AFR Business

Mr Mike Igini, a lawyer and former Resident Electoral Commissioner, REC, in Akwa Ibom State, in this interview, speaks on the Osun governorship Tribunal judgment and the integrity of the Bimodal Voters Accreditation, BVAS, machines among others insisting that BVAs will guarantee credible balloting

What do you make of the claim of over-voting by the Osun Tribunal despite the use of BVAS and its integrity?

The tribunal did not make any adverse or negative finding against the BVAS per se but on the propriety of three reports of accreditation data and the resultant attempts by people to discredit the BVAS, given that the BVAS will be used in the general elections and many Nigerians are worried by what they read on social media that are completely false about BVAS.

As they gang up to tell lies about BVAS, we will say the truth about it. It is the people who are afraid of BVAS and have been opposed to its use in the forthcoming election that are making uninformed comments to discredit the BVAS. This gross misunderstanding is as a result of the final outcome of the court that returned victory to another person other than that initially declared, which seems to create doubts and thoughts that BVAS has issues of fidelity and credibility.

However, this notion is wholly and totally incorrect and not true. The integrity of the BVAS is intact, it has no problem.

I urge all Nigerians to disregard and reject all such insinuations about this device that is the new sheriff in our electoral process.

In effect, you are saying that the judgment of the tribunal validated the usefulness of BVAS?

The integrity of the BVAS has not been impeached, the tribunal affirmed our longstanding efforts to enthrone the principle of one-person-one vote and the value of electoral accountability in the system through the use of the BVAS that allows for meaningful auditing of every vote that must be counted and taken into account to determine the winner of any election now at the polling units and no longer at results collation centers; either at Wards, LGAs or other levels of collation. The use of BVAS is a matter of law and procedure as mandated by the 2022 Act and there is no going back on it. There is nothing, absolutely nothing, to be worried about the device. In fact, the tribunal itself relied on one of the reports of the BVAS, which is the ultimate primary source of ascertaining data of accredited voters to make its final declaration and that reinforced the integrity and credibility of the BVAS.

On doubts being created by the Osun tribunal over discrepancies of three reports of accreditation and why should INEC give three reports

Let me use a sample analogy of what happened in a constituency in Akwa lbom during the 2019 elections, as I did on Channels Television to answer your question. The current advanced and more sophisticated and robust BVAS accreditation and result upload device technology is an offshoot of the smart card reader. Every presiding officer at the end of the poll will sort out the ballot, count and enter total number of votes scored and accredited on the result sheet called Form EC8A, signed by him and countersigned by party agents, who are entitled to duplicates of same result. One very critical duty that the presiding officer must perform is the upload of data from BVAS of the number of accredited voters to the INEC Server.

Meanwhile, the BVAS as designed, whenever it is idle, it will upload accredited data on its own particularly during the period the presiding officer is busy sorting and counting ballot papers. Thus, if for example, at the end of the poll there was 150 total accredited numbers but while the BVAS was idle only a 100 of that with their unique voters identification number (VIN) had been uploaded, the presiding officer must ensure that the remaining 50 data is pushed (uploaded) into the server. Where the presiding officer negligently or failed to upload the entire accredited data (150) except the 100 data uploaded by the BVAS when in idle mode, a certified true copy of the accreditation data should not be given at this point until the remaining data of the yet to be uploaded accredited voters (50) are uploaded.

However, where any of the candidates that participated in the election that applied insist for a certified true copy of the report of what has been uploaded so far from the Server back end in order to file or maintain his petition, any such certified true copy obviously will reflect inchoate accreditation data uploaded while the BVAS was idling, that is, the 100 number instead of 150 which is the final actual total accredited voters on the form EC8A. This gives an erroneous notion of over-voting, which is not true. That is why such preliminary data report requested for by any candidate ought to be or must be marked by the commission as an “interim report” pending final aggregation, addition or harmonization of outstanding data.

This is necessary because if the physical audit of the BVAS is carried out and the 50 remaining number of accredited data is added, it will be 150 accredited voters which tallies with the form EC8A. This is not over-voting according to Section 51 of the 2022 Act that defines over-voting as a situation where the total number of votes cast exceeds total number of accredited voters.

