Atiku demands INEC’s compliance with court order authorising inspection of electoral materials

The presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar, has asked the Independent National Electoral Commission (INEC) to comply with a Court of Appeal order granting him access to inspect sensitive electoral materials.

INEC conducted the presidential and National Assembly elections on 25 February.

It declared the All Progressives Congress (APC) presidential candidate, Bola Tinubu, winner of the poll.

Mahmood Yakubu, INEC chairman, on 1 March, said Mr Tinubu polled 8.8 votes to beat his closest challenge Atiku.

But Atiku is challenging the outcome of the presidential election, alleging noncompliance with provisions of the Electoral Act, amongst others.

In preparation for the legal challenge, Atiku approached and obtained an order of the Court of Appeal in Abuja, granting him access to the Bimodal Voter Accreditation System (BVAS) machines and other electoral materials that were used for the conduct of the 25 February polls.

Non-compliance with orders disturbing

Armed with the court orders, Atiku through his team of lawyers being led by Joe-Kyari Gadzama, urged the INEC chairman to grant him access to inspect the electoral materials.

In the letter dated 9 March, Mr Gadzama, a Senior Advocate of Nigeria (SAN), lamented that efforts to get INEC to enforce the orders have been unsuccessful.

“On 6 March, our Clients’ representatives led by Adedamola Fanokun, Esq (office of the PDP National Legal Adviser) returned to the Commission ready to commence inspection, examination and obtaining of the electoral materials as ordered by the Court but they were informed at the Commission’s legal registry that there was no instruction yet from the Commission on the Court Order.”

With Atiku and the PDP pressed for time in filing their petition at the Presidential Election Petition Tribunal registry in Abuja, they sought “audience with the Commission’s Director of Litigation to accelerate the process but they were not allowed,” Mr Gadzama decried in the letter.

He noted that “it is disturbing that despite service of the Court Order on the commission since 3 March 2023, the commission is yet to allow our clients and their representatives to access, inspect and/or obtain the needed electoral materials as ordered by the court despite repeated visits to the commission and follow-up in respect thereof.”

Demands

With about 11 days left to lodge complaint on the outcome of the election, Mr Gadzama asked INEC to “immediately comply with the subsisting orders of Court.”

He requested a “daily access to all polling documents, voters register, ballot papers and electoral forms/materials for purposes of scanning, forensic audit, expert examination and inspection.

“Daily access to the BVAS machines/devices and server/IREV/backend/clouds for purposes of forensic examination and analysis; and

“CTCs of all BVAS accreditation reports, forms EC40A, EC8A, EC8AVP, EC8C, EC8D, EC8E and all other electoral forms/materials on a State by State basis.”

Expressing hope that their demands would be acceded to, Atiku’s legal team vowed to “continue to visit the Commission on a daily basis for the exercise as set out above in line with the subsisting order of the Court.”

INEC had withdrawn its application before the Court of Appeal, in which it prayed the court to review its earlier order granting Atiku access to the electoral materials.

In the application, the electoral umpire urged the appellate court to vary the orders to enable it reconfigure the BVAS machines it intends to deploy for the 18 March governorship and state parliamentary elections.

The 1999 Constitution (amended) provides that a petition concerning the outcome of the general elections must be lodged at a tribunal within 21 days from the date a winner is declared.

Read Atiku’s letter to INEC chairman below:

PRESS RELEASE

Atiku demands innmediate compliance with court order on access, inspection, exmaination of electoral materials

9 March 2023.
The Chairman, Independent National Electoral Commission (INEC),
Plot 436, Zambezi Crescent, Maitama, Abuja.

