Methink, all the legal conundrum raised by Nigerians and especially those who should know, against the decision of the Independent National Electoral Commission (INEC) to declare the Osun State Governorship election inconclusive was born not out of lack of legal precedent on the matter or disagreement with the powers of INEC to so do, but for lack of trust in our public institutions.
It is for the above reasons that once news of such decisions broke, the majority of the first reactions are usually more of sentiments than law or logical reasoning.
Some people even cited the Court of Appeal decision in Oshiomole vs. INEC & Prof. Osariemen Osunbor to support their argument that INEC lacks the powers to cancel votes and declare an election inconclusive.
The fact of the matter is that the two cases are poles apart. In Oshiomole’s case, the decision of the Court of Appeal was not whether INEC has the powers to cancel votes, but whether votes once cancelled can be resurrected and added to a candidate’s votes.
The court in that instance ruled that votes once cancelled can no longer be resurrected as they remain dead. It subsequently deducted the cancelled votes added to Osunbor’s votes and declared Oshiomole the winner of that election.
But for the case of Osun, which is similar to what happened in Anambra in 2013 and more recently in Kogi 2016 after the death of the APC candidate in that election.
In the legal battle that ensued subsequently in the celebrated case of James Faleke vs. INEC, after the election was declared inconclusive by INEC. The Supreme Court had the opportunity of resolving all the issues raised therein which are similar to the issues raised in the inconclusive election of the State of Osun one way or the other.
The issues to the best of my knowledge are summarized hereunder:
The point whether INEC has the power to cancel election was answered in the affirmative by the Supreme Court in that case.
The question whether the guidelines of INEC enjoy the force of law was also answered in the affirmative by the Supreme court in the same case.
The question whether INEC can declare election inconclusive even in the face of a winner emerging or deemed to have emerged by operation of the constitution was evidently answered in the affirmative by the Supreme court in the case.
Also, the question whether it is the number on the register of voters or those who actually collected their PVCs that should be reckoned with in deciding the number of voters on a Polling Unit was also resolved by the Supreme court in favour of the number of voters on the register.
At this point, it will be instructive to give a brief background of the arguments canvassed by parties at the Supreme Court in the said case. (Hon James Abiodun Faleke vs INEC)
It was Chief Wole Olanipekun SAN (counsel to the Appellant, Hon. James Faleke) position, that the reliance by INEC on its manual for election was unconstitutional because the constitution has already set out the parameters on how and when a governor should be declared elected in Nigeria.
He argued further that as at the time INEC declared the result of Kogi State election for governorship inconclusive late Prince Abubakar Audu and Hon Faleke had won the required spread and majority of lawful votes and that there was no necessity for the re-run in the polling units whose results or elections were cancelled. (Same position being canvassed by PDP in the case the inconclusive election in Osun State)
The Learned Silk argued further, that since the election is to be done by those who have their permanent voters cards, reference to people on the register of voters was wrong because there was evidence that not all those whose names were on the voters register collected their PVCs.
The Supreme Court in disagreeing with him said thus;
“The relevance of INEC’s Manual for Electoral Officers in the proper conduct of elections was acknowledged by this Court in the case of C.P.C Vs INEC (2011) LPELR, 8257 (SC) at pages 54 & 55 paragraphs F – B per Adekeye, JSC thus:
‘By force of law, the Independent National Electoral Commission has the duty of conducting elections. Besides the constitutional provisions, it is guided by the Electoral Act 2010 (as amended) and the Election Guidelines and Manual issued for its officials in accordance with the Act. These documents embody all steps to comply with the conduct of a free, fair and hitch free election.’
Having discovered electoral malpractices in 91 polling units in the State, it was proper for the 1st respondent (INEC) to consult and apply the provisions of its Manual to determine the next course of action in the circumstances. I do not agree with Chief Olanipekun, SAN, with due respect that resort to its manual in the circumstances amounted to a flagrant disregard of the supremacy of the constitutional provisions as contained in Section 179(2) of the Constitution
Chapter 3 paragraph 3.11, step 14 of the Manual for Election Officials (updated version) at page 325 of Volume 1 of the record provides:
3.11: Final Collation and Declaration of Governorship Election Results at State Level:
The State Collation/Returning Officer for the Governorship shall:
Step 14: ‘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 were 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 EC8D and subsequently recorded into a new form EC8E for Declaration and Return.’
The provision is clear and straightforward and did not require a foray into any other provisions in the Manual for it to be affected. There is no dispute as to the fact that the margin between the votes scored by the late Prince Audu and the appellant on the one hand and Capt. Wada and Arch. Awoniyi, on the other, was 41,619, which was less than the total number of registered voters in the 91 polling units where votes were cancelled. I, therefore, agree with the court below that the 1st respondent (INEC) was correct to have declared the election inconclusive on the basis of the number of registered voters in the 91 affected polling units. Having regard to the clear provisions of the Election Manual, it would have been wrong for any electoral official to base his decision on any other consideration”
Above is a clear pronouncement of the Supreme Court in a similar situation which I think is on all fours with the scenario in Osun State or if you like the State of Osun.
My advice to PDP, therefore, is to forget about wasting money in another round of unnecessary litigation and prepare seriously for the re-run election scheduled for Thursday the 27th of September, 2018.
Liborous Oshoma Esq.
Opinion contained in this article is strictly the writer’s and not Political Stew’s.