The current arguments trending in the social media and carried by various print and electronic media is the declaration of the governorship election in Osun State on Sunday 23rd September 2018 by the INEC Returning Officer as inconclusive. It must be noted from the beginning here that lawyers argue their cases based on their area of interests while the law remains static until and unless changed by the law makers. That probably informed the reason Hart Pomerantz said “Law School taught me one thing: How to take two situations that are exactly the same and show how they are different.”
I wish to commence my contribution from the provision of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The section that is most relevant to this argument is S.179 (2)(a)(b). For the purpose of clarity, let me set out the provision herein:
179(2)“A candidate for an election to the office of Governor of a state shall be deemed to have been duly elected where, there being two or more candidates –
(a) he has the highest number of votes cast at the election;
(b) he has not less than one –quarter of all the votes cast in each of at least two-thirds of all the Local Government Areas in the state.”
From the provision aforesaid the conditions necessary for a candidate for an election to the office of a governor of a state are clearly spelt out. There is no proviso to the effect that these requirements shall be subject to any other law regulating elections in Nigeria.
Now section 69 of the Electoral Act 2010 (as amended) makes further provision to the way and manner of declaration of results in an election to the office of the governor thus:
S69: “In an election to the office of the president or governor, whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provision of sections 133, 134 and 179 of the constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.”
For the avoidance of doubt sections 133 and 134 of the Constitution make provisions for the way and manner a president shall be elected. So they are not relevant for the purpose of my argument herein. Now let us look at the results as announced by INEC to see whether any of the candidates fulfilled the conditions aforesaid. The result shows that APC polled 254,345 votes while PDP polled 254,698. Prima facie and even to the eyes of the unlearned, PDP polled the highest number of votes. That means PDP has satisfied section 69 of the Electoral Act and S.179 (2) (a) of the Constitution of the Federal Republic of Nigeria. This however is not the only requirement for the purpose of election to the office of the governor of a state. The next and conclusive requirement is whether the candidate has scored not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the state. This is as stipulated in S.179 (2)(b) of the constitution. The analysis of the votes polled by PDP as recorded by INEC shows that PDP has scored more than one-quarter in 27 Local Government Areas of the state out of the 30 Local Government Areas. Consequently PDP has also met this constitutional requirement.
Now one may ask, which law did INEC rely on to foist this inconclusiveness on Osun people? The law INEC pretends to rely on is chapter 3 para 3.11 step 14 of the manual for Election Officials 2015 (updated) which states thus:
3.11: “Final collation and declaration of governorship election results at state level
The state Collation/Returning Officer for the governorship election shall:
step 14 where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new form EC8D and subsequently recorded into a new form EC8E for declaration and return.”
It must be stated straightaway here that the provision aforesaid is from Electoral Guidelines made pursuant to the Electoral Act and which provisions are subservient to the provisions of the Electoral Act. Equally too, the provisions of the Electoral Act are subject to the provision of the constitution and if any of either the provisions of the Electoral Guidelines or Electoral Act are inconsistent with the provisions of the constitution, the provisions of the constitution prevail and the provisions of the Electoral Act and or Guidelines are void to the extent of the inconsistency. See S.1(1)(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) see also the following decided authorities EZE & ORS V GOVERNOR OF ABIA STATE & ORS (2010)LPELR 4133 (CA), SARAKI V FRN (2016) LPELR 40013 (SC) MOHAMMED V THE STATE (2015) LPELR-24397 (SC).
The fact that INEC did this in Imo State which facts are however distinguishable from the facts in Osun State does not make it legal. Many lawyers cite the case of HON JAMES ABIODUN FALEKE V INEC & ORS (2017) 3 NWLR (Pt 1543) 16 where the Supreme Court confirmed the decision of INEC to declare the election inconclusive as an authority in this respect. The decision of the Supreme Court in the above cited case was based on the fact that one of the candidates for the office of the governor had died before the election result could be announced. The facts therein are quite different from the facts in Osun State. Equally too, in CPC v INEC (2011) LPELR 8257 the Supreme Court gave effect to the relevance of the Election Guidelines but the court was never invited to pronounce on any situation that the provisions of the guidelines are in conflict with the provisions of the constitution. If this was done the holding of the Supreme Court would have been simple – the provisions of the guidelines are null and void to the extent of their inconsistency with the Constitution. All the cases cited by the protagonists of inconclusiveness of the Osun State Governorship Election are not applicable to the facts herein and are distinguishable with due respect. The decision in FALEKE V INEC (supra) was premised on the argument that reliance on INEC Guidelines was unconstitutional since the Constitution and the Electoral Act have made copious provisions for the conduct of election. The Supreme Court held that the relevance of INEC manual for Electoral Officers in the proper conduct of election was acknowledged in CPC v INEC (Supra).
INEC therefore has no sustainable legal reason to have declared the election which was won by a political party with the highest number of votes inconclusive.
My advice to the aggrieved party is to take this matter to court for the interpretation of Section 179 of the constitution of the Federal Republic of Nigeria 1999 (as amended), S.69 of the Electoral Act 2010 (as amended) and juxtapose same with the provisions of the Election Guidelines as applicable herein. If this practice of declaring an election which is obviously straightforward and has produced a winner inconclusive is not nipped in the bud, I foresee a very rancorous and tempestuous election come 2019. All hands must be on deck to save Nigeria from political manipulation and subsequent disintegration. The time to act is now.
Mike Umonnan Esq.
Legal Practitioner Lagos.