Osun Election: Senior Lawyers Differ on INEC’s Decision

Following the declaration of the Governorship election held in Osun State as inconclusive by INEC, members of the legal community have expressed divergent views about the legality or otherwise of the decision. Senior Lawyers; Chief Mike Ozekhome SAN, Jubrin Okutepa SAN and Ebun-Olu Adegboruwa expressed their views on the election thus:

Chief Mike Ozekhome SAN who accused INEC of being compromised noted that the declaration 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

In his words:

The announcement by INEC,that the Osun state election conducted on Saturday,22nd September 2018,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.

TheReturning 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 voided. This 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.

However, Mr. Jubrin Okutepa SAN disagreed with Chief  Ozekhome SAN’s submission noting that INEC has acted within the ambit of the law.

Below is his views:

As the legality of the action of INEC to declare the result of governorship election in Osun State inconclusive is raging on and generating legal controversies, it is necessary I point out here that this is not the first time INEC has done so and had judicial approval even at the highest court of the land. I was deeply involved in the case of Hon James Abiodun Faleke vs INEC and others. In that case Chief Wole Olanipekun SAN led me and other eminent senior counsel to argue 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. We argued 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. There was no necessity we argued for the re-run in the polling units whose results or elections were cancelled. We further made the point that since 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 trial tribunal, the court of Appeal and the Supreme court did not agree with us. This is what the Supreme court said as quoted by my learned friend Sylvester Udemezue Esq in a response to Chief Mike Ozekhome SAN position which contend otherwise.

The Supreme Court said this:

“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 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 in the conduct of a free, fair and hitch free election.” (Emphasis mine) Having discovered electoral malpractices in 91 polling units in the State, it was proper for the 1st respondent 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).

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.” (Emphasis mine)

The provision is clear and straightforward and did not require a foray into any other provisions in the Manual for it to be effected. 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 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”

I think as lawyers our duty is to educate the people and avoid commentary that tend to hit up the polity. Unless we approach the Supreme court to over rule itself, what INEC did in Osun State is within its powers to do.

I therefore suggest that politicians should get set to go and do the rescheduled re-run in those polling units on 27th September 2018 to determine the winner of the election.

On his part, Ebun-Olu Adegboruwa believes the turn out of event during the polls is a clear indication that the leaders must be accountable to those they lead. He sued for peace and urged both INEC and the President to ensure that the election is free and fair.

He said:

The Osun Governorship election is a loud statement from the masses of our people on the fate of our politicians, to say: Enough Is Enough!

So, in any State where the Governor is owing workers salaries, or has performed below expectation, the people should reject him for second term or for Senate and also reject his appointed or anointed successor, whether in PDP or APC.