Alhaji Atiku Abubakar The Serial Election Petitioner 1.

By Michael Chibuzo
The first runner-up in the 2023 Presidential Election and former Vice President, Alhaji Atiku Abubakar has become a regular contestant for the presidency with the 2023 Presidential Election being his 5th attempt in the Fourth Republic. As usual, he came second and in keeping with his tradition, he filed a petition challenging the election of President Bola Ahmed Tinubu at the Presidential Election Petition Tribunal (PEPT). At face value, the petition filed by Atiku through his legal team headed by J. K. Gadzama, SAN is much better than that of the LP Presidential Candidate, Mr. Peter Obi.

That notwithstanding, the Atiku petition still reeks of conjectures, vague claims and ridiculous averrments. The petitioner was simply desperately looking for any hook to cling onto knowing fully well that this may have been his last shot at the presidency. The 150-paragraphs petition was predicated on four grounds namely:

1. The election of the 2nd Respondent (President Bola Tinubu) is invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.

2. The election of the 2nd Respondent (President Bola Tinubu) is invalid by reason of corrupt practices.

3. The 2nd Respondent was not duly elected by majority of lawful votes cast at the election.

4. The 2nd Respondent was at the time of the election not qualified to contest the election.

Grounds 1 and 2 of the Petition are ordinarily meant to be fused together and if merged, you will see that the grounds mirrors those of the LP and its candidate, Mr. Peter Obi just like most election petitions. This is why the Tribunal decided during the pre-hearing to consolidate the petitions of both Alhaji Atiku Abubakar and Mr. Peter Obi in addition to that of the APM for speedy hearing.

PDP informed the tribunal that they intend to call 100 witnesses to prove its case and were given 3 weeks to present all their witnesses. In the end they were only able to present 27 witnesses before closing their case.

The witnesses include the following:

1. Captain Joe Agada (Rtd) (Kogi PDP Collation Agent) 
2. Dr Solarin Sunday Adekunle (Ogun PDP Collation Agent) 
3. Barrister Uzoma Nkem Abonta (Abia PDP Collation Agent) 
4. Nicholas Msheliza (Borno PDP Collation Agent) 
5. Sani Kutigi (Niger PDP Collation Agent) 
6. Silas Onu (Ebonyi PDP Collation Agent) 
7. Dr. Abiye Sekibo 
8. Mohammed Madaki, (FCT Chairman of the PDP) 
9. Abraham David
10. Ibrahim Hamza (PDP Nasarawa State Collation) Agent 
11. Ndubuisi Nwobu (Anambra State PDP Chairman) 
12. Mr Friday Egwumah (INEC adhoc staff in Abia) 
13. Grace Timothy (INEC adhoc staff in Bauchi) 
14. Grace Ajagbonna (INEC adhoc staff) 
15. Abedemi Joseph (INEC adhoc staff) 
16. Obosa Edosa (INEC adhoc staff in Edo) 
17. Ms Alheri Ayuba (INEC adhoc staff) 
18. Ms Sadiya Haruna (INEC adhoc staff) 
19. Dr. Alex Adum Ter (DG PDP National Situation Room) - Star witness 
20. Captain Olatunji Shelle (Rtd) 
21. Samuel Oduntan (a statistician) - Expert Witness 
22. Dino Melaye (PDP National Collation Agent) - Star Witness
23. Janet Nultu Turaki (INEC adhoc staff in Yobe)
24. Christopher Bulus Arudo (INEC adhoc staff in Bauchi) 
25. Victoria Sani (INEC adhoc staff in Niger State) 
26. Hitler Nwala (IT Consultant on BVAS) 
27. Mike Enahoro-Ebah (Lawyer and 'Human Rights Activist')

A cursory look at the facts of their petition shows that for ground 1, they are contending that the election of President Bola Tinubu is invalid because INEC according to them did not comply with the provisions of the Electoral Act 2022. The three alleged non-compliances include:

a. Failure of INEC to electronically transmit election results to IREV and the INEC electronic collation system. 

b. That the Constitutional geographical spread was allegedly not met by the 2nd Respondent in line with Section 134(2) of the Electoral Act before INEC declared him winner. Their emphasis is on the FCT. 

c. That the margin of lead between President Bola Tinubu and Atiku Abubakar the 1st runner-up (1,810,206 votes) is allegedly lower than the number of PVC collected in polling units where elections did not hold or were cancelled, which to them made the election inconclusive.

