- PDP, Atiku lose battle to access INEC’s server - Presidency hails tribunal’s ruling

The  Presidential Election Petition Tribunal (PEPT) has rejected the request by Atiku Abubakar and his party, the People’s Democratic Party (PDP), for permission to inspect a supposed central server, which they claim the Independent National Electoral Commission (INEC) used to transmit electronically results of the last presidential election.

They have vowed to appeal the verdict.

In a unanimous ruling on Monday, a five-man panel of the tribunal, led by Justice Mohammed Garba, dismissed the application filed by Atiku and the PDP, to that effect.

The tribunal said since parties to the petition were disputing the existence or otherwise of an INEC central server, it was wrong for it to grant the petitioners’ request to inspect a server, whose existence, usage or otherwise was being disputed by parties.

It noted that by averments contained in processes filed by parties, they had joined issues on whether or not there was a central server and whether or not INEC deployed it for the election.

The tribunal said granting the petitioners’ request to inspect a server, which the supposed owner said did not exist, will amount to the tribunal agreeing that a server actually exists.

It said the existence of a server, which forms a substantial part of the petition filed by Atiku and the PDP, should be determined at the hearing of the main petition.

Justice Garba, who gave the lead ruling, noted that “based on the facts deposed to in the pleadings in paragraphs 6 to 8 of the petition, which is to the effect that the election results were electronically transmitted to the 1st respondent’s server, in addition to the accreditation information from the smart card readers used for accreditation use for the election.

“And the respondents, having joined issues with the petitioners in respect of the same data, said to have been transmitted to the 1st respondent’s server, this court has to be circumspect and be minded, to peruse the petition as well as the respondents’ replies thereto, in order to confirm whether, in fact, parties have truly joined issues on the existence and use of a central server.

“There are, in paragraphs 26, 27, 28 and 29 of the petitioners’ petition, facts that for the said election, held on the 23rd of February 2019, the 1st respondent deployed smart card readers in accreditation as well as transmit election results directly from the polling units to the central server.

“But, the 1st respondents, in paragraph 6 of its reply, has totally denied the existence and use of electronic transmission of results in the presidential election of 2019.”

Justice Garba, after a careful analysis of averments in the processes filed by parties, held that averments in the processes filed by parties “have clearly and unequivocally shown that parties have, indeed, joined issues on the existence or otherwise of a central server and whether the results of the presidential election held on the 23rd of February 2019 was electronically transmitted

“Now, given the germane nature of this issue, which proof can only emerge at the hearing of the substantive petition, the question that comes to the fore is whether it will be rational; whether it will be judicious and to meet the end of justice, in accordance with the law, that the court should exercise its discretion in favour of the petitioners/applicants to grant access to what they call central server, in respect of which parties have joined issues.

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“However, from the pleadings before us, I am of the view that the averments in the petition and the respondents’ reply thereto, with regard to the existence of a central server and whether there was electronic transmission of the results of the presidential election, held on the 23rd of February 2019 and which issues have, admittedly been joined, substantially by parties, it is no doubt out of place and will not be expedient that this court should grant the prayers contained in the application.

“In other words, if the court grants the prayers sought in this application,it would have delved into and resolved the substantially issues aforementioned as regard the existence of a server and the electronic transmission of the election results, which scenario would be unpalatable and create the impression that this court has indeed, confirmed that there is a central server into which the result of the presidential election conducted on February 23, 2019 was transmitted and stored by the 1st respondent.”

Justice Garba said the court should be careful, while determining preliminary issues, and should avoid making declaration and observation that could touch or prejudging the substantial issue.

He added that the court cannot, in determining preliminary issued, determine the substantial issues.

Justice Garba said: “I decline to grant the reliefs sought in the application. The application filed on May 8 is hereby refused and dismissed.”

Atiku and the PDP, in their petition before the tribunal, claimed that they won the election based on results they downloaded from the said INEC central server, which INEC has consistently denied its existence.

INEC has consistently denied that it deployed any server for the transmission of the election results and that the extant Electoral Act and Electoral Guidelines do not allow electronic transmission of election results.

In the application, Atiku and PDP had prayed the tribunal for an order:

• granting access or the court’s supervised access and inspection by the petitioners in the presence of the 1st and 2nd respondents, if they so desire, of the 1st respondent’s server, wherein information are recorded and stored in data packages relating to the accreditation of voters and transmission of results from the presidential election, the subject matter of the petition;
• directing the 1st respondent’s Chief National Electoral Commissioner and /other officers to grant the petitioners access to the said data base in the 1st respondent’s central server;
• granting leave to the petitioners to inspect and obtain certified true copies (CTC) of smart card readers accreditation data from the smart card readers used for the said election as stored in the 1st respondent’s server; and
• an order granting leave to the petitioners to file the report of the inspection and analysis thereof at the trial.

