INEC’s inconclusive governorship elections in subversion of the constitution and voters’ will

Opinion

By Ubiwe Eriye Esq

Critics and opposition political parties have opined that the recent elections conducted by the Independent National Electoral Commission (INEC) constitute the worst in the country’s democratic experience. This acclaimed notoriety of the election umpire, though common place, may indeed be an understatement.

In fact, just few days back, same INEC was adjudged by an election tribunal to have rigged Osun State governorship election in favour of the incumbent government and ruling APC. The tribunal subsequently nullified the election of the ruling party’s governorship candidate and declared opposition governorship candidate as duly elected.

Interestingly, INEC asserted no defense to allegations of aiding election rigging and tampering with recorded election results. The tribunal equally nullified and declared as illegal the supplementary election that was predicated on the unlawful cancellation of voting at 7 polling units by the Returning Officer, in usurpation of of the duty and role of the polling officer at the polling unit and purportedly staged to undo the victory of the opposition PDP governorship candidate who scored the highest number of votes at the first ballot.

In the same vein and likely fate, INEC’s March 9, 2019 declaration of the governorship  elections  as inconclusive and subsequent scheduling of supplementary  election re-runs  in Kano, Sokoto, Plateau, Benue, Bauchi and Adamawa when candidates who scored the highest number of votes at the first ballot ought to have been declared winners and returned as duly elected, will ultimately be reversed by the election tribunals and courts.  

This  optimism of a future legal decision is premised on the assurance that INEC’s inconclusive election declarations and supplementary elections are unsupported by the Constitution or the Electoral Act of 2010. The 1999 Constitution remains the supreme law of the land, and pertinently provides in Section 179  clear and strict limitations on re-runs of governorship elections as follows:

Section 179 (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 (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……..  

(4) In default of a candidate duly elected under sub section (2) of this section, INEC shall within 7 days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate shall be deemed to have  been duly elected to the office of the 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 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  elected under subsection(4) of this Section, the INEC 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. 

So in plain and unambiguous language, the Constitution strictly defines and limits the types of stalemate in governorship election that would warrant a rerun or to decide the victor. Nothing, expressly or by implication, under sec 179 or elsewhere in the Constitution empowers INEC to stalemate or declare a governorship election ‘Inconclusive’ for the purpose of staging an election rerun vide supplementary elections.

