Osun Gubernatorial Election: Untangling the Law

On Sunday, 23rd September 2018, the Returning Officer (RO) appointed by the Independent National Electoral Commission (INEC) for the 22nd September, 2018 Osun State gubernatorial election, Professor J.A. Fuwape, refused to make a return of any candidate, as the validly elected Governor of Osun State. According to INEC, the refusal to make a return, was because the margin of win between the two leading candidates at the election, was less than the number of registered voters in 7 polling units across 4 Local Government Areas (LGAs) in Osun State, where the elections either did not hold, or was cancelled because of card reader failure, over-voting and/or disruptions. The RO decided that it was impossible to make a return of a winner, until a supplementary election was conducted in the polling units affected.

Expectedly, INEC’s decision was greeted with mixed reactions, by politicians and citizens within and outside Osun State. The two leading political parties, the Peoples Democratic Party (PDP) and the All Progressives Congress (APC), expressed contrasting views on the legality and constitutionality of the decision reached by INEC.

As it is typical of a situation like this, emotions and

“PROCEEDING FROM THIS BASIS, IT WOULD BE CONTRARY TO THE SPIRIT AND TENOR OF OUR LAWS, TO DECIDE THE OUTCOME OF AN ELECTION, AT THE STAGE WHEN POLLING IS STILL IN PROGRESS, AND ALL VOTERS HAVE NOT BEEN PRESENTED WITH REASONABLE OPPORTUNITY TO CAST THEIR VOTE”

are usually elevated above constructive unbiased reasoning is usually a last resort opportunity for objective debate, is usually the whirlpool of politics and politicking. legal practitioners and participants in the arena, the decision by INEC, again, brings the need to carefully scrutinise this latest against the parameters set by the various governing our electoral process, especially the stitution and the Electoral Act. This is important, because this is not the first time that INEC declare an election inconclusive. Notably, November 2015, it declared the election to the Governor of Kogi State inconclusive, for the reason it has adduced in Osun State. No are ever alike. Hence, this is an attempt the seeming conundrum created by this onclusive election’, in light of extant laws governing electoral process. decision raises some pertinent issues of wit; how is a person elected to the office of under the Constitution? Did a winner emerge State as contemplated by the Constitution? an election concluded? propose to address the decision of INEC, based posers, which I hope will do justice to the arising, and assist the reader make up his mind correctness or otherwise of INEC’s decision. I that, it is not as straight forward as it might be at first.

How is a person elected to the office of Governor under the Constitution?

Section 179 of the Constitution, deals squarely with election to the office of Governor of a State and by Section 179(2)(a) and (b), a person is elected as Governor if he scores the highest number of votes cast at the election, and in addition, he obtains one-quarter of the votes cast in two-thirds all the local government areas in that State. This is all that the Constitution says, about how a person is to emerge as elected to the office of Governor. No more, no less. The meaning of this to Osun State, is that the candidate who scored the highest vote in Osun State and who received one-quarter of the votes cast in two-thirds of all the local government areas in Osun State, is the person who should be returned as Governor of the State.

Was Section 179(2)(a) and (b) applicable to the election in Osun State as at Saturday 22nd September, 2018?

This is central to this discourse; for if Section 179(2) (a) and (b) was applicable, then going by the election results announced by INEC on Sunday, September 23 in Osun State, Senator Adeleke had the highest votes and in respect of Section 179(2)(b), it is taken as a given he was able to garner one-quarter of the votes cast in two-thirds (20 LGAs) of the 30 local government areas in Osun State.

If this is taken as the case (as it appears to be at first), then INEC’s decision that the election was inconclusive for the reasons given, would have breached the Constitution and the decision of the Supreme Court (SC) in INEC v Musa (2003) 3 NWLR (Pt. 806) 72 at 157 by purporting to issue directives in its Manual (Chapter 3, paragraph 3.11, step 14 of the Manual for Election Officials) which supplement and effectively nullify Section 179(2)(a) and (b) of the Constitution, without any specific constitutional permission in that wise. In addition, if this view is preferred, INEC would be undercutting the fundamental principle of substantial inclusion of the electorate, on which the electoral system of democracies all over the world is based. One would easily agree that

the system is tilted towards inclusion, as far as is possible. On the other hand, if Section 179(2)(a) and (b) was not applicable as at Saturday, INEC’s refusal to make a return cannot be faulted.

In order to determine whether or not Section 179(2) (a) and (b) of the Constitution was applicable on Saturday, it is necessary to determine whether the election had been concluded on Saturday. In other words, when is an election concluded? First, it must be mentioned that an election is a process and not an event, and that the process spans a couple of days does not change this fact. The implication of this is that, until the process of election is completed, the application of Section 179(2)(a) and (b) does not even arise. In effect, only a completed (concluded) election can trigger Section 179(2)(a) and (b) and it is INEC that can determine when this is so. This much was affirmed by the SC in Faleke v INEC (2016) 18 NWLR (Pt. 1543) 61 at 162. This position naturally leads to the question; when is an election concluded?

When is the process of election concluded?

In my opinion, an election is only concluded in respective polling units in a constituency, when all eligible voters have had reasonable opportunity to cast their votes. Thus, to the extent that a segment

of the voters in Osun State may have not been given this opportunity, it cannot be validly said that the election had been concluded.

For instance, according to INEC’s press release on the election, no voting took place in one polling unit in Osogbo LGA. This polling unit alone had 884 voters. What this means, is that 884 voters in these units had not been given the opportunity to cast their votes, and their votes alone exceeds the margin of win by a mile. Although, in my view, the decision of the SC in Faleke v INEC (supra)) produced unjust consequences, same provides justification for this position, because the SC decided that until the supplementary election in that case was held (to allow a segment of the electorate cast their vote), the main election was inchoate.

The argument that the conditions set out in Section 179 were met on Saturday, is not without its own complications. First, it would mean that once these conditions are purportedly met (and how this can be ascertained in the absence of declaration to that effect by INEC, is itself another problem), INEC must terminate any further process. This would entrench football’s harsh Golden

Goal rule in our electoral system, with the implication that that a supplementary election or even further collation of results in the main election (no matter how pivotal), would be pointless since the threshold of Section 179 would have been crossed. It is doubtful that, this was the intent of the framers of the Constitution.

In this regard, I must emphasise that, the conditions in Section 179(2)(a) and (b), especially (b), are predicated on receiving a fraction of all the votes cast and not some. The votes recorded on Saturday were not all the votes but some. This provides further justification for the position that Section 179(2)(a) and (b) only applies to a concluded election, and not otherwise.

It is safe to say that, one of the philosophical pillars of our electoral process, at least in theory, is that of inclusion of all eligible voters. Proceeding from this basis, it would be contrary to the spirit and tenor of our laws, to decide the outcome of an election, at the stage when polling is still in progress, and all voters have not been presented with reasonable opportunity to cast their vote. Although, the law does not envisage that every voter must vote, but the intention is to capture as many voters as possible. Therefore, the law must be interpreted to produce this outcome, and not otherwise.

This is not the end, even as we gear up for the 2019 general elections, more controversial situations are sure to arise.