Osun Election Rerun: Two “Valid” Views for and Against

Politics




HELP,HELP,A COMPROMISED INEC IS MURDERING NIGERIA’S HARD EARNED DEMOCRACY.
BY CHIEF MIKE OZEKHOME,SAN,OFR,FCIArb,Ph.D
The announcement by INEC,that the Osun state election conducted on Saturday,22nd September2018,was inconclusive and the fixing of 27th of September for a so called rerun,is 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.INEC has earned for itself the inglorious reputation of holding inconclusive elections (Kogi,Bayelsa,et al);and working in cahoot 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 effected all the political parties,not just APC and PDP,but especially Omisore’s SDP,whose two strongest fortes in Ife axis were badly effected.Such voided votes are ignored and unreckoned with,for they are a non sequitur.They are as dead as 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.
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 winners 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 satisfied this provision.
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() 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 Petersude (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.
The constitutional,legal and moral profanity that INEC has thus engaged by ordering a repeat election is to invalidate the people’s valid and legitimate votes,in strange preference for legally voided illegitimate 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 happens to the legitimate votes of the other candidates who will not participate in the rerun and their electors’ will,one may ask?
By the way,why is INEC changing the goal posts and revising history because APC was roundly defeated in the election? Recall that during the Kogi state bye elections of August,2018,over 19 000 votes were cancelled and voidedThis 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 can that affect the humongous votes ganered by Adeleke?
PDP and Adeleke should immediately head for the courts to seek an order of mandamus,compelling INEC to declare him winner.Alternatively, he can approach the Election Petition Tribunal with all the votes cast,urging it to declare him winner.He has won his people’s hearts with his performance in the Senate and mesmerising dance steps of a teenager. INEC,I beg of you,don’t kill our hard earned constitutional democracy on the alter of corruption and official comprise of the ruling party.

ANOTHER VIEW BY Dr Chima Amadi

It is no longer news that the Independent National Electoral Commission(INEC) declared the Osun State Governorship election inconclusive. This bold action has triggered all manners of verbal umbrage against the Umpire but notably targeted at the Head of INEC, Professor Mahmood Yakubu. Conspiracy theorists have latched upon this action to vent their anger on a man whose only “sin” was that he was appointed by the current president. But before delving into the mind-numbing logic of judging a man’s character and competence for a job based on the perception of the judge of the appointing authority, let us dispassionately examine INEC’s action and try to situate or anchor the legality or otherwise of the said action against the provisions of the statutes that undergird elections in our country.

First, the Constitution and the Electoral Act made it mandatory on INEC to conduct free, fair and credible elections. To achieve this, the voter is vital. His/her vote must count. Protecting the sanctity of the vote is crucial. The entire electoral legal framework is intended to achieve this objective. Responsibilities are assigned, processes and procedures defined and sanctions prescribed all with the intention of achieving that objective. Specifically, Section 153 of the Electoral Act 2010 (as amended) empowers the Commission, in pursuit of the provisions of the Act, to “issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof”. Accordingly, INEC has made guidelines and regulations to protect the sanctity of the vote in instances where the processes are disrupted to disenfranchise voters. It is common knowledge that politicians have hijacked ballot papers, chased away voters and disrupted processes and procedures to gain an unfair advantage. That is why INEC formulated guidelines and regulations to the effect that where voters are disenfranchised on account of someone’s disruptive action, INEC gives such voters another opportunity to vote where their number will make a difference to the outcome of the election. The Commission has been applying this regulation in several polls. So there is nothing new here. This was implemented in Governorship elections in Imo (2011 and 2015), Anambra (2013), Taraba (2015), Kogi and Bayelsa (2015) and several other polls. Let us take a look at examples of these inconclusive elections.

Case Number (1)

IMO GUBER ELECTIONS 2015

Rochas Okorocha( APC): 385,671

Emeka Ihedioha( PDP): 306,142

The margin of Victory: 79,529

Cancelled votes:144,715

From the above, it is evident that the margin of victory was lower than the cancelled votes, a number that is enough to alter the balance. The Commission under Professor Attahiru Jega did the needful and promptly declared the elections inconclusive. Take note that the PDP, the ruling party then hailed the decision and applauded the decision of the INEC, calling it a “patriotic and sound decision “. Of course, APGA kicked against it. A re-run election was scheduled which APGA won. Recall that a similar situation had happened in 2011 in the same Imo between Rochas Okorocha and Ikedi Ohakim where INEC had declared the elections inconclusive because elections did not take place in some wards.