All these controversies would have been avoided if the initial incomplete report from the server which is a secondary source was marked “interim report.”

The BVAS is the ultimate primary source of determining any claim of over-voting.

Except the BVAS is destroyed completely, there is nothing anyone can do to manipulate it because it is designed in a way that evidence trail of every effort to tamper with the memory will show that it was tampered with in an effort to circumvent it. It is not easily compromised unlike ordinary hard copy of voters register that anyone can just tick or mark as people who were accredited.

It is designed to put the voters at the center of our electoral democracy and the candidates at the periphery of the process on Election Day. Look, many politicians will be retired by this system as many will suffer the dinosaur’s experience. Electoral victory and salvation now lies in the hands of the people through their ballots on Election Day. This is the reality of the usefulness of the BVAS that has returned power to the people to determine, who governs them.

In several interviews you expressed worries over your constituency, the judiciary, that it should be fearless and courageous. Do you still have concern about its performance?

Yes, and frankly I’m not only worried I’m indeed very disturbed over the performance of my constituency when it comes to high profile political matters and the kind of judgments that come from our courts. This is historical and why should that be the case? Let me be clear here, if the institution of representative democracy will have a hopeful future in Nigeria, it will depend on the role of a fearless and courageous judiciary that will do substantial electoral justice and not technical justice according to the letters of the law devoid of the spirit of the law.

Giving how fearless and courageous the Nigerian judiciary performed under the military when we were under the rule of force, I’m sad and pained that in a civilian era when we are supposed to be under the rule of law, we appear now to be under the rule of men. The political interest of the elites that have marginalized, exploited, blackmailed and humiliated the judiciary the most are the ones whose interest the judiciary now serves more. The rule of law is preferable to the rule of men no matter how magnanimous. In our own clime, many elites (not all) are so bad that their thoughts and stomachs are nothing but museum of horror.

Are you saying that under this democracy, the judiciary has not demonstrated enough courage in handling high profile political matters?

Precisely that is what I’m saying. My beloved constituency, the judiciary, was more audacious and professional in its calling during the military regime despite the humiliation that it suffered. Justice Ademola, JCA, as he was then, declared during that terrible period of terror that, the judiciary will not “blow muted trumpets” on matters of the rule of law and justice. Are we not blowing muted trumpets now in a civilian rule? How did we get to a point in our electoral democracy that people who didn’t participate in a party primary will be declared by courts as candidates of a party and actual participants and winners denied? Is that a mark of progress or retrogression? What will be the perception of ordinary members of such a party about our judiciary? The judiciary is like a video assisted referee they call VAR, it’s the last line of defence in any electoral democracy, particularly in our kind of system where politicians don’t want to abide by rules.

The judiciary must not bow to the intimidation of political elites or collapse under the suffocating pressure and influence of corrupt politicians, who do not subscribe to free, fair and credible election. The judiciary is the last bastion of ordered compliance with electoral governance, when it fails you invite anarchy and social dystopia. Hence, a judiciary that shows signs of weakness to deal with the activities of extra-constitutional actors does not augur well for the sustenance of democracy.

With the scenario that you have captured do you still think that the judiciary is still the last hope of the common man?

The painful and sad irony of the situation of the common man is that he has no true access to the service of the judiciary for various reasons ranging from cost of seeking justice, poverty, and problem of long adjournments and so on. The common man has resorted to God as his last hope like those who have been denied their legitimate victory as candidates who have left everything to God.

As things are at the moment, it would appear that it is a person of suspect intellect that will parrot the shibboleth that the judiciary is the last hope of the common man if there is no change. Is the ideology of our judiciary that of protection of regimes, high profile citizens like politicians or just to interpret the law as it is and have no business seeing that their judgments meet public expectations ?

What can we do to bring back the era of fearless and courageous judiciary giving the condition of judges in terms of welfare?

That is at the heart of the problem why everything appears to be under alarm and nothing under control. We must tell ourselves the inconvenient truth of the fact that our advocacy and clamour for independent, fearless and courageous judiciary will be meaningless and hopeless if we do not urgently take steps to improve and guarantee the material condition of judges. We know the unacceptable conditions they are constrained to do their job; we hear and read of shameful reports across the country of retired judges, who are not paid their entitlement and are suffering. That is why judges are vulnerable and politicians think they can treat them the way they like which is unfortunate.

