The decision of INEC to declare the Osun State gubernatorial election as “inconclusive” has ignited a national debate from both lawyers and non-lawyers. However, since the issue is one that is centred on the law, it becomes pertinent to examine it from the premise of the relevant legal provisions.
The Law INEC Relied upon:
Article 44(n) of the INEC Guidelines and Regulations (2015) appears to be the most important starting point, because all legal arguments and counterarguments on the issue surround its applicability and constitutionality. The article provides that the State Collation/Returning Officer for the Governorship election shall:
“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 subsequently recorded … for Declaration and Return.”
According to the official statement by INEC, the margin between the leading candidates is 353, which is lower than the number of registered voters in the affected polling units. A literal application of the above article of the guideline to the instant situation supports the decision made by INEC in declaring the election inconclusive and scheduling another election in the affected polling units.
The purport of the provision is to present an equitable opportunity for the votes of citizens to actually count, and not defeat the democratic choice of the majority by cancellations, which may be due to technical, administrative or human misdoings.
It is also instructive to note that the guideline was made pursuant to the Constitution and Section 153 of the Electoral Act (2010), which empowers the commission to issue such regulations or guidelines for the purpose of giving effect to the provisions of the Act and for its effective administration.
Conflict of Article 44(n) of the INEC Regulation with Section 179(2) the Constitution?
There are counterarguments from some legal commentators that the provision of the INEC guideline is invalid because it oversteps Section 179(2) of the Constitution, which provides that:
“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.”
The advocates of the mentioned counterargument hold the view that only the above constitutional provision – and nothing else – should be relied upon by INEC in declaring the winner of the election. Therefore, they opine that Senator Adeleke should have been declared the winner without recourse to an “unconstitutional” regulation that limits the application of the supreme law.
It is a trite law that when the provision of any law or regulation is inconsistent with an express provision of the Constitution, such law or regulation shall be invalid to the extent of its inconsistency. Thus, the relevant question that begs for an answer is whether Article 44(n) of the above-mentioned INEC guideline of 2015 actually contravenes the provision of the constitution. Without hesitation, the position this article canvasses is that there is no contradiction or conflict between both provisions, for the explanations to be given hereunder.
Firstly, it must be understood that the objectives of Section 179(2) of the constitution on the one hand and Article 44(n) of the INEC Guideline on the other, are absolutely unrelated – and by that virtue cannot be said to be in conflict. While the constitutional provision strictly relates and applies to when the voting process has been duly concluded, the latter is only to ameliorate technical or administrative defects in the conduct of an election before its eventual conclusion.
The stage of the election is a crucial distinguishing factor – because while Section 179(2) of the constitution can only come to play for a concluded election without glitches (such as cancellation), the INEC guidelines is only invoked to ensure an equitable computation of votes in a defective process while the election still remains inconclusive. Thus, legally speaking, the Osun State gubernatorial election is still yet to be concluded until the voting and final computation of results from the affected polling units.
Another main distinguisher in the application of the provisions is that: in the case of an inconclusive election pursuant to the INEC guidelines, the existing election results still count in addition to the result of the supplementary election. Whereas a “re-run” in line with the constitutional provision is an entirely fresh election between the two leading candidates, and the result of the first election is immaterial.
In the most recent governorship election in Kogi State, a supplementary election was held in 91 polling units across 18 local government areas, because the margin of win between PDP and APC was less than the number of registered voters in the 91 polling units where the election was cancelled. This same situation had earlier ensued in the governorship elections in Taraba and Abia states in 2015.
In the Abia case, the Court of Appeal at first ruled against a similar supplementary election declared by INEC, on the ground that INEC has no such power. Upon reaching the Supreme Court, the decision of the lower appellate court was overruled and the supplementary election was upheld in favour of PDP’s Okezie Ikpeazu.
Relying on all the above, the decision by INEC to declare the election inconclusive and schedule a date for a supplementary election for the given reason is in conformity with the law as it currently stands, as well as the most recent interpretation endorsed by the Supreme Court. Although, election petitions have been consistently held to be Sui generis (Latin for: “of its own kind”) by Nigerian Courts; and that has been used in many cases as an excuse to deviate from established precedents. Nonetheless, until the Courts have another opportunity to pronounce on a similar case, INEC’s decision remains the position of the law today.