Upon declaration of winners in election cycles, various post-election issues will unfold, ranging from non-compliance with the Electoral Act and/or Independent National Electoral Commission (INEC)’s guidelines for Conduct of Election, corrupt practices, over-voting, rigging, voters’ disenfranchisement, to mention but a few. In recent past, allegations of over-voting, especially by the parties who were not declared winners of election, are quite common.
To start with, over-voting in an election arises when the total number of votes cast in an election exceeds the total number of accredited voters. To put it differently using 100 Accredited Voters as a case study, over-voting in a polling unit would arise where the total number of votes cast is 101 or more.
OVER-VOTING UNDER THE ELECTORAL ACT, 2022.
Section 51 of the Electoral Act, 2022 deals with the issue of over-voting and it provides as follows:
(1) No voter shall vote for more than one candidate or record more than one vote in favour of any candidate at any one election.
(2) Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit.
(3) Where the result of an election is cancelled in accordance with subsection (2), there shall be no return for the election until another poll has taken place in the affected polling unit.
(4) Notwithstanding the provisions of subsections (2) and (3) the Commission may, if satisfied that the result of the election will not substantially be affected by voting in the area where the election is cancelled, direct that a return of the election be made.
It should be noted beforehand that where the word ‘SHALL’ is used in any piece of legislation or enactment, like the Electoral Act, it connotes mandatory discharge of duty or obligation. See: TABIK INVESTMENT LTD & ANOR VS. GTB PLC (2011) LPELR 3131 at Page 16. It is therefore clear from the above provision of law that an accredited voter is mandatorily entitled to ONLY one vote in an election. That is, one voter, one vote. No more, no less.
LEGAL CONSEQUENCES OF OVER-VOTING
Section 51(2) of the Electoral Act, 2022 provides that where the number of votes cast (including rejected and void votes) at an election in any polling unit exceeds the number of accredited voters, the Presiding Officer shall cancel the result of the election in that polling unit.Where, however, INEC issatisfied that the cancelled result in a polling unit as a result of over-voting will not substantially affect the general election, a winner will be announced, none.
HOW DO YOU PROVE OVER-VOTING IN AN ELECTION?
Proving over-voting in an election is not as easy as it sounds. First, it must be sufficiently proven by the Petitioner that the total number of votes cast in such election outweighs the total number of accredited voters. This can be done by the use of documentary evidence, supported by credible witnesses, preferably party agents who are direct eye witnesses at the affected polling units.
Our courts have held in quite a number of cases that a Petitioner who alleges over voting should go beyond the letters of his petition. Thus, the Appellate Court in MOMOH & ANOR VS. FRANCIS & ORS (2019) LPELR-49000(CA) held that it is not enough for a Petitioner to simply allege that there was over-voting in a particular election, the Petitioner must provide credible and irresistible evidence to support his case and establish that the over-voting is substantial. To establish that over voting has occurred in an election, such Petitioner must do the following:
(a) Tender the voters’ register or BVAS report;
(b) Tender the statement of result in the appropriate Forms which would manifestly show that the total number of votes cast exceed the number of accredited voters;
(c) Relate each of the document to the specific area of his case in respect of which the documents are tendered;
(d) Show that the figure representing the over-voting if removed would result in victory for the petitioner.
See: SHINKAFI & ANOR VS. YARI & ORS (2016) LPELR – 26050 Pages 32 – 33 and 35 – 36, IKPEAZU VS. OTTI & ORS (2016) LPELR 40055 SC Page 72, LADOJA VS. AJIMOBI & ORS (2016) LPELR – 40658 SC
The practice is that the petitioner shall call respective polling unit agents in the areas where over-voting is alleged to give direct oral evidence in court – so as to avoid issues of hearsay evidence. Interestingly, one of the innovations of the Electoral Act, 2022 is to partially do away with litany of witnesses in election petition proceedings once documentary evidence can sufficiently establish over-voting. Thus, Section 137 of the Electoral Act, 2022 provides that “it shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies, manifestly disclose the non-compliance alleged”.
With the advent of the Bimodal Voter Accreditation System (BVAS), the petitioner may prove over-voting by comparing the Certified BVAS Report with the INEC Voters Register and Polling Unit results.
CONCLUSION
Proving over-voting is certainly not a tea party. The Petitioner must further show to the Court or Tribunal that indeed, over-voting occurred and that it substantially affected the result of the election, such that if over-voting had not occurred, the result of the election would have been in the favour of the Petitioner. It is therefore necessary to further establish that the over-voting was done in favour of the declared winner of the election.
Benedict Olutan is an associate at Festus Ogun Legal (FOLEGAL), Lagos.
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