INEC as the Willing Undertaker of Nigeria’s Democracy
The announcement by INEC, that the Osun State election conducted on Saturday, 22nd September, 2018, was inconclusive and the fixing of 27th of September for a so-called rerun, raised eyebrows, mine inclusive. I knew that it amounted to a dangerous subversion and travesty of the electoral process, a blow to our hard earned constitutional democracy, and an ominous sign of the farce to expect in 2019-subversion of the people's will.
History of INEC INEC (since 1998), like its precursors, Electoral Commission of Nigeria (ECN,1960), Federal Electoral Commission (FEDECO, 1978), National Electoral Commission (NECON,1995), has facilitated the stunted growth of Nigeria's democracy. From Chief Who Esua (1964-1966), Chief Michael Ani (1979), Justice Ovie Whiskey (1983), New Awa (1987-1989), Prof Humphrey Nwosu (1989-1993), Okon Uya and Sumner DagogoJack (1994-1998), Justice Ephraim Akpata (1998-1999), Abel Guobadia (2000-2005), Professor Maurice Iwu (2005-2010) and Professor Attahiru Jega (2010-2015): and now Professor Yakubu Mahmood (2015 till date), the story is ugly, the spectre hideous.
INEC has earned for itself, the inglorious reputation of holding inconclusive elections (Kogi, Bayelsa, et al); and working in cahoots with the ruling APC party, always eager to do its dirty electoral bidding, to commit daylight robbery of votes. This, they have just done to Adeleke's votes, to defeat the will and legitimate franchise of the good people of Osun state. I wholly condemn this ludicrous mockery of our electoral process, and constitutionalism. There is no basis whatsoever, whether in law, constitutionalism, or morality, to have declared the election inconclusive. The Constitution of Nigeria and the Electoral Act ONLY recognise LAWFUL AND VALID VOTES in declaring a candidate winner of an election. This presupposes that, some votes would be unlawful and invalid. Consequently, where votes are cancelled or invalidated for any reason howsoever, including for being invalid and unlawful, such votes are immediately and automatically cancelled, deducted and consigned to the dustbin of history. In any case, it was not wholesale results in the election, that were voided and cancelled. Only votes that INEC had adjudged illegitimate due to irregularities, were voided and cancelled. This cancellation and voidance of illegitimate votes affected all the political parties, not just APC and PDP, but especially Omisore's SDP, whose two strongest fortes in Ife axis were badly affected. Such voided votes are ignored and unreckoned with, for they are a ‘non sequitur’. They are as dead as a dodo. Having failed to viciously intimidate and rig the elections as they did in Ekiti State, due to the people's courageous resistance, the APC has now used its electoral arm, INEC, to do the unthinkable, that which is clearly illegal, unconstitutional, immoral and a brazen assault on our sensibilities and constitutional democracy.
Constitutional Provisions and Case Law Section 179(2)(a)(b) of the 1999 Constitution (the grundnorm and supreme law of the land), is crystal clear and unambiguous, that Adeleke and PDP have won and met the electoral requirements to be formally declared winner of the Osun state election. It provides:
"A candidate for an election to the office of a 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; and
(b) he has not less than one-quarter of all the votes cast in each of least two-thirds of all the local government areas in the state".
Adeleke, had already satisfied this provision. The words of the Constitution, are very clear and admit of no unambiguity. In statutory interpretation, words are given their plain and ordinary meaning. See the cases of Amasike v The Registrar General, CAC & Anor (2010) LPELR 456 (SC) and Kayode v State (2008) WRN (Vol. 2) 102 at 106, (CA). Furthermore, the principle of law is “expression unius est exclusion alterius” (the express mention of one thing, is the exclusion of the other. See the cases of Adetayo & Ors v Ademola & Ors (2010) LPELR 155 (SC), per Ogbuagu, JSC; FRN v Osahon & Ors (2006) 5 NWLR (Pt 973) 361; All Progressive Grand Alliance (APGA) v Sen Christiana N.D. Anyanwu & 2 ors (2014) 20/2013 (SC); CBN v Hydro Air PTY Ltd (2014) 16 NWLR (Pt1434) 482; NEPA v Adegbenro (2002) 18 NWLR (Pt 798) 97.
The Court of Appeal, Enugu Division, in Appeal No. CA/E/EPT/ 52/2015: Hon. Helen Nwobasi v Hon. Sylvester Ogbaga & 2 ors (since reported), held, with uncommon lucidity, thus:
"There is no provision of the Electoral Act, enabling or requiring the returning officer to declare the election inconclusive because the margin of victory between the two leading candidates is less than the total number of registered voters in the polling units whose elections were not held or cancelled, or for any reason. By virtue of Section 69 of the Electoral Act 2010 as amended, the only power a returning officer has in an election to any elective office, is to count the votes and declare elected the candidate with the highest number of votes".
