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Why Atiku can’t inspect INEC server now – Tribunal

The Presidential Election Petition Tribunal (PEPT) yesterday refused to grant the application filed by Atiku Abubakar and the Peoples Democratic Party (PDP) for access to inspect the server and data of smart card readers used by the Independent National Electoral Commission (INEC) for the presidential election of February 23, 2019. Atiku was the presidential candidate of the PDP in the election.
The five-man panel headed by Justice Mohammed Garba yesterday ruled that granting the application would imply that the court had delved into and resolved the contentious issue of the existence of a central server at INEC.
Garba also explained that doing so would further create the impression that the tribunal had concluded that there was a central INEC server where results and data of the February 23 election were received and stored.
On June 13, 2019, the tribunal reserved ruling in the application filed by Atiku and PDP on May 8, 2019 for access to inspect INEC’s central server and smart card readers allegedly used in the conduct of the presidential election.
In the unanimous decision yesterday, the tribunal declined granting the application on the grounds that since parties had joined issues, the court could not at the interlocutory stage make an order that would affect the substantive issue.
Justice Garba said: “I decline to grant the relief sought. This application is refused and accordingly dismissed.”
The lead counsel to the petitioners, Chris Uche (SAN), said the decision of the tribunal would be challenged at the Supreme Court, adding that section 151 of the Electoral Act allows them to inspect materials used by INEC for the election.
The senior counsel said the nation had been looking forward to the ruling of the tribunal on the petitioners’ application seeking to inspect the electoral materials, which he described as pivotal. Uche claimed that granting the application would in no way prejudice the substantive matter.
According to him, INEC is a public institution and the commission earlier mentioned having a central server. He said he wondered why INEC turned around to say it had no server.
“We are not asking the court to decide whether there is a server or not, so the aspect of the court prejudging in the issue doesn’t arise at all. All we are saying is that the court should allow us access to inspect the materials, which we are entitled to inspect as INEC is a public institution funded by public funds. So we are going to challenge that,” he said.
Another counsel to the petitioners, Mike Ozekhome (SAN), in his reaction said: “INEC’s chairman himself, Prof. Mahmoud Yakubu, maintained before and during the election that there was a central server, that results were going to be electronically transmitted to that central server. And all the electoral commissioners have maintained that the stage we are in now is a technological stage where things would not be done manually and anything not done with the PVC, the results of which would be transmitted electronically to the central server, would not be valid.
“What the court has said today is like more or less that you don’t have the right under section 151 of the Electoral Act to maintain your petition, but we didn’t ask for details, we didn’t ask for content, all we asked for is to allow us access. So it is not an issue.
“We are appealing the decision because it is like tying your hands behind your back and expecting you to fight. We are appealing the decision because we want to know what is in the central server that they are hiding.”
According to Ozekhome, the public is also interested because a budget was made for procurement of the central server in billions of naira and it was approved by the National Assembly and the money was disbursed.
“So where is the money? What is there that they are hiding? This is not just a case between Atiku and Buhari, it is a case that has generated public interest for electoral transparency, credibility and freedom.”
Counsel to INEC, Yunus Ustaz Usman, agreed with the decision of the court that the parties were joined in the issue and witnesses had not been called so the matter could not be tried at the level it was in court.
Atiku and the PDP are claiming in their petition that by the figures obtained from INEC’s server, they won the presidential election against Buhari and the third respondent, All Progressives Congress (APC).
Based on the figures allegedly got from the server, Atiku said he scored 18,356,732 votes as against those of Buhari, who he said polled 16,741,430 votes.
However, the electoral body told the tribunal on June 13 that it did not have a server used for the general election.
In a related development, the Court of Appeal, Abuja, has ordered President Buhari to respond within five days to the appeal filed against his qualification for the 2019 presidential election.
The APC which nominated Buhari for the poll and INEC which accepted the nomination were also given five days within which to respond to all issues raised on the educational qualification of the president for the election.
Justice Abubakar Dati Yahaya, who issued the order yesterday, directed that Buhari’s counsel, Abdullahi Abubakar, must within the five-day ultimatum file necessary processes relating to the appeal against Buhari’s qualification filed by Kalu Kalu Agu, Labaran Ismail and Hassy Kyari El-Kunis.
The decision of the Court of Appeal followed a motion-on-notice filed by counsel to the three appellants, Uchenna Ndubuisi, on the qualification matter.
Buhari’s counsel and APC’s counsel, Abubakar and Temitayo Lasaki, had urged the court in their response to the motion to give them five days to enable them to file their respondents’ briefs of argument along with other processes so as to set the stage for the hearing of the substantive appeal.
Agu, Ismail and El-Kunis had approached the Court of Appeal to nullify and set aside the judgment of a Federal High Court, Abuja, which declined to hear their suit instituted to challenge the educational qualification of Buhari before the conduct of the 2019 general elections.
They are praying the court to reverse the judgment of the High Court on the ground that processes filed by Buhari and used to strike out their suit were not competent.
While faulting the judgment of the High Court which was predicted on the ground that their suit was statute-barred, the appellant claimed that the High Court erred in law and in its decision because they did not challenge the primary election that produced Buhari as candidate of the APC.

The parties are to return to court July 8, 2019.

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