Conflict of Law created by Osun Rerun and the 1999 Constitution
The 2015 INEC Guidelines, in pages 22 to 23 of Paragraph 4, Section N issued pursuant to Section 153 of the Electoral Act, 2010 as amended, that empowers INEC to declare any election inconclusive, where the margin of victory is less than the numbers of cancelled votes.
The above subsidiary legislation, summarily created the present conflict of law, that now exists between the Electoral Act and the 1999 Constitution of the Federal Republic of Nigeria (CFRN), and for which the word "INCONCLUSIVE" by whatever nature as interpreted under Electoral Act, is to manipulate under the pretence of claim to a different invention of what is already prescribed in the requirement for a second election under the provisions of Section 179(3) of the CFRN.
The invention by that subsidiary legislation, of what is already in existence in the CFRN under the requirement for a second election, is what is being made in total denial of another, of a winner and loser on grounds of "inconclusiveness" of what is rebutted on grounds of illegality, unconstitutionality, null, void and "CONCLUSIVE" nature of the position of the CFRN by reasons as follows: 1. Section 1(2) of the CFRN 1999: 2. Section 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; and
(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.
3. Section 179(3) In default of a candidate duly elected in accordance with Section 179(2) ... there shall be a second election ....
4. On the authority and interpretation of Section 179(2) of the 1999 Constitution by the Court of Appeal in the case of FAYEMI & ANOR v ONI & ORS, (2010) LPELR-4145.
The Resolve Under Conflict of Law
According to the 1999 Constitution of the Federal Republic of Nigeria:
"Section 1(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
With particular regard to a rerun or second election therefore, the 2015 INEC Guidelines, pages 22 – 23, Paragraph 4, Section N issued pursuant to Section 153 of the Electoral Act, 2010 (as amended), which empowers INEC to declare any election inconclusive where the margin of victory is less than the numbers of cancelled votes, is in conflict with Section 179(3) and of the CFRN over a second election which states:
"In default of a candidate duly elected in accordance with Section 179(2) ... there shall be a second election ...."
Therefore, the conflict of law created under the 2015 Electoral Act, by reason of its own invention, insertion and inconclusive nature of what is made conclusive, is what is causing problems on grounds of Sections 1(2), 179(2) and (3) of the CFRN and on the authority of Fayemi & Anor v Oni & Ors (Supra) that ought to prevail.
Save and except in the situation where a section of the constitution is repealed or amended, to pave the way for a subsidiary legislation by the National Assembly, then Section 179(2) and (3) of CFRN, will continue to be the grundnorm, forming the jurisprudence and basis for holding a rerun or second election in Nigeria, and from where other subsidiary legislations derive their own authority, because the position of law has not changed from the fact that, where their is a conflict between a subsidiary and main legislation, the position of the main legislation is to be established over and above that of the subsidiary.
Dr Kayode Ajulo, Legal Practitioner, Abuja
“SAVE AND EXCEPT IN THE SITUATION WHERE A SECTION OF THE CONSTITUTION IS REPEALED OR AMENDED, TO PAVE THE WAY FOR A SUBSIDIARY LEGISLATION BY THE NATIONAL ASSEMBLY, THEN SECTION 179(2) AND (3) OF CFRN, WILL CONTINUE TO BE THE GRUNDNORM, FORMING THE JURISPRUDENCE AND BASIS FOR HOLDING A RERUN OR SECOND ELECTION IN NIGERIA....”