INEC’s Declaration of Osun Election as Inconclusive: On Whose and What Authority?
INEC’s Declaration of Osun Election as Inconclusive: On Whose and What Authority? On Saturday, the 22nd Of September, 2018, the people went out en masse to decide via their votes, who will pilot the affairs of their State for the next four years. After collation of results from the 30 LGA’s that make up Osun State, the Independent National Electoral Commission (INEC) through the s This paper examines the basis, legality or otherwise of the INEC’s declaration of the said election as inconclusive. In doing so, the provisions of the law that regulates the conduct of elections in Nigeria, are considered, to wit: The Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended), the Electoral Act 2010 (EA) and the INEC Approved Guideline and Regulations for the Conduct of 2015 General Elections.
Legislation
Section 69 of the EA provides that: “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 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”.
Sections 133 and 134 of the CFRN relate to the election into the office of the President. Hence, we are concerned with Section 179 CFRN that borders on the election into the office of a Governor of a State. Section 179 CFRN provides as follows:
A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election
(a) he has a majority of YES votes over NO votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations.
(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) In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be -
(a) the candidate who secured the highest number of votes cast at the election; and
(b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the State, so however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate.
(4) In default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if
(a) he has a majority of the votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State.
(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for another election between the two candidates to which that sub- paragraph relates and a candidate at such election shall be deemed to have been duly elected to the office of governor of a State if he has a majority of the votes cast at the election.
Inherent from the wordings of Section 69 EA, is that in order to ascertain a winner from any Governorship election, whether or not contested, the result shall be ascertained by counting the votes cast for each candidate in such election, but this is, however, subject to the provisions of Section 179 CFRN.
A simple analysis of Section 179 (2) CFRN which is germane to our discourse, shows that for a winner to emerge in a gubernatorial election, such winner aside from pulling the highest number of votes cast in the election, he or she needs to score 1⁄4 of all the votes cast in at least 2/3 of all the Local Government Areas (LGA) in that State. By the 1st Schedule to the CFRN, Osun State has 30 LGAs and 2/3 of 30 is 20. Hence, for a winner to emerge in its gubernatorial election, such winner aside securing the highest number of votes cast in such election, must also secure 1⁄4 of all the votes cast in at least 20 LGA’s of Osun State.
PDP had a total of 254,698 votes while APC had a total of 245,345 votes. PDP having secured the highest number of votes cast in the election, satisfied the requirement of Section 179(2)(a) CFRN. It also not in doubt that, the candidate of PDP also secured 1⁄4 of the total votes cast in 20 LGAs. One would have thought that, having met the requirements of Section 179(2) CFRN, the candidate of PDP would have, without more, be declared the winner of the election, but unfortunately that was not the case.
Why then was Election Declared Inconclusive?
INEC declared the election inconclusive on the ground that, the margin between the two leading candidates is lower than the number of registered voters in the polling units where elections were cancelled or not held. According to a Press Release by INEC dated Sunday, 23rd September, 2018, signed by Prince Solomon Adedeji Soyebi, Chairman, Information & Voter Education Committee, the total number of registered voters of the polling units in the area where election was cancelled or did not hold is 3,498 registered voters while the margin between the two leading candidates is 353. Hence, its inability to make a return!
What was INEC’s Fiat?
INEC relied on Regulation 44 (n) of the Approved Guidelines and Regulations for the Conduct of 2015 General Elections, a regulation made pursuant to Section 153 of Electoral Act. The said Regulation 44 (n) provides as follows:
“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 was 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 EC 8D and subsequently recorded into form EC 8E for Declaration and Return.”
How Founded is INEC’s Declaration?
Section 153 EA 2010, upon which Approved Guidelines and Regulations for the Conduct of 2015 General Elections was made, empowers INEC to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the EA. The said Section 153 provides thus:
”The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof.”
It is crystal clear from the provisions of Section 153 EA above, that the purpose of any guideline or regulation made pursuant to this section, is to give effect to the provisions of EA, and not to add or infer that which was never provided for in the EA.
The provision of the EA, on what a candidate in an election must satisfy to emerge as winner, is direct, express and unequivocal, to the effect that such candidate must satisfy the conditions stipulated under Section 179 (2) CFRN –
(2010) LPELR-4145(CA). At the risk of repetition, the only condition such candidate must satisfy, is to secure the highest number of votes cast, and to secure not less than one-quarter of all the votes cast in each of at least two-thirds of all the LGAs in the State. Nothing more! Nothing Less!!
The Constitution is our supreme law, and where it is clear and unambiguous on an issue, it must be the only provision to resort to. See the cases of (2016) 17 NWLR Pt. 1541 at 294 para D; (1980) LPELR-2956(SC);
In interpreting the sections of the Constitution or the Electoral Act, words used in the must be given their ordinary, natural and grammatical meaning, expect when doing so will result in absurdity. See the Supreme Court case of
(1961) 2 SCNLR 53. No such absurdity will arise in applying the ordinary, natural and grammatical meaning of Section 179(2) CFRN to Osun State gubernatorial election. What then, was the need for the declaration of the said election, as inconclusive?
Reliance on Regulation 44 (n) of the Approved Guidelines and Regulations for the Conduct of 2015 General Elections by INEC to declare the Osun State Gubernatorial Election as inconclusive, is to introduce a new element into the unambiguous provisions of Section 69 EA and Section 179 CFRN. The Constitution never envisaged any other conditions, aside those ones provided in Section 179 CFRN, for governorship candidates in an election. If it had, it would have expressly provided for same.
The clear provisions of the Constitution or an Act of the National Assembly cannot be derogated upon, or a new element introduced into same by a mere regulation or guideline. To do so, will be tantamount to repealing or amending the provisions of the Constitution or an Act, by mere guideline or regulation, a practice which is unknown under our legal system, and which is untenable in law. The Approved Guidelines and Regulations for the Conduct of 2015 General Elections, a regulation made pursuant to Section 153 EA, is inconsistent with the provisions of Section 179 CFRN, and to the extent of such inconsistency, should be declared null and void. See Section 1(3) CFRN.
More worrisome about the position taken by INEC in the Osun gubernatorial election, is when one considers the decision of the Court of Appeal Enugu Divison in Appeal no. CA/E/ EPT/ 52/2015 –
& Anor v. Oni & Ors v Idowu Conclusion Fayemi F.R.N v Nwodo Nafiu Rabiu v Kano State Onashile Hon. Helen Nwobasi v Hon. Sylvester Ogbaga & Ors
where the court held
as follows:
“There are no provisions of the Electoral Act, enabling or requiring the returning officer to declare the election inconclusive, because the number of the margin of the 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 election to any elective office, is to count the votes and declare elected the candidate with the highest number of votes.“
Inherent in the above decision of the Court of Appeal, is the fact that INEC guidelines cannot be elevated above the clear provisions of the CFRN and EA.
The declaration of Osun State gubernatorial election as inconclusive is ultra vires the power of INEC in the face of the clear provisions of sections 179 CFRN and 69 EA.