The tribunal, in an earlier ruling. granted the 2nd respondent (President Muhammad Buhari) the permission to amen his reply to the petition by Atiku and the PDP by including his lawyer’s name, address and national Identification number.

The tribunal overruled the petitioners’ objection to the amendment sought by Buhari, on the grounds that the amendment was not substantial enough to alter the nature of the case.

It agreed with Buhari’s lawyer, Wole Olanipekun (SAN), that the petitioners, having in the past obtained the tribunal’s permission to serve documents on Buhari through the office of the All Progressives Congress (APC),it cannot object to the inclusion of the 2nd respondents lawyer’s address.

The tribunal reserved till a later date ruling on the petitioners’ preliminary objection to Buhari’s reply to their petition.

The tribunal said since the Preliminary objection affected the petition, it was better to determine it at the stage of determining the petition.

Reacting to the tribunal’s rejection of therequest to inspect server, two senior lawyers from the petitioners’ legal team, Chris Uche (SAN) and Mike Ozekhome (SAN) said their client will appeal to the Supreme Court.

Lawyer to INEC, Yunus Usman (SAN) said he as comfortable with the tribunal’s decision and challenged the petitioners to prove their case at the hearing of the petition.

Uche said: “ you know the nation was looking forward to this ruling. It is one that is very pivotal to this matter. You know the Electoral Act empowers the court and the tribunals to grant access, such as this, to petitioners in order to institute andmaitain apetition andthatisallwe are asking.

“But the court has ruled otherwise. Definitely, this is a matter that we want to take higher to the Supreme Court to challenge this ruling, because we strongly feel that Section 151 of the Electoral Act entitles us to have access to this materials.

“We are not asking the court to decide whether there is a server or not. So, the aspect of the court prejudging any issue does not arise at all.

What we asked was for the court to allow us access to the materials used for the election. INEC is a public institution, funded by public finance. Definitely, we are going to challenge the decision of the court today.

Ozekhome claimed that INEC chairman and some other senior INEC officials, including Mike Igini (Akwa-Ibom) maintained that INEC would adopt electronic means and not manual in transmitting the results.

“What the court has said today is that you do not have the right under Section 15 of the Electoral Act to maintain your petition. We did not ask for details. all we asked as for access to the result of the election.

“Meanwhile, one of their spokesmen had written a petition to the Inspector-General of Police (IGP) that the petitioners have hacked into their server. The question is which server?

“Like what my learned brother, Chris Uche (SAN) has said, we are appealing against this decision, because it is like tying your hands behind your back and expecting you to fight.

“We need to know what is in the central server. We want to find out what is there that they are hiding.

Usman said: “We are satisfied. The court has said it cannot delve into those issues raised by the petitioners in its application when parties have joined issues on them in the substantive petition.

“These are the issues to be tried. you can try the by piecemeal. “

To the Presidency, yesterday’s rejection of the request by the Peoples Democratic Party (PDP) and its candidate at the February 23 Presidential election, Alhaji Atiku Abubakar to inspect the Independent National Electoral Commission’s server is justice over propaganda.

The election tribunal turned down the opposition party’s request to inspect the server.

A statement by the Senior Special Assistant on Media and Publicity, Garba Shehu, reads “In a landmark ruling by the Presidential Election Petitions Tribunal (PEPT), a desperate attempt by the Peoples Democratic Party (PDP) to overreach judicial process was overwhelmingly rejected by a unanimous decision and the long standing principle of law has once again been re-enacted.

“An attempt to cause the determination of an issue that constitutes the fulcrum of contention between the parties, at an interlocutory stage, has again been rejected by the tribunal.

“What this means is that Justice and fair hearing through due contest by the parties of a major issue for determination remains sacrosanct and remains considerable by the tribunal upon according parties just and fair hearing and not the other way round.

“The election petitions tribunal unanimously rejected the PDP’s request to inspect a server which existence is being disputed.

“The existence of a purported server is being contested and if a purported inspection had been allowed at this stage, it would have amounted to the determination that it indeed existed even when its existence is being contested.

“The electoral law prescribes manual transmission of results only and this was what the Independent National Electoral Commission (INEC) did, in obedience to the law as witnessed by real electoral observers.

‘YIAGA Africa deployed 3906 real individuals to run a parallel tabulation which returned the same results the INEC announced.” he added

Last week, he said, the final reports of the International Republican Institute and National Democratic Institute (IRI/NDI) electoral observer mission made clear that the results of the election reflected the votes cast.

According to him, President Muhammadu Buhari won with a majority of four million votes and because only real votes matter, INEC announced him as the winner of the 2019 presidential  election.