Case Number (2)

ANAMBRA SENATORIAL ELECTION 2011

Dora Akunyili( APGA):66,273

Chris Ngige ( ACN):65,576

Margin:697

In this instance, INEC declared the elections inconclusive because elections were cancelled in some wards with a voting population that was clearly higher than the margin of victory. A re-run took place which Akunyili lost.

Case Number (3)

KOGI GUBER ELECTION 2015

Abubakar Audu( APC):240,867

Wada Idris (PDP):199,514

Margin:41,353

Cancelled votes:49,953

Again, the margin here was less than the cancellations and was rightly declared inconclusive by the Professor Mahmood Yakubu led INEC. The point to note here is that the APC was by this time the ruling party and clearly had a huge lead but Yakubu still refused to budge under pressure by the ruling party to announce it as the winner.  The PDP applauded it.

CASE NUMBER (4)

BAYELSA GUBER ELECTIONS 2015

Dickson ( PDP):105,748

Sylva ( APC):72,594

Margin:33,154

In the case of Bayelsa, a contraption of an election had taken place in Southern Ijaw which had Sylva winning the entire 120,000 votes in that area virtually, but this much-maligned Yakubu refused to accept it, declared it inconclusive and ordered a re-run because the number of registered voters were clearly more than the margin of victory. The PDP received this news well and celebrated it.

CASE NUMBER (5)

ANAMBRA GUBER ELECTION 2013

Obiano ( APGA):174,710

Tony Nwoye ( PDP):94,956

Margin:79,754

Cancelled votes:113,113

Again the Commission under Jega declared it inconclusive, and the PDP celebrated it as a bold move.

I have taken time to outline these cases to show that even where the margins were huge and when logic will suggest that the lead would be insurmountable, so long as it is mathematically possible for someone from a losing position to win an election, it was incumbent on the Umpire not to declare a winner. As regards the Osun election, the margin of victory which is about 353 is lower than the number of cancellations and could therefore not be definitive for a party to ask to be declared the winner. This position is anchored in our laws.

Where there is over voting, as it happened in one Polling Unit in Ife North, Section 53 of the Electoral Act requires the Commission to declare the result null and void, make no return on the election result and fix another date to conduct the election. This course of action is pertinent where the number of registered voters will make a difference to the outcome of the election. In Ife North, the total number of registered voters is precisely the same as the margin of lead in the election. How can INEC declare a winner under the law?

In fact, Sec. 53 (3) prohibits the Commission from declaring a winner for the election “until another poll has taken place in the affected area”.

Beyond over voting, the election was disrupted in 6 other polling units. 3 in Orolu LGA with 947 registered voters, 2 in Ife South with 1,314 voters and 1 in Osogbo with 884 voters. If you add Ife North to it, there is a total of 3,498 voters. Meanwhile, the margin of lead is 353 votes. There can be no declaration of a winner under the circumstances.INEC has fixed Thursday 27th September 2018 for the re-run in 7 Polling Units across 4 LGAs and will then proceed to make a declaration. That is what the law says. We cannot begin to cherrypick when to apply rules.

My focus is on the processes and not on parties or candidates. Votes are counting in our elections. That’s why we can a have a difference of 353 votes in a Governorship election involving 1.6m voters spread across 30 LGAs. The Commission showed no bias for the ruling party as some have alleged. Otherwise, there wouldn’t have been a margin of only 353 votes and even so in favour of the opposition candidate. My take is that the Commission is being crucified for rightly being transparent. The Commission’s various moves to carry Nigerians along and to demystify elections in Nigeria is the reason why we are here today. Put succinctly, the multiple innovations that the Commission has put in place has made it possible for citizens to become aware of the trends and voting patterns during elections.  In Osun, anyone who was interested had the results which were due to the form EC60-E that is usually pasted on the walls and that allowed the people to protect their votes. Could anyone have envisaged this in 2011? I recall an incident where the late Justice Katsina-Alu went to his community to vote. While still on the queue the Iwu led INEC had announced the result of the elections. This blatant rape of democratic tenet in that instant pissed off the late jurist.

Only a mischievous rabble-rouser will not appreciate the gains being made in our elections. Mahmood’s sin is that he accepted to serve under this president and for some, that is an unforgivable sin. But it is immaterial, Yakubu is on track and will not be distracted. Love the man or hate him, we must stand by truth and justice. Nothing less is demanded of genuine democrats.

Dr Chima Amadi is the Executive Director of the Centre for Transparency Advocacy and can be followed on Twitter on @AMADICHIMA




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