Thursday 12 January 2023

Osun Tribunal: They can run, lie but law, truth shall prevail By Ismail Omipidan


Barring any die-minute change, the Osun Election Petitions Tribunal will this Friday, January 13, see the parties in the governorship election litigation adopt their final written addresses.

Since 1999, outcomes of Election Petitions Tribunal sittings have in no small way helped to deepen the country's electoral system. I am persuaded that this particular case will not be an exception.

Like I predicted before the tribunal began sitting, the  revelations that came out from the Tribunal were indeed stunning, with the Independent National Electoral Commission (INEC), witness admitting under oath that there were "seeming" overvoting in the July 16 governorship election. Even the Governor Ademola Adeleke's Forensic Examiner also confirmed that there were overvoting in Osun Governorship Election. 

What are the issues before the Tribunal? Fundamentally, the All Progressives Congress, APC, and its candidate in that election, Oyetola, are challenging the eligibility of Senator Adeleke to stand for the election in the first instance and they are also contesting the fact that contrary to INEC's declaration, the Peoples Democratic Party, PDP, and its candidate in that election, Adeleke, did not score the lawful majority votes to be declared as the winner of the July 16 governorship election.

The Tribunal will for instance determine whether it was lawful and logical for INEC to have issued another CTC of BVAS report to the PDP and Adeleke after Oyetola and APC had filed their petitions in court, based on the first CTC BVAS report issued to them by INEC without any proviso from INEC as at the time it was issuing it that the report was either an Interim or unsynchronized one.

All the above and many more are some of the issues the Tribunal will be helping Nigerians to resolve in the days ahead having listened to both parties present their cases.

Since the introduction of  the BVAS (Bimodal Voters Accreditation System) by INEC, Osun will be the first place where the BVAS report is being put on trial.

INEC as an institution would have done its best to ensure a seamless process. However, since those saddled with the responsibility of operating the technology are not angels, there are bound to be rooms for improvement.

In essence, the decision by Oyetola to challenge the outcome of the July 16 Osun Governorship poll should never be seen as an attempt to impugn on the integrity of INEC. Rather, the immediate past Osun governor should be commended for taking to the path of civility and the rule of law; and for helping to deepen the country's democratic values and the electoral system.

They can run and lie but God and the Tribunal have the final say. The law and the Truth shall prevail in the end.

Before the Tribunal adjourned on December 22 to January 13, below is the summary of the three days proceedings:

Day 1

The cross of the event on this day was the issue of a procedural error in tendering documents before the Tribunal.

Counsel for INEC, Professor Paul Ananaba, SAN, had filed four schedules containing the list of witnesses to be called and list of documents to be tendered. 

Oyetola's counsel, Prince Fagbemi, SAN, said he had seen the schedules containing the EC8A, EC8B, EC8C, EC8D and EC8E and confirmed that they had jointly inspected the documents, saying he had no objection to the tendering of the said schedules.

He also said as for the schedule with respect to the BVAS machine, the INEC counsel had not shown the Petitioners' counsel any of it, hence, it should not be allowed to form part of the evidence to be tendered before the tribunal.

While ruling on the application to tender the schedule, the tribunal, led by Justice Tertsea Kume, said the column containing the BVAS machine was not substantial enough to cause injury to the case of the petition and subsequently admitted the schedule as exhibit.

The tribunal went further to admit Form EC8A, EC8B, EC8C, EC8D and EC8E as exhibit and marked them accordingly.

Immediately after the ruling, counsel for Oyetola rose and asked the tribunal to vacate its order which admitted the documents on the ground that the said documents as listed in the schedule were not properly tendered.

He said though the petitioners counsel had jointly inspected the documents with the respondents', at the point of its tendering before the court, it must be shown to them to be sure that the documents inspected were the ones sought to be tendered.

He argued: "There are serious fundamental procedural irregularities here. INEC never sought to tender the documents and could not have done so. What they sought to tender were the schedule containing the list of the said documents. If they were to tender any documents, they will bring them here, but I never saw any.

"The contents of the schedule were never tendered. For it to be tendered, there must be an application to tender them and it is then we will know that what we examined is what is being tendered and then we can say we agree or not. This is cardinal. 

"So as not to deny us our right to fair hearing, I will urge your Lordships to vacate the order admitting those documents contained in the schedules", Fagbemi argued. 

Replying to the issue raised by Fagbemi, the Counsel for INEC, Professor Paul Ananaba, SAN, counsel for Adeleke, Onyeachi Ikpeazu SAN and counsel for PDP, Alex Izinyon, SAN, agreed that there was a procedural issue in the tendering of the documents.

They conceded that the portion where the said documents were admitted should be set aside so that the INEC counsel could re-tender the documents in question.