The PDP in their petition dedicated 54 out of the 150 paragraphs contained therein to the issue of electronic transmission of votes from the polling units to the IREV! During their hearing, it was also evident that the PDP, having seen that they actually lost the election (from their internal collations), decided to concentrate on electronic transmission of results to IREV or the lack of it as their major fishing route to overturn the election. Out of PDP's total of 27 witnesses that eventually testified, ten (10) were INEC adhoc official at ten different polling units, which the party subpoenaed to come and testify.

One would expect that Atiku's counsels while leading these 10 INEC adhoc workers in evidence would try and tilt towards establishing electoral fraud in those polling units, however they were after establishing that the adhoc officials were unable to transmit the filled form EC8As that was captured using the BVAS camera feature to the IREV portal. Just like the Peter Obi petition, PDP and Atiku Abubakar are desperate to hinge the credibility of the entire election on the transmission or non-transmission of form EC8As to the IREV portal as initially promised by INEC prior to the general elections. All the INEC adhoc workers during cross examination affirmed that election went peacefully in their units and that they successfully entered results of votes cast in the form EC8A and got party agents present to sign and collect their duplicate copies. The only difficulty they encountered was the transmission of the snapped form EC8A to the IREV portal using the BVAS device.

Atiku Abubakar's legal team contended in paragraphs 47-48 of their petition that the inability of INEC adhoc officials to upload PU results in real time to the IREV (which they described as amounting to failure of the BVAS device) was an violation of Section 60 and 64(4) and (5) of the Electoral Act as well INEC Regulations (Clause 48(a)) and meant that collation of results should not have proceeded since, collation officials at the different levels of collation were required to authenticate the results being collated with the electronically transmitted ones. According to them INEC ought to have cancelled the elections and rescheduled same to take place within 24 hours as required by Section 47(3) of the Electoral Act. Atiku and his lawyers were essentially alleging that the non-transmission of PU results directly from the polling units allowed INEC to manipulate results in favour of President Bola Ahmed Tinubu. Now let me burst their pack of misconceptions. 

Let's see what some of these relevant quoted sections talked about. Section 60 of the Electoral Act states:

_60. (1) The Presiding officer shall, after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be._

_(2) The form shall be signed and stamped by the presiding officer and counter signed by the candidates or their polling agents where available at the polling unit._

_(3) The presiding officer shall give to the polling agents and the police officer where available a copy each of the completed forms after it has 
been duly signed as provided under subsection (2)._

_(4) The presiding officer shall count and announce the result at the polling unit._

*_(5) The presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission._*

_(6) A presiding officer who wilfully contravenes any provision of this section commits an offence and is liable on conviction to a fine not more than N500,000 or imprisonment for a term of at least six months._

The above section of the Electoral Act is simply outlining the procedures for counting, recording and collation of votes at the close of voting in the polling units. *Note that, NO PROVISION in this section 60 mandates the Presiding Officer to transmit ELECTRONICALLY the announced result before the next stage of the election process will kick in.* This is where the Tribunal will rely on in dismissing this ground of non-transmission of results from the polling units as contained in the PDP's petition because the Electoral Act, which is the operational law here did not make it COMPULSORY for presiding officers to electronically transmit the results they had announced at the PU to any database. In fact in subsection 5, it ONLY mandated the Presiding Officer to TRANSFER the results including total number of accredited voters (which is resident in the voter's register and BVAS device) and the results of the ballot in a MANNER AS PRESCRIBED BY THE COMMISSION. 

In essence, the Act gave INEC the power to determine the method of collation. However, what the Electoral Act did, which is a game changer, is the unambiguous affirmation of the use of a SMART CARD READER or any other technological device as the primary means of VOTER ACCREDITATION , without which no election shall proceed. In fact in Section 47(3) of the Electoral Act, (which was mischievously quoted by the PDP and Atiku in paragraph 47 of their petition and given a strange interpretation), the Act mandated that in case of absence or malfunction of the smart card reader for accreditation, the election in such a polling unit shall be rescheduled within 24 hours to enable the provision of a smart card reader. Let me reproduce that section 47(3) of the Electoral Act here:

*_"Where a smart card reader or any other technological device deployed for accreditation of voters fails to function in any unit and a fresh card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if the Commission is satisfied that the result of the election in that polling unit will substantially affect the final result of the whole election and declaration of a winner in the constituency concerned." _*

