29th August, 2011
The Congress for Progressive Change, CPC, which is challenging the victory of President Goodluck Jonathan at the April 2011 Presidential election on Monday in Abuja, traded legal tackles with the Independent National Election Commission, INEC, the Peoples Democratic Party, PDP and the President over the issue of access to the election materials in custody of the electoral umpire.
It is recalled that the court had on the 24th of May ordered that the CPC and other parties in the petition be allowed access to materials used by the electoral body in the conduct of the presidential election. The order was based on the agreement reached by lawyers representing parties in the petition which the court adopted as the order of the court.
Consequent upon this agreement and the order made by the court, the CPC attempted to access the biometric database of the electorate collated by INEC through the massive deployment of the Direct Data Capturing Machines across the nation in the build up to the last general election, but was refused the opportunity to scan all the contents of the electoral body’s database. The party protested and consequently applied to the court to enter judgment in the it’s favour due to the frustrating antics of the electoral body to frustrate the effect of a valid order of the court.
CPC’s lawyer, Mr. Oladipo Kposeyi, a senior advocate of Nigeria told the four- man panel of the Court of Appeal led by Justice Lawal Garba Muhammed that what INEC offered to them were photocopies of ballot papers and argued that this is not good enough for his client, the petitioner, who intends to engage a forensic expert to analyse the ballot papers with a view to establishing multiple voting.
Mr. Kposeyi argued that photocopy material will affect the outcome of forensic analyses of the electoral materials and that what the CPC wants is an electronic or soft copy of all the contents of the Database of materials used for the conduct of the presidential election.
Relying on an earlier case decided by the appellate court in Mudashiru vs Abdullahi as recorded in 2011, 7th Nigeria Weekly Law Report, Kposeyi insisted that photocopied materials are not appropriate for forensic matters and insisted on having the original contents of the biometric database scanned electronically and further asked the court to enter a default judgment in CPC’s favour in view of the attitude of the electoral body in response to a valid order made by the Tribunal on the 24th of May.
In opposition to the application made by the Congress for Progressive Change, CPC, the electoral body through it’s lawyers led by Mr. Kehinde Ogunwumiju, told the court that the only issue for determination in the application moved by CPC is the definition of the term “Access” as contained in the order in question and informed the court that allowing the CPC an electronic copy of INEC’s database will breach section 125 of the 2010 Electoral Act as amended. The provision provided that only the electoral body is empowered to be in custody of the database and argued that allowing CPC to have an electronic copy of the biometric data of all registered electorate will expose the electorates’ bio details, work information and addresses as well as reveal which party they voted for thereby breaching the confidentiality provision and will expose the nation to a great security risk as identities of persons and the parties they voted for will then become public.
Dr. Alex Izionyon (SAN) who represented President Goodluck Jonathan and Vice President Namadi Sambo opposed the CPC’s application which he said amounted to a call to the call to interpret its order. He told the court that the order it granted was based on the request of the CPC for access where the party listed the documents it wants to be allowed access to. He argued the party merely wanted to re write the court’s order through the back door by introducing the issue of scanning the DDC machine and soft copies which were not in the court’s order and urged the court to deny the CPC’s application as it offends the provision of Paragraph 42 (5)(b)of the 1st 1st Schedule as well as section 125 (3) of the Electoral Act 2010 as amended and will breach National Security.
Similarly, Chief Joe Kyari Gadzama, SAN, who represented the Peoples Democratic Party, PDP, in his opposition illustrated the issue of access by stating that as a counsel, that he has access to the court during proceedings but will need an express permission of the court officials to take away any court document. He averred that what the order granted the CPC was access to materials used in the election as well as certified true copies of specifically listed documents and not the biometric information of voters and who they voted for.
Consequently, the court adjourned with a promise to communicate with counsels on the date of ruling on the application.
By Nnamdi Felix / Abuja