What the constitution says is that a candidate for the election of governorship seat with the highest votes should be declared winner in such election.
Kunle Owolabi
The Governorship poll in Osun had come and gone. The election was won and lost. The winner was gallant in winning. Whether the loser would be honourable in losing is not yet certain giving the peculiar nature of our politics where a loser always alleges foul play and scream blue murder.
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All Progressive Congress (APC) candidate won the election, defeating its closest rival from the Peoples Democratic Party (PDP). The candidate of APC, Alhaji Gboyega Oyetola, polled 255,505 votes to defeat his main rival, Senator Ademola Adeleke, who scored 255,023 votes. The victory did not however come easy.
The victory was long in coming as APC was almost denied its victory. The whole state had to wait with baited breath for a re-run election in seven wards across four local government areas when in fact the candidate of the APC ought to have been declared winner! Yes, that is the actual position instead of the re-run as decided by the Independent National Electoral Commission (INEC).
Now, with the benefit of hindsight, it is safe to conclude that the election was won at the first ballot by APC. Then why the re-run in the first place? From the legal point of view, what the constitution says is that a candidate for the election of governorship seat with the highest votes (what is called a simple majority) should be declared winner in such election.
Section 179 (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) says: “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; 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 areas in the State.”
Looking at the letters of the above section of the constitution, the APC candidate fulfilled the criteria required to have been declared the winner at the first round of the ballot.
Rather, acting on a misplaced inquisition, INEC subtracted more than one thousand votes firm the APC votes. The reason given was that the total figure recorded for the APC in one of the local governments was inflated by a thousand votes. When in fact the figure contained in the Form EC8A was the figure the party acted on in calculating its votes.
The said Form EC8 was properly filled and figures recorded accordingly by the presiding officer. Not only that, all the party agents in the affected local government signed the result before it was brought to the State Collation Centre.
This singular act of irregularity was rather callous and unjustified. It denied the APC its victory. The victory songs and dances across the states had to stop abruptly! All the same, even though painful, APC agreed with the INEC decision because it believes in strict adherence to democratic ethos, election being one of such ethos. It was these huge votes that was removed from the APC tally bag that gave the PDP opportunity of shooting forward by 353 votes.
Suddenly, PDP started churning out propaganda with the effect that it won the election and so should be declared winner by the electoral umpire. The hunter thus became the hunted in the jungle of political buccaneers. There were lots of pressures and muffled threat that INEC had better declare its party, PDP, the winner of the election or heave would be let loose.
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Wisdom however prevailed when INEC declared the election inconclusive, hinging its decision in the provisions of Electoral Act 2010 (as amended). Yet, the undemocratic forces screamed blue murder. The question then is: Was INEC right constitutionally in declaring a re-run? The answer couldn’t have been anything than affirmative. A glance at the Electoral Act and Manual for Electoral Office clarify this and vindicated INEC in arriving at the decision. Section 53 subsections(2), (3), and (4) state as follows:
“(2) Where the votes cast at an election in any polling unit exceed the number of registered voters in that polling unit, the result of the election for that polling unit shall be declared void by the Commission and another election may be conducted at a date to be fixed by the Commission where the result at that polling unit may affect the overall result in the Constituency.
“(3) Where an election is nullified in accordance with subsection (2) of this section, there shall be no return for the election until another poll has taken place in the affected area.
“(4) Notwithstanding the provisions of subsections (2) and (3) of this section the Commission may, if satisfied that the result of the election will not substantially be affected by voting in the area where the election is cancelled, direct that a return of the election be made.” In the case above, there is no way the removal of more than one thousand votes and the cancellation and voiding of over 3,486 votes would not have a substantial effect in the winner of such election.
The provision in the Manual: 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.”
This provision explains the justification of INEC’s decision to order for a rerun. It is even more necessary to point out here that this is not the first time INEC has taken this statutory path and had judicial approval even at the highest court of the land. In the case of Faleke vs INEC and others, 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) 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.”
Thus, the argument that resort to its manual in the circumstances by INEC amounted to a flagrant disregard of the supremacy of the constitutional provisions as contained in Section 179(2) is invalid. Rather a combined reading of the section of the constitution, Section 53 of the Electoral Law and the INEC Manual gives better interpretation of the above scenario since the other two laws are not in anyway inconsistent with the constitution which is the grundnorm.
They only complement the constitution. Now to some precedents, in 2015, the late Abubakar Audu of Kogi State was leading by 240,867 votes to PDP 199,514 votes, the margin of 41,353 favoured APC but it was declared inconclusive.
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Owolabi, an attorney at law, writes from Lagos