By Oseloka Zikora
You would be correct to say that the BVAS is just a device while the IReV is a portal. But they will mean nothing if not contextually associated with their functions. For instance, the BVAS is designed to capture election data through the accreditation of voters and scanning of polling units’ election results while at the same time, uploading same on both the INEC backend Collation and Support Results Verification System (CSRVS) and the IReV portal at real-time. On the other hand and as stated earlier, the IReV is used only for the upload of election results for real-time viewing by the public. However, it also functions to aid the collation of the Polling Unit result entered on Form EC8(a) as scanned and captured on the BVAS.
So, the connection that makes both the BVAS and IReV seem like Siamese twins is that they primarily house the same data. In fact, the only data that can be found on the IReV is that which is captured by the BVAS. This is because the IReV is configured specifically to receive and arrange data stored on the BVAS. The BVAS is also configured to automatically share its data to the IReV portal and the INEC backend CSRVS.
Therefore, to separate the two in a way that suggests that you can only rely on the data on the BVAS while neglecting that which is uploaded on the IReV is sheer sophistry. The exception to the rule though is if a dispute should arise to differences in collated figures which could occur on either the BVAS or IReV. That was the case that happened at some point as was the case after the Osun Governorship election result was announced. I will return to that.
Now let’s examine what the laws say about the BVAS and the IReV in the electoral process. To do that, however, it is expedient to first put forward the legal foundation upon which INEC relies to make subsidiary legislation. That foundation is laid by the Constitution, and the Electoral Act 2022.
Section 15 (i) Part F of the Third Schedule of the Nigerian Constitution mandates INEC to “carry out such other functions as may be conferred upon it by an Act of the National Assembly.” Consequent to that provision, the Electoral Act 2022 in Section 148 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.” Section 60 (5) of the same Act, explicitly requires that presiding officers at polling units “shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission.”
It was based on the authority of sections 60(5) and 148 that INEC issued two documents to guide the conduct of subsequent elections that occur after the enactment of the 2022 Electoral Act. These are the Regulations and Guidelines for the Conduct of Elections, 2022, and the INEC Manual for Election Officials, 2023.
As I stated earlier, the interconnectedness between the BVAS and the IReV lies in the sameness of data that each houses. I will go further to prove from the regulations that the BVAS and IReV data serve to authenticate the integrity of the results of an election. Note that contrary to certain held opinions, these regulations and manuals enjoy the force of law accorded them by the Constitution and the Electoral Act to serve as subsidiary legislation.
Clause 38 (i) and (ii) of the Regulations and Guidelines specifically provides that: (i) “on completion of all the Polling Unit voting and results procedures, the Presiding Officer shall: Electronically transmit or transfer the result of the polling unit, directly to the collation system as prescribed by the commission; (ii) Use the BVAS to upload a scanned copy of the EC8A to the INEC result viewing portal (IReV) as prescribed by the commission.
Clause 48(a) on the other hand explicitly 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. Sub-clause (b) provides that “If a Collation or Returning Officer determines that a result from a lower level of collation is not correct, he/she shall use the result electronically transmitted or transferred directly from that lower level to collate and announce the result.” These provisions automatically make the electronic transmission of results to the CSRVS and IReV portal an integral part of the election collation system.
Therefore, from a combined reading of the above clause 38 (i) & (ii) together with the related provisions in clause 48 (a) & (b) of the Regulations and Guidelines, it would be safe to conclude that the duty to electronically transmit the result of the election directly from the polling unit to both Collation System and the IReV serves as a benchmark for an acceptable collation of the polling unit result at the ward and other higher collation levels. This means that before the Collation Officer does his work, s/he must check the integrity of the results submitted with BVAS scanned and uploaded Form EC8A or the other EC8s on either the IREV portal or the INEC back-end Collation system.
Clause 48 however provides in sub-clause (c) that where “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. For purposes of clarity, clause 93 states that “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.
Analyzing all these provisions holistically will presuppose that the law in a bid to promote integrity and transparency in the electoral system places a higher premium on the digitally captured Forms EC8s scanned on the BVAS and transmitted electronically to the IREV portal and the Collation System than it does the physical result forms submitted by the polling unit or lower collation officers. This is because the provisions require the Collation Officer to subject that physical copy to an integrity test that can only be validated by the digital BVAS and IReV / Collation System data. It is where the physical copy and the BVAS/IREV copy do not exist, that the Collation Officer uses the duplicate copies issued either to the police or the party agents in that pecked order of importance.
