Highlights of Atiku Abubakar’s, Obi’s petitions as Tinubu, APC, INEC open defence

After three weeks of legal fireworks sparked by the move by Atiku Abubakar and Peter Obi to invalidate the outcome of the 23 February election at the Presidential Election Petition Court in Abuja, President Bola Tinubu and his party, the All Progressive Congress (APC), are set to open their defence on Monday.

Nigeria’s electoral commission, INEC, also a respondent in the cases pending at the court, will commence its defence of the outcome of the election before the five-member panel of the court headed by Haruna Tsammani on Monday.

Mr Tinubu of the APC emerged as Nigeria’s 16th leader in a fiercely contested election on 25 February.

He defeated Atiku of the Peoples Democratic Party (PDP), the Labour Party’s Mr Obi and 15 other contenders in the disputed race.

Five petitions were filed at the court to challenge the election outcome in the wake of the announcement of the results. But the number of petitions dropped to three after two were withdrawn by those who filed them.

So far, Atiku, Mr Obi and the Allied Democratic Party (APM) have closed their cases by calling witnesses and tendering documents to support their allegations of widespread irregularities and manipulation of results during the poll.

Specifically, the petitioners accused INEC of rigging the entire process in favour of Mr Tinubu and his APC party.

Proving electoral fraud in Nigeria is a herculean task, owing to the country’s vast electoral field, with 176,974 polling units as of the recent general election.

However, this year’s exercise was distinct owing to the level to which technology was deployed in the conduct of the election. Yet, the final collation and announcement of the presidential election results were delayed for almost a week.

The poll was held on 25 February across many states of the federation, but the exercise was rescheduled in other areas due to violence and logistical issues, leading to INEC’s eventual declaration of Mr Tinubu winner of the poll on 1 March.

Atiku’s outing in court

With a legal team comprising dozens of lawyers, including a battery of Senior Advocates of Nigeria (SANs), Atiku called his first witness on 30 May, a day after Mr Tinubu was sworn in as president at Eagle’s Square in Abuja.

Atiku’s legal team, headed by Chris Uche, a SAN, tendered tons of electoral documents numbering 118 exhibits before the court.

The documents were certified true copies of the results of the presidential election from the 36 states of the country and the Federal Capital Territory (FCT).

To substantiate his claims, Atiku’s team also presented records of the number of permanent voter cards (PVC) used for the election across the 36 and printouts of data obtained from the Bimodal Voters Accreditation System (BVAS) machines- a technology used in the conduct of the election.

The BVAS machines and the INEC Results Viewing (IReV) portal were innovations of the electoral commission to boost Nigeria’s electoral integrity and credibility.

But INEC’s failure to upload the photographic copies of polling station results forms one of the major grounds of the petition.

Key witnesses

In aid of his case, Atiku called subpoenaed, star and expert witnesses totalling 27 at the close of his case on 23 June.

As the subpoenaed witnesses, mostly INEC ad-hoc presiding officers, took the witness box, they alleged that the electoral umpire failed to electronically transmit polling units results of the presidential election in real-time to the INEC Results Viewing (IReV) portal on 25 February when the poll was held.

Two polling unit presiding officers – Friday Egwuma and Grace Timothy – were engaged by INEC to conduct the disputed poll.

But they were subpoenaed by the five-member court based on the request of Atikum

They recounted their experiences at different polling stations where they presided over the election.

According to them, the photographic copies of the results of the National Assembly election, held simultaneously with the presidential poll, were successfully uploaded to the INEC IReV portal.

But they said the attempts to do the same for the presidential election as stipulated in the electoral commission’s guidelines for the conduct of the polls failed.

Another contentious issue before the court is the integrity of data stored on Bimodal Voters Accreditation System (BIVAS) machines from the presidential election.

Hitler Nwala, a digital forensic analyst subpoenaed to testify as Atiku’s expert witness, said he inspected and analysed 110 BVAS machines used for the Federal Capital Territory (FCT) election.

Mr Nwala said he found out that INEC deleted results on all the BVAS machines he inspected but didn’t know when the deletion was done.

Equally critical at the defence stage of the suits will be Mr Tinubu’s legal team’s capacity to counter allegations of forgery of academic records and impersonation against the president.

At the tail end of the presentation of his case, Atiku called Mike Enahoro-Ebah, a star witness, who narrated how he obtained several documents detailing Mr Tinubu’s biodata.

Mr Enahoro-Ebah, who identified himself as a public interest litigator, told the court that his lawyer in the US obtained Mr Tinubu’s academic records from Chicago State University.

