February 6, 2023

Osun poll: How BVAS exposed alleged rigging machine

By Ismail Omipidan

WHEN in August 2022, I announced to the whole world that in Osun, my principal, Adegboyega Oyetola, did not lose the July 16 governorship election, but only lost the vote count, some Nigerians, especially sympathisers of the Peoples Democratic Party, PDP, were furious. They called me names. But they could not marshal any reasonable argument to disprove my position. So, the  judgement of the Osun State Election Petition Tribunal is a vindication of my position prior to the 2018 governorship election that the majority of Osun citizens, who are reasonable, knowledgeable, and who apart from ‘dancecraft’, has nothing to offer the state. His administration of Osun in the last 60 days has further exposed him as a man lacking in character, content, and capacity.

Similarly, the outcome of the tribunal is a vindication of my August 2022 postulation that we only lost the vote count and not the election. Contrary to the claims of the governor and his cohorts, three of the judges agreed that he forged his certificate, while two concurred that there was indeed overvoting in the July 16 governorship election. And in accordance with the Electoral Act, the invalid votes were separated from the valid ones, and Oyetola was declared the validly-elected governor of Osun State. Therefore, the issue of “Member 1” and “Member 2” being propounded by Senator Ademola Adeleke, Kolapo Alimi, and the rest only exists in their imagination. It is a pity that the governor does not know, and those we thought should know ended up misleading the poor man.

In the lead judgement, which was over 90 pages, “we” featured prominently to indicate that the position reached was reached by two or more persons. Similarly, in the dissenting judgement, which was just eight pages, “I” featured prominently to indicate he was alone in that decision. How Senator Ademola Adeleke’s men were able to confuse him about the fact that an eight-page judgement can be used to overturn over 90 pages of sound and scholarly judgement, which are well grounded in law and facts, remains a mystery to me.  

How the tribunal arrived at its conclusion: Before delving into how the tribunal arrived at its conclusion, I wish to deal with the issue of alleged forgery as established by the Tribunal. Recall that Oyetola and APC approached the Tribunal on two fundamental grounds: one, that at the time Senator Adeleke was contesting, he was not qualified. Two, that he did not score the lawful valid votes. According to the Tribunal led by Justice Tertsea Kume, APC and Oyetola were able to prove the alleged forgery case against Governor Adeleke as EC9, which is the affidavit in support of personal particulars about the governor, told “a lie about itself”. The three justices of the Tribunal went further to hold that “clear reading of the above reproduced section of the Criminal Code and exhibit EC9 reproduced above reveals that EC9 tells a lie about itself. See ACN vs. Lamido (2011), LPELR-91741 (CA) 1 at 79–80 paras C- A, and 80 81 paras F- A. 

“In that regard, the forgery of the said documents presented by the 2nd respondent (Ademola Adeleke) to the 1st respondent (INEC) has been proved. “The same consequence applies to File D in so far as the contents therein relate to ‘Osun State’ which was not in existence before 1991. See PDP v. Degi-Eremenyo (2021) 9 NWLR (Pt. 1781) 274 at 292 paras A-C cited by learned counsel for the Petitioners.” The Tribunal Justices went further to hold as follows: “The question, however, is whether, having found forgery in parts of exhibit EC9 and file D, the 2nd Respondent (Ademola Adeleke) is exonerated by exhibits 2R.RW6 and 2R.RW9. We think he is. It would have been otherwise if no other qualifying certificate of attendance at an institution had been presented to the first respondent for the election.” As a layman, the mere fact that the Tribunal only says they “think,” shows that this is another potent pendulum that could swing against the governor at the appellate court. Reason being that, the additional qualifications which were the basis of what I want to refer to as his temporary respite in the issue of qualification, was acquired using the O’Level that has been proven to be allegedly forged. Therefore, if we go by the popular axiom, you cannot build something on nothing and expect it to stand. It goes without saying that the governor is yet to be let off the hook as far as his qualification to stand for the election is concerned. He can be disqualified for submitting an alleged forged document as contained in his file with INEC.

But let’s go back to the issue of overvoting. The Electoral Act is clear. To make a return as to the announcement of the results of the election, the presiding officer must take into account what the BVAS transmitted, which is on the back end. In this instance, Senator Adeleke was declared winner of that election by the INEC on July 17 based on the figures the BVAS transmitted. It was these figures the APC and Oyetola applied for and got from the INEC. After filing their petitions, the PDP rushed to INEC and obtained what was later referred to as a “synchronized” BVAS report. Assuming without conceding that there should be a synchronised BVAS report, the next question to ask, which I raised in September, is: On what basis then was Adeleke declared the winner on July 17?  By their stretch of argument, it means Adeleke was declared the winner before “synchronization”. Since Adeleke was never declared the winner by opening the BVAS machine, how on earth will you now sway the tribunal to accept that? At any rate, even in that one too, the expert hired by Adeleke, Samuel Oduntan, to analyse the BVAS machine also admitted before the court that there was overvoting. The only difference is that he said it was discovered in only six polling units. But during the cross-examination, APC and Oyetola counsel were able to prove to him that apart from the six he claimed over-voting occurred, there were others. “Under the supervision of the Independent National Electoral Commission, INEC, I conducted the forensic analysis of BVAS machines. I then analyzed the result with the Form EC8A series. My report didn’t determine who won or lost. I only gave the figures. I observed overvoting in six polling units. I was paid for the job. But it does not affect the figures and facts in my report,” he said.

Under cross-examination by petitioner’s counsel, Akin Olujinmi, SAN, Odutan, while being confronted with his witness statement and the BVAS report (Exhibit RBVR) on the accreditation figure in Ward 4, unit 7, said: “In my witness statement, page 7, serial number 138, the accreditation figure as extracted on the BVAS machine is 388, but on exhibit RBVR, it is 313.” But because it is difficult to cover up lies, even in the synchronised BVAS report presented before the Tribunal by INEC, the APC and Oyetola legal team were able to prove over-voting in over 100 polling units across the 10 local government areas, or LGAs, that they were challenging. What is more, INEC, the beneficiary (Adeleke), and the PDP, which sponsored Adeleke, could not even agree on the BVAS reports they presented before the Tribunal. This was what led Adeleke’s counsel to disown even the synchronized BVAS report INEC presented to the Tribunal.

Again, INEC’s witness, who testified before the Tribunal, did not disown the BVAS report given to Oyetola and APC, and she admitted under cross-examination that there was indeed overvoting in that election.