In Osunbor v Oshiomhole (2007) 18 NWLR (part 1065) 32, cancelled votes had been counted and added to PDP/ Osunbor's scores. The courts, up to the Supreme Court, held that when votes are cancelled, they are not reckoned with in determining the outcome of such an election. The courts thereafter, deducted the invalidated votes and this gave victory to Oshiomhole in the hotly contested election. To avoid disenfranchisement of eligible voters, only votes in areas where election did not hold at all, are considered for the purpose of calculating total votes.
Some people may argue, ignorantly, in my humble opinion, that Section 69 of the Electoral Act or other guidelines issued by INEC, justify this electoral perversion. I will quickly remind such people that, those provisions or guidelines are subject to the overriding authority of the provisions of the Nigerian Constitution, which is supreme. The Constitution is the Kabiyesi, Eze and Emir, in the hierarchy of Nigerian laws. All others, are like Bales and Chiefs, that must bow before this king. The provisions of the Constitution therefore, clearly override the provisions of the Electoral Act and any guidelines issued by INEC, by virtue of Sections 1(1) and 1(3) of the 1999 Constitution. They are consequently null and void, to the extent of the inconsistency. See the celebrated case of Nyesom Wike v Dakuku Peterside (2016) 7 NWLR (part 1512) 574. It is clear to me, that INEC 's decision is more of a political hubris, than one anchored on solid laws, whether the Constitution, or Electoral Act.
Collation of all the results in Osun, had already been done by INEC in accordance with Section 27(1)(a)(v)) and (c) of the Electoral Act, 2010, as altered. The State collation was completed under Section 27(d), and the results ought to have declared Adeleke the winner under Section 27(f), having polled 256,219 majority votes to beat APC's candidate who scored 255,309 votes. The provisions of Section 69 of the Electoral Act (which in any case, is inferior to Section 179(2) of the Constitution, were thus amply satisfied.
INEC’s Constitutional Profanity The constitutional, legal and moral profanity that INEC had thus, engaged in, by ordering a repeat election was to invalidate the people's valid and legitimate votes, that no longer mattered or counted. The Returning Officer's duty was simply to announce the winner, having declared all the results, and not to usurp the role of the Election Petition Tribunal, by altering the texture and tenor of the outcome, through its order for a rerun. What happened to the legitimate votes of the other candidates who would not participate in the rerun, and their electors' will, one may ask?
By the way, why did INEC change the goal posts and revised history, because APC was roundly defeated in the election? Recall that during the Kogi state by election of August, 2018, over 19,000 votes were cancelled and voided. This tremendously outstripped the 12,000 votes difference between the two leading candidates. Yet, in Osun state, only 3,498 votes were cancelled in Orolu, Ife South, Ife North and Osogbo LGAs. How could that affected the humongous votes garnered by Adeleke? I had advised PDP and Adeleke to immediately head for the courts, to seek an order of mandamus, compelling INEC to declare him winner. He had already won his people's hearts with his qualitative performance in the Senate, and with the mesmerising dance steps of a teenager!
The Farcical Rerun I had predicted that, the rerun would be a dress rehearsal for the farce of elections that Nigerians should expect in 2019. In declaring the 22nd September election inconclusive, INEC had argued that irregularities were recorded in the affected areas. But, the 27th September rerun covering a mere 7 polling units in just 4 LGAs, has been infamously adjudged as the worst election in the history of Nigeria. Local and International observers of the Baba Sala's ‘Awada Kerikeri’ histrionics of an "election", including US, UK, EU, Nigeria Civil Society Situation Room, NUJ, CDD, adjudged the election fundamentally flawed and marred. They reported monumental incidents of violence, sporadic gun shooting, harassment, interference, intimidation and selective denial of access to polling venues of voters of opposing political parties, journalists and observers, by political thugs, hoodlums and compromised security forces, failure of PVCs, open bribery of voters with money, etc. Indeed, Situation Room observed that, incidents that led to cancelling the original elections were repeated, albeit on a higher scale. So, what has changed? Why did INEC not also use this unassailable evidence, to also cancel this scam of a so-called rerun election, which made its cancelled predecessor look like one conducted by angels and saints? Why the double standards, inconsistencies and glaring contradictions?
INEC, I beg of you, don't kill and become the undertaker of our hard earned constitutional democracy, on the altar of rabid corruption and official compromise by the APC ruling party.
“THE CONSTITUTION IS THE KABIYESI, EZE AND EMIR, IN THE HIERARCHY OF NIGERIAN LAWS. ALL OTHERS, ARE LIKE BALES AND CHIEFS, THAT MUST BOW BEFORE THIS KING”