Equally, Section 69 of the Electoral Act provides: “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(Secs 133and 134 are similar provisions for the election of a President) and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer. Sec 70 provides further:       “Where two or more candidates poll equal number of votes being the highest in an election, the Returning officer shall not return any of the candidates and a fresh election shall be held for the candidates on a date to be determined  by the Commission. “Again, save in Sec 53 of Act where INEC is given a discretional power to reconduct an election in polling units where there are over voting (voting exceeding number of voters in register), INEC is accorded no express or implied power to declare an election inconclusive or order an election rerun on the esoteric ground that the margin of victory or  number of votes recorded in the winner’s favour is less than total number of cancelled votes. This margin of victory and number of cancelled votes abracadabra is alien to our Constitution and the Electoral Act of 2010. Where or how did this INEC come up with this noxious and constitution subversive formulae? INEC can’t claim its guidelines as source for this contrived scheme designed ostensibly to manipulate election outcomes. Interestingly, this heinous ploy was applied by INEC in the blighted Osun governorship election in 2018 where INEC Returning Officer who did not observe or count votes cast at polling units unilaterally cancelled the election in 7 polling units in a bid to create the manipulative basis to declare a concluded election inconclusive. Guidelines are mere regulations devised by the Commission to regulate the conduct of its officials and to ensure their compliance with provisions of the Constitution and Electoral Act whilst organizing, undertaking and supervising elections. More importantly they are inferior and are subservient to the Constitution and Electoral Act and must be struck down by the Court as illegal to the extent that they are inconsistent with the Constitution and the Electoral Act. Paragraph 15 of the Third Schedule to the 1999 Constitution as amended gives power to INEC to organize, undertake and supervise elections. This provision is plain and unambiguous and must be accorded it’s ordinary meaning. It simply authorizes INEC within Constitutional limitations to prepare a register of voters to vote on dates designated by INEC after which their votes are counted with candidate polling highest number of votes declared winner, forthwith in the different categories of elections specified. The Constitution and the Electoral Act envisage a prompt declaration of election results, after deduction of all invalid or cancelled votes at polling units throughout the country on election day. This envisaged promptness of declaration of election winner bars a retroactive resurrection of cancelled votes to upset an election where all indices to return a winner under sec 179 of the Constitution has been satisfied. In Osunbor  v Oshiomhole 18 NWLR p32, the Court of Appeal held that cancelled votes could not be resurrected by INEC for any purpose since the act of cancelling or invalidating the votes preceeded the counting and declaration of a winner of election. Such cancelled or voided votes are non- sequitur, useless in determining the winner of an election, when for the most part all contestants are impacted by voided or cancelled votes. Only lawful and valid votes are relevant to determine candidate that scores the highest number of votes. The voting and announcement of election results after counting of valid votes at polling units is the most determinative event in the election process. The collation or summation of all results from the polling units is secondary and routine, and could not alter the election results outcome  declared and recorded at the polling units in presence of the voters, election umpire and candidates represented by their agents. The will of the voters expressed through their sacred suffrage within the polling units is sacrosanct and can’t be altered or thwarted by INEC or the election umpire. All elections are presumed valid until upturned by tribunal or Court: It is beyond dispute that by our laws there is a presumption that an election is valid until the courts/tribunals declare it a nullity – Per W S Nkanu Onnoghhen JSC delivering judgement in Nyako and Ors v INEC(2011) SC.141. Neither Paragraph 15 of the Third Schedule of the Constitution nor Sec 179 of same Constitution permits INEC to perform a post mortem of cancelled votes  and use same as basis to subvert the Constitution and deprive a candidate with highest number of casted votes  an election victory or declare such election inconclusive when the clear parameters of determining the winner as stipulated by the Constitution and Electoral Act are clear. It must be noted that the Electoral Act 2010 is  a subsidiary legislation controlled by the Constitution and must be read side-by-side with the 1999 Constitution. See Atiku v INEC (2007) SC.69.  It is a settled principle of interpretation that a provision of the Constitution or Statute must not be interpreted in isolation but rather in the context of the Constitution or Statute as a whole. See Buhari & Anor  v Obasanjo (2005) 13 NWLR(Pt. 941). But where the words are plain and unambiguous, no interpretation is required, the words must be given their natural and ordinary meaning: Atiku v INEC(supra). Although the powers conferred on INEC under paragraph 15 of the Third Schedule of the 1999 Constitution would ordinarily be defined by the election tribunal and Court using the plain and ordinary language embodied in the paragraph of the Third Schedule, exclusive of any implied power to INEC to declare a concluded election inconclusive on the spurious contention by INEC that leading candidate’s margin of winning votes is less than the number of cancelled votes. The election tribunals and courts would be guided, no doubt, by the principles of interpretation stated in Arch. Bishop Okojie v AG Lagos(1981) 2 NCLR 337 at 340-350 and which again was adopted by  W S Nkanu Onnoghen JSC in Nyako & Ors v INEC(supra and which reads: “When interpreting the Constitution the court must bear in mind that it is dealing with an instrument which controls and regulates the powers  and  functions of government, controls the rights and obligations of citizens and controls the peace and order of the society upon which the Constitution is supposed to operate ……. A Constitution must be considered in such a way that it protects what it sets out to protect and guides what it sets out to guide. By its very nature and by necessity a Constitution document must be interpreted broadly in order not to defeat the clear intention of the framers–Justice W S Nkanu Onnoghen in INEC v Nyako & Ors.

In summary, INEC’s basis for declaring concluded governorship elections (concluded at polling units) of March 9, 2019 inconclusive is strange to the 1999 Constitution and Electoral Act, 2010. The supplementary governorship elections that flowed from INEC’s illegal declarations of elections as inconclusive will ultimately be declared unlawful and nullified in tandem with contrarian protective laws embodied in our Constitution and Electoral Act .

  • Eriye, Ph.D Law, wrote from Lagos

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