Mr Enahoro-Ebah alleged that there were discrepancies in Mr Tinubu’s academic records both at the Chicago State University and the South West College in the US.

He tendered Mr Tinubu’s transcripts from the South West College in the US. He added that the transcripts, issued in 1977, identified Mr Tinubu as “female.”

The court admitted the documents as exhibits.

In addition, the court admitted a “notarised judgement of criminal forfeiture” of Mr Tinubu’s assets over alleged drug trafficking in the US.

Another star witness in Atiku’s case, Dino Melaye, who is a former senator and PDP candidate in the forthcoming 11 November Kogi State governorship election.

He alleged wrongful computation of the presidential election results while testifying before the court.

Obi’s case

At the court, Mr Obi called 13 out of the 50 witnesses he had proposed to call to prove his case against Mr Tinubu.

In the suit, Mr Obi’s legal team led by Livy Uzoukwu, a SAN, tendered several electoral documents comprising BVAS reports, IRev reports, video exhibits, polling stations results, Vice President Kashim Shettima’s nomination form, a copy of $460,000 forfeiture judgment, reports of polling stations where elections did not hold and record of PVCs collected.

Witnesses

Contrary to INEC’s claim, Obi’s expert witness, Mpeh Ogar, told the court that a report of the health status of Amazon Web Services, which hosts the INEC IReV portal, showed no technical glitches on 25 February 2023.

Ms Ogar, a cloud engineer and architect at Amazon Web Services Incorporated, said the INEC’s IReV portal did not experience any glitches to justify the failure to upload real-time the polling unit results of the 25 February presidential election.

The commission had, in a statement issued a day after the polls by its Commissioner for Voter Education, Festus Okoye, blamed unexpected technical glitches for the commission’s inability to ensure real-time uploading of results to the IReV portal as provided in the guidelines for the election

Mr Obi and his party had alleged that INEC’s inability to upload the photographic copies of result sheets from polling stations to the IReV portal in real-time during the election was one of the breaches that marred the polls.

Another witness, Lawrence Nwakaeti, a lawyer from Anambra State, told the court that Mr Tinubu was fined in the US for allegedly trafficking in narcotics.

Mr Obi’s lawyer, Jibrin Okutepa, a SAN, tendered some court documents purporting to be the US court’s decision awarding $460,000 fine against Mr Tinubu for illicit drugs trafficking imposed by the United States District Court, Northern District of Illinois, Eastern Division.

A thread that runs through the narratives of many of the witnesses that testified for Atiku and Mr Obi was the failure of INEC to promptly upload photographic copies of polling units’ presidential election results.

APM’s case

Meanwhile, the Allied Peoples Movement (APM) concluded its case after calling one witness to prove its petition against INEC, Mr Tinubu and the APC.

Its case involved an alleged double nomination against Mr Shettima as Mr Tinubu’s running mate in the presidential election.

Expectations

As proceedings are due to continue on Monday, the respondents – Mr Tinubu and the APC have a week to prove their case, while INEC has five days to defend its case.

Based on the report of the prehearing sessions, Mr Tinubu’s lead lawyer, Wole Olanipekun, a SAN, had said he was prepared to defend his client’s victory with a total of 39 witnesses in all the pending cases.

The APC, represented by Lateef Fagbemi, a SAN, disclosed that the party would present 25 witnesses to defend its victory.

While on its part, INEC informed the court that it would call two witnesses.

Background

Atiku came second with 6,984,520 votes. During the presidential election, he led in 12 states.

Atiku won in Katsina, Kebbi, Sokoto, Kaduna, Gombe, Yobe, Bauchi, Adamawa and Taraba states. He also won in Osun, Akwa Ibom and Bayelsa states.

Mr Obi came third in the election with 6,101,533 votes, winning 11 states and the FCT, Abuja.

Mr Obi won in Edo, Cross River, Delta, Lagos, Plateau, Imo, Ebonyi, Nasarawa, Anambra, Abia and Enugu States, and the FCT.

Rabiu Kwankwaso of the New Nigeria Peoples Party (NNPP) came fourth with 1,496,687 votes. He won in only Kano state.

But Mr Tinubu won the election in Rivers, Borno, Jigawa, Zamfara, Benue, Kogi, Kwara, Niger, Osun, Ekiti, Ondo, Oyo and Ogun states.

INEC had on 1 March declared Mr Tinubu the winner of the election with 8,794,726 votes. Mr Tinubu led in only 12 of the 36 states of the federation.