The Peoples Democratic Party (PDP) is threatening to take the Independent National Electoral Commission (INEC) to court for declaring the Osun State governorship election inconclusive. It believes the election has been be won and lost. But to some senior lawyers, the PDP may be embarking on a judicial expedition. The Senior Advocates of Nigeria (SANs) say the Supreme Court will have to reverse itself for the party to win in court, report ADEBISI ONANUGA, JOSEPH JIBUEZE and FRIDAY OTABOR.
THE discourse triggered by the Independent National Electoral Commission’s (INEC)’s declaration of last Saturday’s Osun State governorship election as inconclusive will take a long while to end.
There have been arguments on whether the electoral umpire erred by not declaring the final results of the keenly-contested poll in which the leading contenders ran neck-to-neck at the close of the first ballot.
INEC ‘s Returning Officer (RO) for the election Prof. Joseph Fuwape declared the election inconclusive after Ademola Adeleke of the Peoples Democratic Party (PDP) candidate polled 254,698 to lead Gboyega Oyetola of the APC of the All Progressives Congress (APC) with 353 votes. Oyetola scored 254,345.
He announced that there would be a rerun tomorrow in Orolu (due to disruptions), Ife South (due to malfunction of Electronic Card Readers), Ife North (due to over-voting) and Osogbo (where no voting took place).
Supporters of the PDP candidate have been crying blue murder. They have been expressed the view that INEC ought to have returned Adeleke as winner having polled more votes than Oyetola.
Relying on the electoral guidelines to back the inconclusive declaration, Prof Fuwape, the Vice Chancellor of the Federal University of Technology Akure (FUTA), said the margin between the two leading contestants must be in excess of the total registered voters where an election was cancelled.
After the final tally of the figures at the INEC state secretariat in Osogbo in the early hours of Sunday, the CRO explained that the margin between the candidate of the APC and that of the PDP was 353 as against the 3,498 registered voters in the contentious seven polling units spread across the four local government areas of Orolu, Osogbo, Ife South and Ife North.
The 3,498 votes were voided in Orolu Local Government Area (three units with 947 votes); Ife South Local Government Area (two units with 1, 314 votes), Ife North Local Government Area (one unit with 353 votes) and Osogbo Local Government Area (one unit with 884 votes).
But some senior lawyers have been bringing their experiences to bear on the debate. They believe INEC was on track by declaring the election inconclusive.
Those who bared their minds are Senior Advocates of Nigeria (SANs). They include: Jibrin Okutepa, Chief Emeka Ngige and Ahmed Raji. A law teacher, Wahab Shittu, also said the INEC’s decision was in order. Another SAN, Mike Ozekhome, however, differed.
Ngige said INEC has the power to order a rerun, adding that had it gone ahead to declare a winner, the tribunal could have nullified the election on the basis that some voters were disenfranchised.
He said it would have been wrong to declare a winner when voting did not take place in some places.
Ngige said: “So, INEC did the right thing. That was what they did in Anambra in 2013. INEC conducted a rerun in areas where election did not take place. That time, nobody found anything wrong with the Returning Officer answering a phone call. He needed to consult, because it’s a team work. That’s what the Osun Returning Officer also did.
“You can see that the PDP is preparing for the rerun but is sending a dummy to their opponents that they’re aggrieved and are going to court. They know in their heart of hearts that what INEC did is the right thing. If they win the rerun, all the complaints will vanish, and they will start praising INEC.”
The SAN added that apart from Anambra, precedents were set in Imo and Kogi and states.
Recalling the rerun in Imo, he said: “There was a rerun in one local government where election was disrupted by violence. Even though Rochas Okorocha had gotten the required number, INEC refused to make a declaration in favour of Okorocha.
“Okorocha went to the Federal High Court to stop INEC from conducting the rerun, but the court refused to grant any injunction. The election took place and Okorocha won,” Ngige said.
Raji urged parties to take a critical look at the Supreme Court decision in the case of Faleke vs INEC
He said: “Since the PDP has said it is going to court, the best thing is to wait for the court to decide. That is the golden rule.
“However, if they have not gone to court, and it’s still a moot point, I think the case of Faleke vs INEC should be looked into properly, where the Supreme Court would seem to have endorsed the doctrine of inconclusive election in Nigeria.”
Okutepa pointed out that it was not the first time INEC would declare an election inconclusive. Besides, he said the electoral umpire had judicial approval from the Supreme Court.
His words: “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, the 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 rerun 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. Unless we approach the Supreme Court to overrule 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 rerun in those polling units to determine the winner of the election,” Okutepa said.
Shittu agreed with Okutepa, saying the declaration of Osun election inconclusive was not new.
He said: “There is precedence established in the case of Abiodun Faleke Vs INEC. The attempt by the Chief Wole Olanipekun to fault lNEC’s position declaring the Kogi election inconclusive was rejected by the appellate court.
“My position is that the decision in Abiodun Faleke v INEC upholding the right of lNEC to declare elections inconclusive relying on constitutional provisions, the provisions of Electoral Act, guidelines of lNEC inclusive of its manual as quoted in the Faleke’s case remain a good law.
“If lNEC is vested with powers to conduct elections, it should retain incidental powers to follow constitutional provisions and its own established guidelines.”
But, Chief Mike Ozekhome (SAN) disagreed. He said INEC’s announcement that the election was inconclusive “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.”
Citing several judicial authorities, including Section 179(2)(a)(b) of the 1999 Constitution, Osunbor vs Oshiomhole (2007) 18 NWLR (part 1065) 32, and Nyesom Wike v Dakuku Petersude (2016) 7 NWLR (part 1512) 574, Ozekhome said that INEC ‘s decision “is more of a political hubris than one anchored on solid laws, whether the Constitution, or Electoral Act.”
He added: “The Returning 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.
“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 local government areas. How can that affect the humongous votes garnered 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.”
President of the Committee for Defence of Human Rights (CDHR), Malachy Ugwummadu, who led over 50 observers to monitor the the Osun election, believed the PDP has a right to challenge the declaration.
He said: “On the one side is the issue of the superiority of the constitution over and above other legislations and regulations.
“Where, therefore, INEC guidelines authorise the commission to declare inconclusive an election which otherwise ought to be a concluded election under Section 179 (2) A & B of the 1999 Constitution, that would amount to a direct breach of Section 1 (3) of the same Constitution.
“In any case, Section 69 of the Electoral Act 2010 is simple, straight forward and suffers no ambivalence on the issue on declaration of results in an election to the office of either the president or governor once a candidate receives the highest number of votes subject to sections 133, 134 and 179 of the Constitution.
“The other side of the debate is premised on the fact that INEC has a corresponding power pursuant to Section 153 (2) of the Constitution to issue guidelines for elections. But such guidelines certainly cannot override the express provisions of the Constitution.
“In the circumstance, the PDP reserves the right to contest the propriety or otherwise of what has just happened.
“Further participation in the rerun election will have its own implication having taken steps to invalidate the position of INEC.”
Former APC chair John Odigie Oyegun said the INEC was in order to declare election inconclusive, explaining that the commission acted in line with the Electoral Act.
Oyegun told reporters in Benin that the federal government should be commended for allowing democracy to thrive.
He said Osun people freely expressed their will and ensured that the votes count.
Odigie-Oyegun urged Osun voters to reward the good work of the APC tomorrow for ensuring free, fair and credible election in their state.