From the proceedings of the Presidential Election Petitions Court, I understand that both PDP and LP submitted to the Court as evidence of rigging, INEC-certified copies of Forms EC8 (a) downloaded from the IREV portal, and Forms EC8 (b), (c), (d), and (e) that were already warehoused digitally on the INEC Collation Support system. You will recall that INEC had reconfigured the BVAS devices immediately after the presidential election in order to use them for the later governorship election.
However, the PEPC Justices in their wisdom pilloried those efforts preferring instead that the petitioners should have called their polling unit agents under oral evidence to present their own signed copies of the Polling Unit results. There are 176,794 polling units in the county. This means that to do what the Hon. Justices desired would involve the presentation of at least 50,000 agents by each petitioner. Logistically, it would be near impossible to achieve that even if the court had a whole year to adjudicate the cases.
Moreover, one may ask why anyone would want to embark on such a wild goose chase when the electoral provisions already placed a higher value for integrity validation of election results on the electronic formats captured by the BVAS and transmitted to both the IReV portal and the CSRVS.
Put mildly, the demand by the Justices flies in the face of section 137 of the Electoral Act 2022 which provides thus: “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.”
Now on the matter of which between the BVAS data and IReV data should be the primary evidence to be relied on in election petitions. I have argued that both data are really the same because the IReV can only be uploaded with the BVAS device. However, I concede that in the minority judgement of the Tribunal case between Oyetola vs. Adeleke which was upheld by both the Appeal and the Supreme Courts as the rightful position of law, the BVAS data was adjudged the primary data.
However, that case should be put in context to understand why in the first instance there was a variance between the two data sets. In the case in question, the difference between the two data, which should in all intent and purpose could have been the same, was attributed to a lag in time during the full upload of all the BVAS results for that election onto the IReV portal. Oyetola, immediately after the election results were announced, had approached INEC and obtained from them certified copies of results posted on the IReV. At that point, the total sum of result figures thus far uploaded showed that he, Oyetola was in the lead over Adeleke. However, INEC claimed that at the time the certified documents were collected, not all the BVAS results for the said election had been uploaded due to network issues. It however stated that at the point of collation and announcement of results, the BVAS results were used to cross-check the authenticity of declared results at the ward/local government collation levels showing that Adeleke won. Moreover, INEC argued that once the network improved in the concerned areas, the scanned results were automatically uploaded affirming the announced results. That nonetheless constituted a dispute of the election result necessitating the Tribunal to ask INEC to bring the disputed areas BVAS devices for forensic auditing. The result of that forensic audit confirmed that Adeleke won which the Tribunal minority judgement relied on for its verdict. The majority judgement however differed insisting that Oyetola’s IReV obtained certified results were the authentic evidence. That was the contention that both the Appeal Court and the apex court resolved in favour of BVAS as the primary data.
However, the question of any difference existing between the BVAS data and that contained on the IREV portal or INEC CSRVS did not arise in the presidential election matter. Neither INEC nor the other respondents pleaded any such contention that what was submitted by LP or PDP was at variance with what was available in their BVAS. In fact, INEC claimed that the results were not uploaded in real-time by the BVAS to the IReV due to a glitch on their portal. Surprisingly the said glitch only affected the presidential platform in the portal while magically sparing the other two platforms displaying the real-time results for the Senate and House of Representatives elections held the same day.
That they admitted to the glitch means that requirements of clause 48(a) and (b) in the election regulations and guidelines were observed more in the breach than in substance. My submission is that the certified data from the INEC IReV showing differences with the finally declared result is substantial enough to warrant outright cancellation of the February 25th election and a rerun ordered.
I doubt that the PEPC sought to undermine the principles of integrity and transparency which the aforementioned public policies seek to entrench in the electoral process. Unfortunately, this is what they’re considered opinion jettisoning data electronically transmitted and certified as true by INEC would seem to suggest.
It is pertinent to note that such a trampling of the people’s vote on the altar of legal technicalities and procedural considerations could cause democracy to asphyxiate, while the masses end up crying that they can’t breathe. This sometimes results in the death of democracy as we have witnessed in some countries. That is why the Supreme Court must be bold enough to do the necessary to save the face of the Judiciary and restore the confidence of the masses that indeed the courts still promote integrity, transparency, and justice.
*Zikora, a public affairs analyst writes from Abuja