The tribunal chairman subsequently agreed with the petitioners' counsel and set aside the earlier ruling which admitted the documents.

Subsequently, INEC counsel sought to re-tender the documents, which are Forms EC8A, EC8B, EC8C, EC8D and EC8E and the petitioners' counsel said they have objection to the admissibility of the documents but reserved their objections till the final address stage.

Day 2

This was the day INEC witness, a Deputy Director in its ICT department, Mrs. Abimbola Oladunjoye, admitted while giving evidence before the Tribunal that there was overvoting in the July 16 election. 

Chief Akin Olujinmi, SAN, cross examined Oladunjoye who was referred to as a star witness of INEC.

She admitted that in Ward 4 unit 7, Ede South Local Government, there was an overvoting of 75, as the figure of accreditation on the BVAS report presented by INEC was 313, while the result on form EC8A was 383.

Oladunjoye's attention was also drawn to paragraph 21.36 of her witness statement where she stated that the accreditation figure was 830, but in the BVAS report presented by INEC, the figure of accreditation was 793, admitting that there was an over voting of 37.

The witness also admitted that in paragraph 26.7 of her witness statement, there was an accreditation figure of 402, while the accreditation figure on the INEC BVAS report was 263, admitting that there was overvoting of 139.

Also in paragraph 23.24 of her witness statement, Oladunjoye agreed that the accreditation figure she mentioned was 448, while the accreditation figure on BVAS was 224, admitting that there was an overvoting of 224.

She admitted that she signed and certified a BVAS report for the petitioners, and further said that the copy of the report was different from the one issued to the respondents, adding that she never indicated that the report issued to the petitioners was an interim document which would be subjected to synchronisation.

She testified that the synchronisation was done after election results had been declared on July 17, 2022 and BVAS report had been issued to the petitioners on July 27, 2022.

Done with the cross examination of the witness, Chief Olujinmi hinted that the irregularities identified in the BVAS report presented by INEC were just a tip of an iceberg, saying, there were loads of overvvoting during the election.

Earlier, the tribunal had admitted as exhibits the load of BVAS machines and CTC of Form EC8 series brought to the tribunal by the INEC counsel. 

After the Cross examination of the witness, the INEC counsel, Professor Ananaba informed the court that he would no

longer be calling any other witness, as he applied to close his case.

Counsel for Adeleke, Onyeachi Ikpeazu, subsequently opened his defence by tendering Form EC8 series used for the election. 

Day 3

This was the last day of the sitting during that week. This day, Governor Adeleke's Forensic Examiner, who is also a statistician, Samuel Oduntan, also told the Tribunal that there was overvvoting in the governorship election that brought in Governor Ademola Adeleke in some of the polling units he examined. 

Oduntan, while giving evidence in defence of Adeleke's declaration said he was paid by Adeleke to extract information through physical inspection of BVAS Machines used for the election and compared it with the Form EC8 series where he discovered that overvoting occured in some polling units, particularly six units in Ede South. 

The witness told the panel that in Ward 4 unit 7, of Ede South, the accreditation figure he mentioned in his witness statement was 313, while the accreditation on the BVAS report was 383, which showed overvoting.

The effort of the Adeleke's counsel, Onyeachi Ikpeazu, SAN, to prevent the witness from making comparison on the BVAS report and the result announced to show overvoting was overruled by the tribunal following the arguments of the petitioners' counsel, Akin Olujinmi, SAN, that there was no law preventing him from cross-examining the witness. 

The witness also testified that for Ward 4 Unit 8 of Ede South Local Government, the accreditation figure on the witness statement was 830, while the accreditation figure on BVAS report presented by INEC was 793, showing overvoting of 37.

He said though he did not work as INEC official on the election day, he carried out physical inspection of the BVAS machines where he carried out his analysis.

Also on this day,  Reverend Jenyo appeared before the tribunal and tendered Adeleke's certificates, bearing Penn Foster High School and Atlanta Metropolitan State College.

Claiming that part of his responsibility as Adeleke's P.A. was to keep his personal documents, Reverend Jenyo said he has never worked in any of the institutions purported to have been attended by the Governor.

He added that though his International Passport does not show he attended Adeleke's graduation in the US, he claimed that he attended the Graduation ceremony. 

After the Cross examination of the two witnesses, the Adeleke's counsel closed his case.

Subsequently, counsel for PDP, Alex Izinyon, SAN, also opened his case and told the panel that he would not be calling any witness but would be relying on the evidence of the two other respondents.

He then tendered some documents and closed his case.

The tribunal then adjourned till January 13, 2023 for the parties in the matter to adopt their final written addresses.

Here, I will leave you with the words of Soviet leader, Joseph Stalin, where he said: “I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this — who will count the votes, and how.”  This is why the BVAS is on trial in Osun.

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