2018/09/24

The Proposed Rerun Election in Osun State and the Law Preamble


 It is now official that INEC has taken a decision to conduct a rerun election in some polling units in Osun State before declaring the 2018 Gubernatorial Election conclusive. From the press release signed by Solomon Soyebi, National Commissioner and Chairman, Information and Voter Education
Committee of INEC, the reason for the decision is given as follows: ”Based on the result by the Returning Officer, the margin between the two leading candidates is 353 which is lower than the number of registered voters in the affected areas. Extant law and INEC Guidelines and Regulations provide that where such a situation occurs, a declaration may not be made.” (See page 2, paragraph 2 of INEC’s letter of Sunday 23rd September, 2018). It is important to note that the said letter has not cited any section or provision of the ‘extant law and INEC Guidelines and Regulations’ to enable readers be on the same page with the Commission on the issue.
 However, in announcing the decision to declare the election inconclusive, Prof. Joseph Adeola Fuwape, Returning Officer and Vice Chancellor of the Federal University of Technology, Akure was more specific when he said that the decision is made pursuant to INEC’s Guidelines for Election. He said that according to the Guidelines, where the margin of victory at an election is less than the number of votes cancelled in the same election, a rerun must be conducted in the affected polling units to determine the actual winner of the election. The Professor did not also mention the exact section of the Guidelines but, his submission is clear and we can work with it for purpose of legal exposition on the issue at hand.
 What Does the Constitution say on When A Candidate is Deemed to Have been Duly Elected? Election into any public office in Nigeria is an issue of law and the most superior law in the Federal Republic of Nigeria today is the 1999 Constitution. Section 179 (2) provides what is required to declare a person winner in a gubernatorial election. It provides thus
”179(2) A candidate for an election to the office of Governor of a State shall be deemedto have been duly elected where, there being two or more candidates –
 (a) he has the highest number of votes castat 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 Area in the State.” What the law contemplates here is simple majority of votes cast. That means, even a hundred votes or less will be sufficient for one to emerge as winner of a gubernatorial election.
 The Legal Question The legal question here is, has the Governorship candidate of the PDP met the above conditions of the law? INEC has affirmed that after a thorough counting of the votes cast, the result shows that while the APC Candidate polled 254,345 votes, the PDP Candidate polled 254,698 votes leaving a difference or victory margin of 353 votes. By this confirmation Adeleke of the PDP has won that election with 353 votes. He has also won in not less than two-thirds majority of all the 30 Local Government Areas of the State. Going by the provision of section 179(2) of the 1999 Constitution, Adeleke of the PDP has emerged the winner of the 2018 Gubernatorial Election conducted in Osun State. There is nothing in that section to accommodate the excuse given by INEC. But the Constitution Recognizes a Rerun in the following Circumstances By section 179(3) of the same Constitution, a rerun only becomes necessary where there is no candidate with the highest number of votes in the election. For instance if the candidate of the APC and that of the PDP had equal number of votes, the Constitution allows INEC to conduct a rerun within 7 days from the announcement of the result. Also, where the candidate with the highest number of votes does not have at least one-quarter of all the votes cast in each of at least two-thirds of all the LGAs in the State, a rerun becomes inevitable. These are not the reasons given by INEC for the proposed rerun election. The implication of this is that the reasons given by INEC are not within the contemplation of the Constitution. When the Provisions of a Guideline is in Conflict with the Provisions of the Constitution, what Happens Clearly, the provision of the INEC Guidelines and Regulation which says that where the margin of victory at an election is less than the number of votes cancelled in the same election, a rerun must be conducted in the affected polling units to determine the eventual winner of the election, is in conflict with the provisions of section 179(2) of the 1999 Constitution on when a candidate is deemed to have emerged the winner in a gubernatorial election.
The Constitution does not have any such provision or reason as given by INEC. By section 1(1) of the Constitution it is provided as follows: ”This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”INEC is included in the phrase ”all authorities and persons’‘. By section 1(3) it is provided thus: ”If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of its inconsistency be void.” By the above section on supremacy of the Constitution, the provision of the INEC Guidelines under review is null and void and have no effect whatsoever having conflicted with the clear provisions of section 179(2) of the Constitution. Does the Law Have Any Business with Cancelled Votes? The law has no business with cancelled votes. Once declared ‘cancelled’, such votes have no further business in the electoral process and cannot form the basis for the nullification of the majority of lawful votes cast to warrant a rerun. They ought not to form part of the counting process and should not in any way influence the outcome of the election.
 In the celebrated case of Adams Oshiomole v. Prof. Osunbor, cancelled votes were added to the scores of the Peoples’ Democratic Party which saw to the emergence of Prof. Osunbor as the Governor of Edo State. Adams Oshiomole challenged the action in court and it was held that cancelled votes had no role to play in the election and should not have been counted for Prof. Osunbor or any party whatsoever. The court then deducted the votes and Adams Oshimole was declared the winner. When the cancelled votes in Osun are deducted from the total number of valid votes cast, Adeleke has, by operation of law, emerged the winner of the election in issue. What INEC Should Do in the Circumstance INEC should rescind its decision on the rerun and declare Adeleke the winner of the Osun State Election in view of the fact that the reason given by the Commission is not in sync with the provisions of the Constitution.
INEC should pay attention to the language 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 …. By this phrase, a legal event has already occurred; the Constitution has already deemed Adeleke winner of the election. INEC has no further say on this than to do the needful and call off the proposed rerun.
 Ekemini Udim is a lawyer and public affairs analyst. 
ekeminiudimforjustice@gmail.com