The
ambition of the candidate of the All Progressives Congress (APC) in becoming
the Governor of Delta State might end up not seeing the light of day. As election
tribunals’ starts rounding up, the cases so far decided tend to point towards
the fact that Otega Emerho’s petition is an exercise in futility and a wild
goose chase.
The
ground that APC heavily relies upon in challenging the election of Senator
Ifeanyi Okowa is the default of the use of the card reader machine. But the use
or otherwise of the card reader machine due to its recent emergence,
specifically in the 2015 general elections, was not contemplated howsoever by
the non-compliance provisions in section 138(1) of the Electoral Act and
specifically by Section 138(1) and cannot constitute a basis for
nullifying an election.
According
to legal opinions, the issue was settled recently by the Court of Appeal in the
case of All Progressives Congress vs Agbaje and 4 others. It quotes Justice
Ogbuinya JCA’s lead judgment: “The evolution of the concept of smart card
reader is a familiar one. It came to being during the last general election
held in March and April, 2015 in Nigeria. “On this score, it is a nascent
procedure injected into our infant and fledgling electoral system to ensure
credible and transparent election. Specifically, it is aimed to concretize our
fragile process of accreditation – the keystone of any suffrage. The concept,
owing to its recent invention by INEC, a non-legislative body, traces its
paternity to the manual for Election Officials, 2015: chapter 2, pages 35–42.
Put the other way round, the extant Electoral Act, 2010, as amended, which
predates the concept, is not its parent or progenitor.
“Since
it is not the progeny of the Electoral Act, a petition fronting it as a ground
to challenge any election does not have its blessing, nay section 138(1) of it.
Put simply, a petitioner cannot project the non-presence or improper use of
smart card reader as a ground for questioning an election it does not qualify
as one,” the Appeal Court Judgment held.
Section
49 of the Electoral Act is straightforward on the statutory accreditation
process by stipulating thus: 49. – (1) “Any person intending to vote with his
voter’s card shall present himself to a Presiding Officer at the polling unit
in the constituency in which his name is registered with his voters’ card. 49.
– (2) “The Presiding Officer shall, on being satisfied that the name of the
person is on the Register of Voters, issue him a ballot paper and indicate on
the Register that the person has voted.”
In
view of this provision of the Electoral Act, it is the contention of legal experts
“that any ‘instruction’ that purports to invalidate these provisions of the
Electoral Act, as purported or any other instruction whatsoever, is null, void
and of no effect whatsoever in terms of and pursuant to the afore-reproduced
Section 138 (2) of the Electoral Act and must be discountenanced.
Without
prejudice to APC position on the nullity of the card reader, it is good to
point out contradictions and inconsistencies in their pleadings and evidence.
For instance, according to their petition they claimed that “Card Readers were
not used” at all and yet they expect the Judges to rely on the Card Reader data, which they tendered and
which clearly confirms that there were some successful accreditation for the election
using the Card Reader. “Those two positions are clearly irreconcilable,”
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