The Presidential Election Petition Tribunal has rejected the request by the candidate of the People’s Democratic Party, PDP, Atiku Abubakar, and his party to be allowed to conduct forensic scanning and analysis of materials used for the February 23 presidential election.
The tribunal said such request was beyond the scope of the provisions of Section 151(1) & (2) of the Electoral Act (as amended).
In a unanimous ruling on an ex-parte application by Mr Atiku and PDP, a three-man panel of the tribunal, granted them the permission to inspect the materials and obtain Certified True Copies, CTC, of the materials.
However, in the lead ruling read by the leader or the panel, Justice Abdul Aboki, said the request by Mr Atiku and PDP to call experts to engage in forensic anylysis and scanning of the INEC materials was outside the scope of the meaning of inspection under Section 151 of the Electoral Act.
Recall that the lawyer of Mr Atiku and PDP, Chris Uche, SAN, had told the tribunal that the motion dated March 4, was brought pursuant to section 6(6) of the 1999 Constitution, as amended and section 151 of the Electoral Act, sought for six reliefs, among which included an order compelling the Independent National Electoral Commission, INEC, to surrender all the sensitive materials that were used for the presidential poll, for forensic scrutiny.
Among items, he said his client wants to be inspected by forensic experts, include over 80million ballot papers that were used for the election, which he said would be subjected to thumbprint analysis.
Other items the motion is asking the electoral body to release to the intending petitioners for scrutiny are the Voters Register, the Smart Card Reader Machines, as well as information stored in INEC’s back-up server.
He said the first prayer in the motion paper was for leave of the tribunal permitting Atiku and the Peoples Democratic Party, PDP, to file the action before the pre-hearing session of the tribunal, as prescribed by the Electoral Act.
The Applicants (Atiku and PDP) urged the tribunal to direct INEC to allow their agents to scan and make photocopies of vital documents used in the conduct of the election, for the purpose of establishing manifest irregularities they said led to President Muhammadu Buhari’s emergence as the winner of the presidential election.
They maintained that the six reliefs sought against INEC were for the purpose of filing and maintaining an election petition they intend to lodge against the outcome of the 2019 Presidential Election.
Chief Uche, SAN, said his clients decided to approach the tribunal with the motion, in view of the fact that the Electoral Act stipulated that filing of the petition must not exceed 21 days after the election result was announced.
“Because of the limited time, the Applicants who intend to file a petition, want to go and inspect, to be able to secure some of the documents that will be relied upon to maintain the petition. “We are urging your Lordships to grant us these orders so that if we are inspecting, we can make copies by way of scanning or photocopying.
“The entire process will be conducted in the presence of INEC officials, and even the Respondents if they so wish”, Uche submitted.
However, the tribunal Chairman Justice Aboki queried Uche on why his clients would not simply apply to be issued with Certified True Copies of the requested items, and if the extant electoral law permits a litigant to scan election materials.
The tribunal panel stressed that opinion of forensic experts may not be admissible in evidence under the existing Electoral Act which it said specifically okayed the admittance of certified documents.
A member of the panel, Justice Emmanuel Agim, noted that some of the requests by Atiku and the PDP were “outside the precincts of section 151 of the Electoral Act”.
However, in his reply, Uche argued that the court had in a plethora of decided cases, held that the sort of evidence his clients are seeking to secure, could be admitted if it were obtained with the leave of court.
He said it would be practically impossible for INEC to certify over 80million ballot papers that were used in over 172, 000 polling units in the country where the presidential election took place.
According to Uche, with leave of the tribunal, forensic experts would be brought to testify and give evidence during the eventual hearing of the petition.
“My lords if they are not allowed to secure the evidence and testify, it will deprive us of the ability to identify those abnormalities when we find them.
“Besides, if one individual thumb-printed over 500 ballot papers, the certified copies cannot reveal it. That is why we want to scan them and send for expert analysis.
“That is why we need INEC to allow us access to scan the required documents. Going by section 72 of the Electoral Act, all the materials are in the custody of INEC.
“The information we want to go is just to help us to package our complaint, at the end of the day, INEC will also have the opportunity to confirm the authenticity or otherwise of any of the items we tender in evidence before the tribunal.
“In essence my lord no one will be prejudiced if our requests are granted.
“We make this application, knowing the very limited time and very disadvantaged position of any petitioner so far as gaining access to the election infrastructure is concerned”, Uche added.
After it had listened to the motion, the panel stood-down for one hour to deliver its ruling, even as directed Atiku’s counsel to supply it with the said court decisions that allowed the grant the reliefs sought by the Applicants.