Therefore, the Bimodal Voter Accreditation System (BVAS), which is the Smart Card Reader  INEC chose to deploy for voter accreditation and authentication in line with the mandate given to it by Section 47(2) of the Electoral Act. INEC simply went further to incorporate other functions into the BVAS, which it feels will add more value to the electoral process. One of these is the electronic transmission of results manually entered in form EC8A to a portal that will enable voters view results on a polling unit by polling unit basis. INEC also went further in exercising their powers in line with Section 148 of the Electoral Act to put in place guidelines and regulations to guide the conduct, collation and declaration of election results. The said Section 148 of the Act states as follows: _"The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration."_
It is therefore in line with this provision that INEC published the *"INEC Guidelines and Regulations for the Conduct of Elections 2022"* to provide a more detailed step by step guide for the conduct of the elections. INEC in its wisdom decided to introduce the electronic transmission of polling unit results using the BVAS device directly to a result viewing portal called IREV. It also incorporated it as ONE of the evidences (not the ONLY) to use to confirm the correctness of disputed polling unit results during collation. This is what Atiku Abubakar and the PDP (of course Peter Obi and LP) are mischievously misinterpreting to mean a mandatory step required for collation to proceed. What the petitioners are relying on in trying to prove that the result viewing portal IREV was central to the result collation process, is Clause 48(a) of INEC Guidelines and Regulations for the Conduct of Elections 2022 which states that:

*_"An election result shall only be collated if the Collation Officer ascertains that the number of accredited voters agrees with the number recorded in the BVAS and votes scored by Political Parties on the result sheet is correct and agrees with the result electronically transmitted or transferred directly from the Polling Unit as prescribed in these Regulations and Guidelines."*

The petitioners deliberately avoided Clause 48(c), which states:

*_"If no result has been directly transmitted electronically
for a polling unit or any level of collation, the provision of Clause 93 of these Regulations shall be applied."_*

Now, you want to ask what Clause 93 of the Regulations provides. Clause 93 states as follows:

*_"Where the INEC hardcopy of collated results from the immediate lower level of collation does not exist, the Collation Officer shall use electronically transmitted results OR results from the IREV portal to continue collation. Where none of these exist, the Collation Officer shall ask for duplicate hardcopies issued by the Commission to the following bodies in the order below:_*

*_(i) The Nigeria Police Force; and_*
*_(ii) Agents of Political Parties._*

In essence these aforementioned provisions in the INEC Guidelines renders the main grievance of the petitioner useless even without relying solely on the Electoral Act that didn't mention ELECTRONIC TRANSMISSION of results, because INEC had consistently maintained that the collation process would be manual regardless of the presence of the IREV Portal. Also mind you, Section 62(1) of the Electoral Act 2022 gave INEC the power to determine how results from the polling units shall be collated at every level and INEC on its part, in addition to Clause 48 and 93 also stated in Clause 91(i) of its guidelines that *Forms EC8A* and EC60E are the building blocks for any collation of results. What this means is that IREV does not determine whether collation of results should proceed or not at any level of collation. 

Crucially, as I have stated before in another article, there is another MISCONCEPTION on the provisions of Clause 48(a) of the INEC Guidelines, which is also a widespread misconception held by many Nigerians especially supporters of PDP and LP Presidential Candidates, who are trying to make a mountain out of the electronic transmission anthill. Let me reiterate this, during the commencement of the collation process at the ward level, the Ward Collation Officer requests for two things from the Presiding Officer of each polling unit:

*1. the form EC8A series used to record the votes by the political parties and*

*2. the BVAS device*

The reason is this: the collation officer at the Ward level being the first, needs to ensure that the number of accredited voters recorded by the Presiding Officer on the Form EC8A tallies with the number of the accredited voters the BVAS device recorded (which is the authentic figure that cannot be manipulated) in line with the provisions of Section 64(4a) of the Electoral Act. Secondly, he will then have to check if the tally of votes recorded for the political parties on the original form EC8A being submitted by the Presiding officer agrees with the copy of the same form EC8A the PO initially used the BVAS device to scan at the polling unit after the party agents present had signed.

The scanned form EC8A in the BVAS, once transmitted to the INEC server cannot be altered and remains in the BVAS device until the BVAS is reconfigured for use in another election. In other words, even if the transmitted copy of the result did not get immediately uploaded into the IREV portal, it has been TRANSMITTED and cannot be tampered with. The Presiding Officer either willingly or under duress can alter the results already entered on the original form EC8A (which is always one in number and customised to each Polling Unit hence the alterations seen on the form by those attempting to rig) before the result gets to the collation officer, but he or she cannot tamper with the information contained in the BVAS device so long as no new accreditation of voter(s) took place long after the end of voting. 

What this means is that a Collation Officer at the Ward Level does not need to log into the IREV portal to confirm the electronically transmitted form EC8A from a polling unit because the transmitted result for that polling unit is right there in the BVAS until such a BVAS is reconfigured! It is just a bit like sending a text message (scanned form EC8A)  to a number (IREV portal) that is switched off or whose phone has no network connection. You can easily still see the text sent (scanned form EC8A) by going through the sent message folder of the sender (BVAS) instead of having to rely on if the message has arrived the recipient's inbox (IREV). The moment you have sent a text message, you cannot edit it that particular text again even when it has not been delivered to the recipient. Delay in the delivery  of a sent message to a recipient does not mean the message was not sent. The BVAS works on similar principle.

