2023 Election Court Diary: INEC’s disappearing witness and the N117b man – How INEC Chairman said, “Go to court” but didn’t go himself
By Emmanuel Ogebe
Due to family bereavement, my return to Washington was delayed so I had another day of court observation.
The morning session was the adjourned LP case in which INEC said previously that they were calling three defense witnesses. Like the elections itself, once again, INEC over promised and under delivered!
The sole witness was the same IT director who’d testified the prior day in PDP’s petition.
Ironically, without further ado, the court proceeded with the order of witness examination fiercely fought for and successfully obtained by PDP’s Chris Uche, SAN the day before.
Like trailblazers generally, his legacy spoke for him even in his absence. LP’s lawyers enjoyed the fruit of his labour possibly not knowing the “labour of heroes past”.
Since it was the same witness and evidence of the previous day, I won’t reprise that. However just as I expected, LP could simply have been invited to join his examination the day before in the PDP hearing and it would have saved us the trouble of coming back another day for him again.
Indeed rather than the co-respondents having multiple questioning of their side’s witness, a more meaningful use of time would have been to have LP lawyers do so as well.
However since INEC promptly closed its case again in the LP case after the solitary witness, it wasn’t a significant loss of time.
I noticed that Olanipekun SAN, counsel to Tinubu, was reluctant to have the IT Director speak as his attempts to explain himself were shut down. This created the impression that the witness was not dependable to say the truth.
An interesting exchange was of course with the irrepressible Ikwueto SAN who challenged the IT Director that he was also a pastor, implying thereby that he should be mindful of the truth.
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INEC’s counsel objected, asking the court to call to order witness “intimidation.”
I think a couple of takeaways for me were telling. The IT Director had testified to PDP previously that there was a glitch but claimed they didn’t report it to Amazon.
This time when drawn to specifics in his cloud trail report exhibit, he insisted that the problem was “resolved.”
He insisted E-transmission server was not vulnerable but Ikwueto maintained that the report had remediation for high vulnerability identified.
I wasn’t sure what the line of questioning was aimed at but I imagine it is not helpful to INEC’s case if the IT Director insisted that the glitches were resolved but yet only 31% of IREV results uploads were “mathematically correct” as of the day of the declaration of a president-elect on March 1 per the new EU election observers’ report which he’d read out in court the day before.
Similarly he was asked if the BVAS had any inbuilt mechanism for distinguishing between election races, for instance, NASS and presidential but answered in the negative that only human selection could do that.
Asked if it was possible for a form EC8 PU result uploaded could be altered or different from the hardcopy, he ultimately conceded that “Anything can happen when uploading an image. But it won’t alter content.”
(This in no way explained away to me IREV uploaded results I had seen in Benue, Borno amongst others that showed pictures of men and women including one in a bathroom!)
However the IT Director’s undoing was the last question posed by Ikwueto:
“Look at Exhibit ECA23 – read what is the score of APC?
Answer: The document is blurry but it has no effect on the results.”
His refusal to answer the question irked both the court audience and the court. How could 18,000 blurred results not affect the results of an election?
This last answer and one of the first when he was asked if system testing was done between February 3-6 and he replied, “No. it was done on February 4th,” did not acquit creditably, the pastor Director as a witness of veracity.
Again within three hours, INEC’s defense of its N300 billion election in 176,000+ polling units was done in a clear indication that it couldn’t marshal enough witnesses to defend the indefensible.
An acquaintance in the US was an IT team leader for a prominent social media corporation responsible for monitoring the accounts of all Nigeria’s top political figures during the elections to ensure there was no sabotage, hack or hanky panky. I could not for the life of me imagine why INEC after spending over N100 billion on IT, did not similarly have Amazon and allied tech professionals on standby on ground or on call virtually to protect and trouble shoot glitches.
INEC’s IT witness did not report to them as service providers to do a “root cause analysis” of the glitch and to mitigate any purported glitch or attacks.
The standard operating procedure when a client experiences glitches is the equivalent of someone whose car, ID, phone and bank card were stolen. The usual response is:
1. Report to police to investigate (root cause analysis is equivalent of police report)
2. Then use it to mitigate the crime (ie use police report to block your bank account from thieves, do welcome back on your phone line, obtain a new passport or ID etc.)
What INEC in effect is saying is that despite spending billions and four years to prepare for the election, they had problems on the very day they most needed it. But they didn’t even bother to report to or ask their service provider to fix it!
INEC chair Mahmoud ordered parties to “go to court” when they asked him to review the elections within seven days as he was empowered to do by law. Yet he didn’t go to court himself and couldn’t even produce a witness who worked for him and lives in Abuja on the very first morning of their case.
But what did Mahmoud do? He gave a press conference to address concerns raised by the EU observer mission showing his contempt for Nigerians and their courts and his deference to westerners.
Even worse, Mahmoud is only now undertaking a “review” of the election over three months later when he should have done this as at when due by law thus saving the nation and parties a torturous legal process.
As it stands, the election umpire’s seven day duty to review is not unsimilar to the referee’s VAR power in a soccer match. The referee pauses the match and reviews the play and makes a determination if it was a goal, offside or penalty. Kenya resolved their elections within days. The umpire doesn’t wait till a month after the match to review VAR and retroactively assign a goal.
The height of abuse in this election is such that certain officials who presided over this farce must be prosecuted. I found laughable Mahmoud’s declaration that 250 election offense cases would be prosecuted.
What is apparent, based on assessment by my colleagues and I, is that INEC is attempting a reprise of its 2019 election case where it simply denied existence of a server. Now it is attempting to deny its multimillion dollar IREV.
Similarly the testimony of PW7 the Amazon lady in LP’s case stands secure and unimpeached with regard to server health status. If there was a system glitch, INEC should have since sued the provider for breach and thereby fully exonerated itself from all implications of malfeasance.
I conclude with two thoughts – the election trial is a pitiful case where citizens are essentially suing the government for criminal and corrupt conduct. Usually it should be the role of the state to hold citizens accountable but in Nigeria, government is essentially organized crime and the reverse is the case (more so even given the current surreality.)
However even more sadly is the double standards in our society – A young girl is in trouble for alleged examination malpractice and fake result via compromise of a government admission website (JAMB portal). An old man is in presidency despite election malpractice, fake certificates and results and compromise of a government election website (INEC portal).
While DSS is investigating the teenager, DSS is protecting the alleged septuagenarian.
The teenager has been banned from further admission exams for three years with her employability and reputation ruined in perpetuity but the self-proclaimed Septuagenarian is assured of eight years in office, if the current travesty is left to stand, and riches in perpetuity thereafter.
In Nigeria, the scale of criminality comes with inbuilt immunity and impunity “pro max” as the youth nowadays say.
- Emmanuel Ogebe, Esq, is a prominent US-based international human rights lawyer and Nigeria pro-democracy advocate with the US NIGERIA LAW GROUP in Washington. Last month, he marked the 27th anniversary of his abduction and torture by Gen. Abacha for demanding an investigation of the assassination of pro-democracy icon Kudirat Abiola over the June 12 election annulment. His advocacy led to the naming of Kudirat corner by Nigeria house in New York, the US designation of Boko Haram as a foreign terrorist organization and International Criminal Court Prosecutor’s determination of crimes against humanity in Nigeria amongst others.