Furthermore and perhaps far very important, is the need to ensure that appointment of judges and promotion should be strictly on merit and serious background check of the integrity of such individuals. That is why the Austrian Jurist, Eugene Erhlich, declared that “there is no guarantee of justice except the integrity of the judge.” We must consciously ensure and insist on having the best and most qualified to be appointed as judges.

The Court of Appeal, Abuja, has set aside the judgment of a lower court barring the Economic and Financial Crimes Commission, EFCC, from initiating either civil or criminal proceedings against former Accountant General of the Federation, AGF, Jonah Otunla.

A three-member panel of the Court of Appeal, in a judgment, marked: CA/A/657/2021, on Monday held that Mr Otunla failed to prove that there was actually a non-prosecution agreement between him and the EFCC.

The court upheld the arguments of EFCC’s lawyer, Sylvanus Tahir, SAN, and resolved the four issues, identified for determination, in favour of the Commission. Justice Danlami Senchi, who read the judgment, noted that Mr Otunla did not provide any written commitment, except his words and that of his lawyer, that such an agreement existed.

Justice Senchi held that Mr Otunla could not halt his prosecution by merely claiming that there was an agreement, which existence he failed to establish with any credible evidence. “In the instant case, there is no evidence to support the pleading of the respondent (Otunla) that he will not be prosecuted; that criminal or civil proceedings should not be instituted or initiated against him. There is no plea bargain or any documentary evidence relating to the President Panel for the Recovery of Funds. On the whole, the appeal is meritorious and it is allowed. The judgment of the Federal High Court, in suit number: FHC/ABJ/CS/2321/2021 delivered on the 16th day of July 2021 delivered by honourable Justice I. E. Ekwo is hereby set aside,” he said.

Other members of the panel – Justices Stephen Adah and Elfreda Williams-Daudu – agreed with the lead judgment.

The EFCC investigated Mr Otunla in relation to two cases: The alleged diversion of about N24billion meant for disengaged staff of the defunct Power Holding Company of Nigeria, PHCN, and the N2billion allegedly received from the office of the National Security Adviser, ONSA.

Justice Inyang Ekwo of the Federal High Court in Abuja had, in the July 16, 2021 judgment, upheld Mr Otunla’s claim of an existing verbal agreement between him and the then acting chairman of the EFCC, Ibrahim Magu, that he would not be prosecuted if he make refund to the Federal Government.

Justice Ekwo, in the 2021 judgment on the suit, marked: FHC/ABJ/CS/2321/2021 filed by Mr Otunla, held among others, that, in view of the assurance given to him by Mr Magu, which informed his refund of the money, he could no longer be prosecuted for his actions while in office between 2011 and 2015.

Mr Otunla had, in an affidavit, claimed that Magu promised him that he would not be prosecuted should he return funds traced to him and companies linked to him and his associates.

He stated that sometime in 2015, he was invited by a team of EFCC’s investigators, probing alleged diversion of funds from the office of the National Security Adviser , ONSA, and the Power Holding Company of Nigeria , PHCN, pension funds.

Mr Otunla said he later met with Mr Magu, in the course of the investigation, when the then acting EFCC Chair told him in person to “refund the monies linked to your companies and nobody will prosecute you.”

He said, based on Mr Magu’s promise, he had a reconciliatory meeting with the team of investigators, where he immediately undertook to make available some funds as refunds.

In line with the agreement, Mr Otunla said one of the companies linked to him – Stellar Vera Development Ltd – refunded N750million, another company – Damaris Mode Coolture Ltd – refunded N550million, while the two firms later made additional joint refund of N2,150,000,000.00 (Two billion, One Hundred and Fifty Million Naira only).

He added that, at a point, he raised several manager’s cheques for N10million in favour of the EFCC, which he handed to the Economic Governance Section.

Mr Otunla said, in all, he made a refund of N6,392,000,000.00 (Six Billion, Three Hundred and Ninety Two Million Naira only) to the Federation Account through the EFCC.