So, no matter the angle you want to look at it from, INEC complied with the provisions of the Electoral Act 2022 and its own Guidelines in the collation of the 2023 Presidential Election Results from the ward, LGA, state to the national collation process. The petitioners will have to erase Clause 48(c) and 93 as well as turn Clause 48(a) upside down for them to prove any non-compliance with the Electoral Act on the part of INEC. Atiku Abubakar CANNOT successfully get the Tribunal to cancel the results of the Presidential election on account of an imaginary BVAS failure citing section 47(3) of the Electoral Act because the BVAS DID NOT FAIL! The BVAS devices deployed by INEC more than substantially performed the major function it was meant to perform - voter accreditation. Therefore, Section 47(3) does not arise.

The second non-compliance by INEC which Atiku alleged that should lead to the invalidation of the election of President Bola Ahmed Tinubu is that of the Constitutional geographical spread enshrined in Section 134(2) of the Constitution, specifically, the inability of President Bola Ahmed Tinubu to secure at least one quarter of the votes cast in the FCT before being declared as winner of the election. On this 25% in the FCT question, I have extensively dealt with it in part 3 of my earlier series dissecting the Peter Obi petition, but for the sake of emphasis I must state unequivocally that Atiku Abubakar and his legal team are simply wasting their energy flogging a dead horse.

The essence of the provision of the Constitution and the electoral act stipulating that a winner of a Presidential Election must score a quarter of the votes cast in at least two-thirds of the 36 States and the FCT in addition to scoring the majority of votes is simply to ensure that a President that emerges at any point in time must get the support of significant cross-section of the country to avoid undue domination by a section of the country. The essence of the provision will be defeated if the FCT voters are given the power to have the final say in the election. The average FCT voter is not more powerful than the voter in the 36 states. 

To further buttress the need for wide acceptability, the Constitution provided in Section 133 that even where there is only one candidate standing for election as president, such a candidate must secure a majority of YES votes over NO votes cast at the election and crucially, must also secure at least one quarter of the votes cast in at least two-thirds of the 36 states and the FCT. The AND between the 36 States and the FCT is there as a conjunction to join the FCT to the 36 States. It could have simply read, "37 states", but because the FCT is not structurally EXACTLY the same as the other 36 States, you cannot put them in the same house as the FCT hence the need for that distinction. It is wrong to therefore impute that the AND implies compulsorily getting 25% of the votes cast in the FCT.

The Constitution in Section 299, envisaged this kind of scenario and stated that the provisions of the Constitution shall apply to the FCT AS IF IT WERE ONE OF THE STATES OF THE FEDERATION. Therefore, FCT is just one of the possible 37 states a Presidential Candidate can secure 25% of the votes. Nothing more, nothing less. It is even more strange and ludicrous that Atiku Abubakar who is contending that President Bola Tinubu ought not to have been declared the winner by INEC on account of failing to secure 25% of the votes in the FCT is asking the Court in paragraph 150(d) of his petition to declare him as the winner of the election when he admitted that he equally failed to secure 25% of the votes cast in the FCT.

The final non-compliance alleged by the petitioners in their ground 1 is the issue of margin of lead. According to Atiku Abubakar, the margin of 1,810,206 votes between him and the winner, President Bola Ahmed Tinubu is less than the total number of PVCs collected in polling units where elections did not hold or were cancelled and therefore contends that the election should have been inconclusive. On this particular allegation, Atiku Abubakar needs to provide documentary proofs stating the exact polling units where elections did not hold or were cancelled and no rerun conducted in addition to providing the number of PVCs collected in such polling units. 

INEC Chief Returning Officer for the Presidential election is the INEC Chairman and part of what he has to cross-check before making a return is the incident report form EC40G(3), which tabulates all the places election did not hold or were disrupted and the number of PVCs collected in those affected areas. So far, there is no indication that the petitioners have their own comprehensive list of where elections did not hold or were cancelled that is different from what INEC compiled in their form EC40G series from the Ward collation to the national collation level. What they pleaded in paragraph 85 of their petition is just the Form EC8B series and a list of PVCs collected in the unnamed polling units they claimed elections did not hold. The written address of both the petitioners and the respondents will shed more light on this.

In the concluding part, I will delve into grounds two to four of the Atiku Abubakar petition, which though very laughable in its content and prayers is an upgrade on the most watery petition of his former protégé-turned nemesis.

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