Attention: Prof. Mahmood Yakubu
Dear Sir,
DEMAND FOR IMMEDIATE COMPLIANCE WITH COURT ORDER GRANTED ON 3 MARCH 2023 FOR ACCESS, INSPECTION AND EXAMINATION/ANALYSIS OF ELECTORAL MATERIALS USED FOR 2023 PRESIDENTIAL ELECTION

I am Lead Counsel to Alhaji Atiku Abubakar GCON and the Peoples Democratic Party (our Clients) who participated in the 2023 Presidential Election which held on 25 February 2023, and on whose behalf we write in respect of the above caption. You will recall that the Court of Appeal, presided over by Hon. Justice Shagbaor Ikyegh, JCA sitting in Abuja, granted orders on 3 March 2023 in favour of our Clients.

The Court expressly directed the Independent National Electoral Commission (INEC) to allow and grant access to our Clients and their representatives to inspect, scan, make copies, forensically audit and obtain certified true copies (CTC) of all electoral materials which were used in the conduct of the Presidential Election.

The Court in Order no. 6 specifically allowed our Clients to carry out forensic examination/analysis of the BVAS machines/devices and all information stored in the server/IREV/backend/clouds, amongst others. The enrolled Court Order was duly and promptly served on the Commission on the same 3 March 2023 by the Court bailiff accompanied by our Clients’ representatives.

We have attached the acknowledged copy of the Court Order for ease of reference. It is our Clients’ brief that upon service of the Order, they immediately Page 2 of 3 requested for a date to follow up and they were asked to return on 6 March 2023.

On 6 March, our Clients’ representatives led by Adedamola Fanokun, Esq (office of the PDP National Legal Adviser) returned to the Commission ready to commence inspection, examination and obtaining of the electoral materials as ordered by the Court but they were informed at the Commission’s legal registry that there was no instruction yet from the Commission on the Court Order.

Our Clients further requested audience with the Commission’s Director of Litigation to accelerate the process but they were not allowed as they were told by the Registry staff that the Director was in a meeting. Sadly, these and other efforts by our Clients have yielded no result.

It is disturbing that despite service of the Court Order on the Commission since 3 March 2023, the Commission is yet to allow our Clients and their representatives to access, inspect and/or obtain the needed electoral materials as ordered by the Court despite repeated visits to the Commission and follow-up in respect thereof. No doubt, the Commission is bound by the orders of the Court and cannot choose if, when and/or how to comply with same. The unqualified obligation of the Commission, which of course includes INEC officials, is to unhesitatingly comply and give effect to the subsisting order of Court; there is no discretion to exercise here. In the circumstances, we hereby demand that the Commission should immediately comply with the subsisting orders of Court and in particular, we reiterate the following demands on behalf of our Clients:

1) Daily access to all polling documents, voters register, ballot papers and electoral forms/materials for purposes of scanning, forensic audit, expert examination and inspection;

2) Daily access to the BVAS machines/devices and server/IREV/backend/clouds for purposes of forensic examination and analysis; and

3) CTCs of all BVAS accreditation reports, forms EC40A, EC8A, EC8AVP, EC8C, EC8D, EC8E and all other electoral forms/materials on a State by State basis.

We hope that our demand will receive the prompt positive action that it requires as we will continue to visit the Commission on a daily basis Page 3 of 3 for the exercise as set out above in line with the subsisting order of the Court. Thank you in anticipation of your urgent positive action in this regard as time is really of the essence.

Please accept the assurances of our highest regards.
Yours faithfully,
PP: Atiku Abubakar/PDP Legal Team
Joe-Kyari Gadzama, OFR, MFR, SAN, FNIALS, FICMC, DiplCArb, FCIArb, FNICArb, C.Arb. (Of Lincolns Inn, Barrister/Life Bencher/Certified Mediator/Regulatory Consultant) ENCL

CC: 1) National Commissioner, Legal, Independent National Electoral Commission (INEC),
Plot 436, Zambezi Crescent, Maitama, Abuja.

2) Tanimu M. Inuwa, SAN Director, Litigation and Prosecution, Independent National Electoral Commission (INEC), Plot 436, Zambezi Crescent, Maitama, Abuja.

Demand to INEC to comply with Subsisting Court Order – with Order of Court – 9.3.2023.”