By Hashim Abioye Esq.,
Since the petitioners and the respondents joined issues in the election petition filed by Alhaji Gboyega Oyetola, the outgoing Governor of Osun State and his defeated party, the APC, I have for quite some time now deliberately refrained from commenting on the same for the sake of respect for the due judicial process. For this reason, I haven’t reacted to all the distortions, misinterpretations and misrepresentations by the APC especially the CPS to the outgoing Osun State Governor, despite the onslaught of questions from concerned members of our party and the public seeking clarifications.
However, I felt morally compelled to answer the “questionnaires”, as a matter of respect, albeit not in a way that will prejudice the petition at the Tribunal. I will address the issue from two perspectives, first, from the perspective of the documents already tendered or to be tendered by the petitioners and even the respondents at the Tribunal, and second from the perspective of the BVAS report which is the fulcrum of the petitioners’ petition. I have read and learnt about the euphoria in the petitioners’ camp celebrating the admission by the Tribunal of the documents tendered by the APC as if the admission automatically translates to victory.
I quip to add here that the loyalists of the outgoing Governor and his APC throwing parties for the reason of the Tribunal’s admission of the documents is laughable. For one, they might be ignorant of the proceedings at the Tribunal or might be deliberately playing a mind game of the usual false hope or imaginary victory to keep their party together in the face of the reality of the defeat they suffered at the polls and which, Insha Allah, will still be their lot at the Tribunal.
To clarify the issue surrounding the admission of the documents at the Tribunal, I will urge the public to get a copy of the Tribunal Pre-Hearing report in which it is clearly stated that all documents shall be admitted at the hearing while objections to their admissibility (if any) shall be taken at the final address stage. This invariably means that admission is different from admissibility. A document through admission will be expunged from the court’s records if it is found out in the end that the document is not admissible.
The import of this is that if any party to the petition brings any document, whether pleaded or un-pleaded, whether admissible or inadmissible, even if it is a leaf from a tree, the Tribunal will admit it, while the fate of its admissibility awaits it at the final address stage and ultimately at the time of ruling/judgement. So, what the petitioners’ loyalists have been celebrating and over which the pen of the CPS continues to dance furiously is nothing but a mesmerising mirage. There is nothing to celebrate.
The heavy loads on the shoulders of the petitioners in terms of the burden of proof haven’t in any way been lifted to any level, not to talk of shifting it to the respondents at all. The petitioners still have a long journey ahead, wallahi, “omi n be lamu”.
As for the BVAS report being celebrated by the petitioners, I will encourage members of the public to read sections 62(1), (2) & (3) of the Electoral Act, 2022. From the marginal note of the section, it is clear that the BVAS report is a post-election procedure which is undertaken after recording and announcing of results of the election. We may want to read about the importance of a marginal note in the interpretation of a statute, I commend the Supreme Court’s decision in OSSIEC .V. ACTION CONGRESS to the readers.
Going forward, note that the BVAS report is different from the BVAS machine itself. BVAS report is not an election procedure but a post-election procedure, while BVAS itself is an election procedure. While the BVAS report was not at the polling unit, BVAS itself was there. Whatever is contained in any BVAS report that is against what is in the BVAS itself will amount to nothing. The petitioners are relying on the BVAS report from INEC’s server which was a stranger to the polling units where the election was held, while the respondents are relying on the BVAS machine itself which was a manager at the polling units. We must be reminded that each BVAS machine has automatically stored on it the accreditation figure and result of each polling unit, as well as the scanned copy of the polling unit result. The time and date of the election results issue were also captured on each BVAS machine. We must note further that the BVAS itself is a primary source while the server is a secondary source which requires continuous maintenance and updating. In the event of any controversy from the secondary source, recourse is made to the primary source. That is the whole lot of the fate awaiting the APC and OYETOLA at the Tribunal. Their dream of mandate reclaim is like eating a pie in the sky, a false hope, like a recycled loss which can only produce another loss. All the euphoria of admission of the petitioners’ documents at the Tribunal is nothing but a mirage, building a castle in the air, and eating a pie in the sky. As far as Oyetola and APC’s defeat in Osun is concerned, the die has already been cast.
Hashim Abioye Esq. is the Secretary Osun PDP Legal Committee/Member Osun PDP Caretaker Committee.