amounted to “tampering with official records,” the majority ruling stated that: ‘The conduct of the first respondent (INEC) in the said election under consideration has produced multiple accreditation reports contrary to its avowed declaration to conduct free, fair, and credible elections.” This is a grave claim that should be investigated internally by INEC and anyone found wanting should be made to face the music.
The third issue is about the need for political actors and electoral officials to have a deeper understanding of Electoral Act 2022. Some issues came up in the course of the case that showed that people were still relying on their knowledge of the 2010 electoral law. The elections in Ekiti and Osun were conducted with the 2022 law. This is also the law that will be used for the 2023 general election. After the election, some of the sections of the law may also need to be amended. Based on some of the provisions, lawyers versed in technicalities will be in business post-election.
The fourth issue is about qualification for high office. This was one of the issues for determination because Adeleke’s school certificate was alleged to have been forged, a position sustained by the tribunal. But the tribunal unanimously ruled he was qualified to run for the office of governor because he has other certificates that fulfil the condition of being “educated up to School Certificate level or its equivalent” set out in Section 177 (d) of the 1999 Constitution. However, Section 182 (j) of the same constitution says that someone who has presented a forged certificate to INEC is disqualified from running for office of governor of a state. The was not addressed in the rulings.
But beyond the present case, the fact that “School Certificate level or its equivalent” continues to be in the constitution as requirement to occupy public office should be serious cause for concern. By the way, under Interpretation in Section 318 of the 1999 Constitution, the equivalent of School Certificate level includes primary school leaving certificate and service in public or private sector or just ability to read and write or any other qualification acceptable by INEC. You read it right: you can run for governor and even president with just primary school plus work experience or by presenting any other qualification that INEC fancies. It is strange that this has never come up as an area that needs to change in any of the attempts to amend the 1999 Constitution.
The last issue is that of the language of the judges. Both the majority and minority rulings can be accused of some linguistic overreach in a few places. In the dissenting judgement, Justice Ogbuli wrote that “it will be unfortunate for a contestant who lost an election to hurriedly apply to get a report from an incomplete source and then to build a case to topple a candidate who has been declared the winner. It is exactly the case here.” This kind of certitude opens judges to the kind of thing they shouldn’t be accused of.
But the majority ruling had a line that actually dropped the mic, and make many drop their jaws. “The 2nd Respondent cannot ‘go lo lo lo lo’ and ‘buga won’ as the duly elected governor of Osun State in the election conducted on 16th day of July 2022. See Kizz Daniel song”. It is difficult to miss the innuendo. While there may be the temptation for judges to show that they are culturally current, they should refrain from descending so lo lo lo into the arena.