As reactions continue to trail the judgments of the Supreme Court in upholding the elections of some state governors on the platform of the Peoples Democratic Party (PDP) in spite of earlier contrary judgment by the Court of Appeal, some legal practitioners have described the use of the Permanent Voters Cards (PVC) by the Independent Electoral Commission (INEC) as unconstitutional.
According to some legal experts spoken with, the use of the PVC for the conduct of elections in the country was not recognised by the Nigerian Constitution, pointing out that the Constitution was yet to be amended to that effect.
Speaking in separate interviews with Daily Times, they stressed that the INEC only issued guidelines that enable the PVC to be used in the last general election.
According to them, the Constitution only recognised the use of manual voting for elections, stressing that in cases where the PVC failed and card readers were used, the result of the election were valid except proven otherwise.
A former Chairman Ikeja Branch of the Nigerian Bar Association (NBA) Barrister Tony Ubani noted that in spite of complaints of irregularity in the use of card readers in several states during the last general elections, the result of such election was valid until substantial evidence of irregularity was proven, adding that PVC was not recognised by the constitution.
His words: “INEC only issued guidelines for the use of PVC in the last general election, the Constitution was not amended to recognise theuse of PVC or card reader, our constitution recognises manual voting, there is no way you would replace a substantive law with a guideline”.
Speaking further, Ubani called for the immediate amendment of the constitution for the recognition of PVC, adding that only electoral reform could eliminate confusion and make political office less attractive which would aid free and fair elections in Nigeria.
In his view, Barrister Billy Dawodu stated that the resort to manual voting when there was malfunctioning of the card reader was within the law, except in case where proven that the process was manipulated.
He said: “You would recall that INEC PVC failed in several states, so when people resorted to manual voting, it is in order except when a case of manipulation is proven. But you cannot fault the Supreme Court for the judgment” Dawodu disclosed.
Already, the Supreme Court has explained why its rulings on the 2015 governorship elections failed to accord any probative value on reports relating to the Card Reader Machines deployed by the INEC, in the conduct of last year’s general elections.
It averred that while provision was made for the use of the Electronic Card Reader Machine for accreditation of voters in the Approved Guidelines and Regulations for the conduct of the 2015 general elections, the device was never “intended to supplant, displace or supersede” the Voters’ Register.
A seven-man panel of Justices of the apex court, led by the Chief Justice of Nigeria, Justice Mahmud Mohammed, who made this position known, while adducing reasons why the election of Governor Dave Umahi of Ebonyi State was upheld, observed that the issue caused various Divisions of the Court of Appeal to give divergent interpretations on election disputes that were brought before them by appellants.
According to the apex court, “True, indeed, the Card Reader Machine traces its paternity to the above Guidelines and Regulations. Regrettably, its probative pedestal in the vocabulary of electoral jurisprudence has generated conflicting interpretations from Their Lordships of the different Divisions of the Court of Appeal.”
Delivering the lead judgment, Justice Chima Centus Nweze held that, “With the intervention of this court, in its recent decision in Shinkafi v Yari (supra), it is hoped that practitioners and all other courts will begin to appreciate the position of the said Card Reader Machine, and the Reports generated there from, in election litigation.
“Prior to the authorisation of its use by the Guidelines and Manual (supra), the Electoral Act, 2010 (as amended), in sections 49 (1) and (2), had ordained an analogue procedure for the accreditation process. As a corollary to the procedure outline above, section 53(2) of the said Act (that is, the Electoral Act) enshrined the consequences for the breach, negation or violation of the sanctity of the actual poll sequel to the consummation of the accreditation procedure in section 49 (supra).
“With the advantage of hindsight, INEC, pursuant to its powers under the said Electoral Act, authorised the deployment of the said Card Readers. “Even with the introduction of the said device, that is the Card Reader Machine, the National Assembly, in its wisdom, did not deem it necessary to bowdlerise the said analogue procedure in section 49 from the Act so that the Card Reader procedure would be the sole determinant of a valid accreditation process.
“Contrariwise, from the Corrigendum No 2, made on March 28, 2015, amending paragraph 13(b) of the Approved Guidelines, it stands to reason that the Card Reader was meant to supplement the Voter’ Register and was never designed or intended to supplant, displace or supersede it.
“Indeed, since the Guidelines and Manual, which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the Voters’ Register whose judicial roots are, firmly, embedded or entrenched in the selfsame Electoral Act from which it (the Voters’ Register) directly, derives its sustenance and currency.
“Thus, any attempt to invest it (the Card Reader Machine procedure) with such overreaching pre-eminence or superiority over the Voters’ Register is like converting an auxiliary procedure- into the dominant procedure- of proof, that is, proof of accreditation.
“This is a logical impossibility. Indeed, only recently, this court in Shinkafi vs Yari, confirmed the position that the Card Reader Machine has not supplanted the statement of results in appropriate forms; hence, the appellant still had the obligation to prove petition relating to accreditation of voters and over-voting as enunciated in several decisions of this court,” he added.
The apex court panel, while citing an example with the Ebonyi State gubernatorial dispute as an instance, noted that the Head of Unit, ICT Data Management at INEC headquarters, who testified as the PW-8 before the tribunal, explained that the Card Reader performed two roles, namely, the verification of the PVC, and the authentication of fingerprint.
It observed that the witness, who generated a Card Reader Machines Report for Ebonyi State Governorship Election, had admitted that it was not a complete report covering all the details of Polling Units in the state as some Polling Units were not uploaded and thus not included in the report.
The witness said the report she tendered before the tribunal represented data that were successfully uploaded before the chairman of INECgave an instruction for the server to be shut down. According to the Supreme Court, “Her trenchant responses, clearly, demonstrate that the Card Reader Machine Reports were neither inviolable nor sacrosanct as a host of intervening mischievous human variables could impinge on their reliability.
“Against the background of the testimonies of PW8, it is, actually, surprising, that learned counsel to the appellant chose not to utilise the Voter’ Register, to show the entire gamut of the voters, but rather built his case on what, in the unanswerable words of the lower court was an exhibit that was not accurate, sufficient and comprehensive enough to be relied upon in proof of the allegation of non-compliance with the Electoral Act, 2010, as amended.
“That is to say that the appellant (as Petitioner) failed to weave his case on the Voters ‘Registers and a fortiori did not produce such registers because if he had produced them, their contents would have been unfavourable to the allegations he made in the petition and hence his decision to withhold them.
“Thus, the appellant laboured in vain in the spirited attempt he made before this court to have the findings of the lower court vacated. He was, indeed, attempting the impossible given the anaemic evidence he adduced. In my view, the lower court, rightly, affirmed the findings of the trial tribunal in this regard”. Besides, the apex court held that the appellant, Edward Nkwegu Okereke, who was the candidate of the Labour Party during the April 11, 2015, governorship election in Ebonyi State, could not lay credible evidence to support his case against Governor Umahi of the Peoples Democratic Party.
The Supreme Court then ruled that the case of the petitioner failed owing to “irreparable damage of the testimony of witnesses” that testified for him at the lower tribunal, who it said were “thoroughly discredited in cross-examination”.
Aside the CJN, other members of the apex court panel that also agreed with the lead judgment were Justices Ibrahim Tanko Muhammad, Kumai Bayang Aka’ahs, Kudirat Kekere-Ekun, John Inyang Okoro and Amiru Sanusi.

j

hmmmm