CLOSE-UP: National security, public policy… other reasons INEC opposes server’s inspection

WHILE responding in April to a petition from the People’s Democratic Party (PDP) and its presidential candidate challenging the declared presidential electoral results, the Independent National Electoral Commission (INEC) had denied rather suspiciously that it transmitted poll results electronically.

The commission has also said point-blank to the Presidential Election Petition Court, sitting in Abuja, that it does not have a central server. But this isn’t the only reason why it’s against the petitioners’ application to inspect servers, which they said INEC used in storing “database packets relating to accreditation of voters and transmission of results”.

A copy of the court’s ruling on the application delivered on June 24 and obtained by The ICIR details other arguments put forward by INEC.

It is against national security…

Yusuf Ustaz Usman, a Senior Advocate of Nigeria who led INEC’s team of five senior advocates and 10 junior lawyers, urged the court to dismiss PDP’s application on a number of grounds, including national security. It explained that these arguments were given for hypothetical reasons only; that is assuming a server indeed exists.

According to the court document, Usman submitted that “assuming without conceding that there is a server which the 1st Respondent [INEC] has denied and issues joined on that point by the parties, granting access to the server as requested by the Petitioners would amount to compromising the Nigerian Public Policy and National Security”.

In buttressing this point, INEC referred to sections of the Electoral Act (52, 54, and 125) and said the law’s intention is to protect the secrecy of voting and the rights of voters.

Another argument advanced by the electoral commission was that unless the Electoral Act is reviewed to make provision for technological instruments, “access to a server is not required for the proof of the petition”. This position, it said, was supported by the Supreme Court in a 2016 case between Abia State governor Okezie Ikpeazu and Alex Otti, 2015 gubernatorial candidate of the All Progressives Grand Alliance.

INEC also contended that the application violates a legal principle known as res judicata that states that the same matter cannot be decided on twice by the court.

Usman said the petitioners had earlier filed the same application before the tribunal seeking to access INEC’s central server and the court had refused to grant it.

He submitted that “a decision of a court or tribunal not appealed against remains subsisting and binding on all the parties” and added that the court lacks jurisdiction to entertain the same plea.

In a counter-affidavit also referenced in the court’s ruling, INEC maintained that Smart Card Readers were only used for voter authentication and that “it does not have the so-called central server, for collation and transmission of election results as described by the petitioners”.

“The 1st Respondent (INEC) asserts that no figures or votes collated during the 2019 presidential election were transmitted to any central server, and none was also aggregated in any server referred to as INEC RSLT SRV2019 whose physical address is 94-57A5-DC64-B9 as alleged by the petitioners. The said server is strange to the 1st Respondent,” the counter-affidavit also stated.

INEC further swore in its statement that its chairman nor any of its authorised spokesperson ever “stated that it was employing the system of electronic transmission of result to any central server as there was no central server for that purpose”.

Earlier reports by The ICIR, however, showed that many top officials of INEC confirmed right before the election that the commission planned to engage in electronic transmission of results to a server for transparency.

INEC chairman Mahmud Yakubu himself said in 2017 that the commission is pioneering and hopes to deploy “in the 2019 general elections a new platform for electronic collation and transmission of results.”

It was also established that N2.27 billion was budgeted by INEC for server-related procurement items, and not only was this money released it was also reported as spent by the commission.

It said in June that it would at the right time give an account of how it spent the money but has yet to do so nearly a month after.

PDP’s response

Senior Advocate of Nigeria Livy Uzoukwu, in a written address filed on behalf of the petitioners, said INEC “completely misconceived” their application. On the allegation of violating the res judicata principle, he explained that the motion ex parte filed and heard in March is totally different from the new application filed in May.

“It was also submitted that a distinction must be drawn between a motion ex parte wherein rights of parties have not been decided, and a motion on notice where parties are heard and a decision arrived thereon, on the rights of the parties more so that a relief refused in an ex parte application may be granted in a motion on notice.”

An ex parte decision, the senior counsel said relying on a 2017 Court of Appeal judgement, is not a final decision between the parties in a case.

On INEC’s argument that granting the application will compromise national policy and security, PDP said they did not demonstrate this point considering that their plea stated clearly the nature and extent of the data sought.

“It was further submitted that, on the contrary, if there is any national public policy that the court should be concerned with, it should be the transparency of the electoral process and the neutrality of the electoral umpire,” the court document noted.

INEC not alone in denying server’s existence

It is not only the electoral body that has maintained that there is no server in its statements before the election petition court.

President Muhammadu Buhari’s counsel also told the court “the whole idea of a server belonging to the 1st respondent only exists in the imagination of the petitioners”.

The lawyer representing the All Progressives Congress (APC) made the same submission using similar words.

The petitioners, in their response, said since the servers are in the custody of INEC, it is “strange and presumptuous” for the APC to claim they do not exist.

The court’s decision

The Presidential Election Petition Court, in reaching its decision, considered if it would meet the end of justice to grant the application even though the parties do not agree and issues have been joined on the existence of a central server.

“It will no doubt be out of place and justifiably clothe this court with the garb of bias if it proceeds to grant the reliefs as sought by the petitioners,” Mohammed Lawal Garba, a justice of the Court of Appeal, held.

“In other words, by so doing, this court would have delved into and resolved the contentious issues aforementioned at an interlocutory stage. The unpalatable scenario that will be created in the circumstance will be that this court has by implication agreed that there is a central server in the custody of the 1st Respondent and this court will be seen as having engaged in making an order that touches on the substantive matter.”

Thus, in order not to be guilty of “pre-judging a fundamental issue already joined by the parties”, Garba ruled, to the unanimous agreement of the four other justices, that the petitioners’ request for inspection was not granted.

'Kunle works with The ICIR as an investigative reporter and fact-checker. You can shoot him an email via [email protected] or, if you're feeling particularly generous, follow him on Twitter @KunleBajo.

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