Justice Alaba Omolaye-Ajileye (Rtd)

I am shocked to see different video clips that have gone viral, the level of primitivity displayed in this election; that people still went about snatching ballot boxes!!! The introduction of BVA technology was to discourage this type of thuggery. This is because the authentic result of a polling unit will ultimately be determined by the number of voters accredited by the BVA machine of that polling unit. If you steal a ballot box and fill it with ballot papers containing multiple thumbprints of fake voters, how will you get the fake voters accredited on the polling unit’s BVA?

In Paragraph 23 of the Public Lecture marking my retirement from judicial service, organised by the Rule of Law Development Foundation, I explained the fact that there is now a new definition of
over-voting which is a departure from the understanding of the concept under the repealed Electoral Act.
Section 51 (2) of the Electoral Act, 2022 stipulates clearly that, “[w]here the number of votes cast at an election in any polling unit exceeds the number of accredited voters* in that unit, the Presiding shall cancel the result of the election in that polling unit.”

This is what I said in my Public Lecture:

23. Revision of the Definition of Over-voting

The BVA has been accorded a place of pre-eminence in determining over-voting. There is now a redefinition of the concept of over-voting. Lawyers and Judges, especially those that will be engaged in deciding election petitions in the forthcoming elections must come to terms with this reality. In the old dispensation, the voter’s register constituted the parameter for the determination of over-voting. Under the repealed Electoral Act, it was when the number of votes cast at an election in any polling unit exceeded the number of registered voters in that polling unit, that the Presiding officer was required to cancel the result of the election in that polling unit. Under the new Act, where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit. “Number of accredited voters” refers to the number of intending voters accredited to vote in an election on election day. Based on the provisions of the new Act, ‘overvoting’ would mean where votes cast at a polling unit exceed the number of accredited voters and not the number of registered voters as provided for in the old Act. Provisions of Section 60(4) and (5) are germane here:

60. (4) A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the.
(a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act; (b) the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act.

60. (5) Subject to subsection (1), a collation officer or returning officer shall use the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act, and the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act to collate and announce the result of an election if a collated result at his or a lower level of collation is not correct.

By far the greatest issue is how INEC will ensure that information transmitted from the polling units to the collation centre is secured. How is the truth in electronically stored information (ESI) to be established? It is well known that the virtual world is a lawless arena where all forms of crimes are committed by cybercriminals that roam around it.

Now, one of the three grounds upon which an election may be questioned is, ‘That the Respondent was not duly elected by majority of lawful votes cast at the election.’

Votes cast above the number of accredited voters clearly fall within the category of “unlawful votes”, under Section 51(2), as the particulars of such voters would not have been verified, confirmed, or authenticated as required under Section 47(2) of the Electoral Act.

While not attempting to instigate electoral litigation, I dare say that the challenge of the authenticity of the results transmitted by BVAs (which, in digital language, will duly pass as ESI), may likely dominate the election petitions that may be the aftermath of the elections. In this regard, lawyers and other litigants will do well to get familiar with the process of e-Discovery in order to be able to retrieve the electronically-transmitted results.