The first Osun State governorship election took place on the 22nd of September 2018. Based on the results collated by the Returning Officer, Senator Ademola Adeleke of the People’s Democratic Party (PDP) garnered 254,698 votes, while Alhaji Gboyega Oyetola of the All Progressives Congress (APC) won 254, 345 votes. The margin between the two leading candidates is lower than the number of registered voters in the affected areas and extant law as well as INEC Guidelines and Regulations provide that when this happens, a declaration may not be made.
So far, this development has raised a lot of questions on the legality of INEC’s actions and opinions vary on this. The Election Network spoke to Ike Obiora, a legal practitioner in Lagos, who stated that: “INEC doesn’t have the legal backing to make such [a] call. The provisions of sections 69 of the Electoral Act 2010 and 179 of the 1999 Constitution are clear on what a candidate to a governorship election must satisfy to be declared a winner. Section 69 Electoral Act provides that in an election to the office of a governor or president, whether or not contested and in any contested election to any elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions 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.”
Section 179 (2) provides what a candidate (as in Osun State) must satisfy to emerge winner:
- He must secure the highest number of votes cast in the election.
- He must secure 1/4 of the total votes cast in 2/3 of the LGA state.
The PDP satisfied this provision. However, INEC relied on Regulation 44 (n) of the Approved Guidelines and Regulations for the Conduct of General Election 2015 to declare the election inconclusive.
The regulation in question was made pursuant to section 153 of the Electoral Act and provides that where the margin between the two leading candidates is less than the total registered voters in areas where election was not held, a rerun will be ordered.
Following the declaration of the elections as inconclusive, the Independent National Electoral Commission (INEC) has slated the rerun election for Thursday the 27th of September 2018.
Mr. Obiora argued that his position, as founded in law, is that a provision of a guideline cannot override the provisions of the Constitution and where there’s a conflict between the provisions of the Constitution and any other law or enactment, such law to the level of its inconsistency with the Constitution is null and void according to section 1 (3) of the Constitution of the Federal Republic of Nigeria.
On the other hand, a legal practitioner in Abuja known as Ifeanyi Gerald argues that because the cancelled votes were higher than the margin used by the PDP to win on Saturday, it behoves on the INEC to call for a run off in the affected areas. “That’s trite in law. It’s been used in many places. What the PDP needs to do, is to ascertain if the figures credited to the APC are accurate. If not, it’s enough grounds for an election petition.”
However, the Former National secretary of the Nigeria Bar Association, Chief Philip Umeh, said the PDP ought have been declared the winner, even as he advised the party to prepare for the re-run election and should they lose, head to the tribunal.
“PDP, from the result, won by a slight majority and the law is very clear that that is required to win in an election, more so when they have covered all the local governments. The law didn’t say that you ought to get a particular majority beyond what has been recorded and there are certain judicial authorities from the Supreme Court that ruled even when votes are canceled that they no longer count.
“The INEC guideline cannot supersede the decision of the Supreme Court of Nigeria; they should seek proper legal advice. It is unfortunate now because having taken a decision, it cannot be easy for INEC to overrule itself and I think that if I were the party, it is now a matter for the court and what they should do is to prepare for a re-run and if by chance PDP does not win, I think INEC has given the party a ground for petition in tribunal. They can go to tribunal and ask it to hold that they won the election.”
Despite the provisions of the law that is clear on this as argued by Ike Obiora and Chief Philip Umeh, the INEC went ahead with the electoral act to make their pronouncement, declare the election inconclusive and call for a rerun. This development will require the People’s Democratic Party to approach the court, so that the court can interpret the spirit and letters of the law. This issue has already sparked a nationwide constitutional debate and hopefully the court will make a final decision on this as it will help to sustain Nigeria’s fledgling democracy and clear any misconception on the issue.
Summarily, as Osun State heads to the polls again today, it is important to watch for constitutional vagueness that may enable a result as declared last weekend and work to clarify them in order to prevent future confusions on the provisions of the law surrounding elections.
