INEC wrong on inconclusive elections | Nairalaw

By Yesufu

The last polls witnessed the frightening routinization of
inconclusive elections on a scale that has evidently become a
threat to the electoral process and the Fourth Republic. If nothing
is done to halt the abominable trend, especially in view of the
arbitrary and whimsical decision by the electoral body to resume
the collation of the governorship election result in Bauchi State
previously declared inconclusive, democracy could be scuppered. In
the following piece, Mr Olarinde Yesufu, a legal expert, draws
attention to the unconstitutionality of inconclusive elections as
interpreted and applied by INEC. Palladium donates his space today
to allow a consideration of this weighty and urgent subject.

ON March 9, 2019, the Independent National Electoral Commission
(INEC) conducted governorship elections in 29 states. At the end of
the exercise, elections into six of the states were declared
inconclusive, while that of Rivers State was suspended at the point
of collation of results. The basis for INEC’s declaration of the
elections as inconclusive was that the number of cancelled votes
exceeded the margin of win between the two leading candidates in
each of the states. The affected states are: Adamawa, Bauchi,
Benue, Kano, Plateau and Sokoto. According to reports, in Adamawa
State, Umaru Fintiri (PDP) scored 367,471 votes as against Jubrila
Bindow (APC) 334,995 votes, with a margin of 32,476 votes and
cancelled votes of 40,988. In Bauchi State, Bala Mohammed (PDP)
scored 469,512 votes while Mohammed Abubakar ( APC) scored 465,453
votes. Some 45,312 votes were cancelled, leaving a margin of 4,059
votes. In Benue State, Samuel Ortom (PDP) scored 410,576 votes
while Emmanuel Jime (APC) scored 329,022. The margin of win was
stated as 81,554 votes while 121,019 votes were cancelled. In Kano
State, Abba Yusuf (PDP) polled 1,014,474 votes while Abdullahi
Ganduje (APC) scored 987,819 votes. The margin between the two
candidates was 26,655 while the cancelled votes were 128,572. In
Plateau State, Simon Lalong of APC took 583,255 votes, while
Jeremiah Useni (PDP) scored 538,326 votes. The margin between them
was 44,929 votes while cancelled votes numbered 49,377. In Sokoto
State, Aminu Tambuwa (PDP) scored 489,558 votes while his
runner-up, Aliyu Ahmed (APC), won 486,145. There was a margin of
3,413 votes while 75,403 votes were cancelled.

Basically, elections are meant to be concluded. Having just one
inconclusive election is disturbing enough, let alone six
inconclusive elections. There must be something fundamentally
wrong, outrageously awkward and indefensible in a system that would
return six inconclusive elections in one fell swoop! It simply
defines a mischief or gross incompetence on the part of the
electoral body charged with the responsibility of conducting such
elections. This must not be allowed to continue.

The concepts of “inconclusive election” and “the margin of win
between two leading candidates” are two lexicons that the current
INEC, which is headed by Mahmood Yakubu, a professor of political
history and international studies, has foisted on our electoral
system. Regrettably, it is steadily becoming the culture and
pattern of our elections. Indeed, there has never been any major
election conducted by this current electoral body that has not been
stymied by inconclusiveness. Never in the electoral history of this
country have we had it so bad.

The history of inconclusive elections can be traced to the
controversial event that occurred in Kogi State on 21st November,
2015, when the election, clearly won by the late Prince Abubakar
Audu, but who died before the official announcement of his victory,
was declared inconclusive. The late Prince Audu of APC had won
240,867 votes while Idris Wada of the PDP scored 199,514 votes.
There was a margin of win of 41,353 votes between them. Analysts
knew that the whole idea of inconclusiveness of the election in
Kogi State was a political contrivance of the ruling party and
probably the presidency, dutifully executed by INEC to pave way for
an anointed stranger to the ticket, Yahaya Bello. Mr Bello has gone
on to become a political tragedy to the state. Little did Nigerians
know then that inconclusiveness of elections was going to be
institutionalised as INEC’s directive principle and policy.

Two weeks after the Kogi election, Bayelsa’s governorship
election was held and was equally declared inconclusive. A return
could not be made because, according to INEC, there was a margin of
win of 33,154 votes between Seriake Dickson who contested on the
platform of PDP and Timipre Sylva of APC. It is also on record that
the Osun State governorship election was declared inconclusive. The
PDP candidate, Ademola Adeleke, had polled 254,698 votes to defeat
the APC’s Gboyega Oyetola who polled 254,345 votes. Some 3498 votes
were cancelled. The fundamental question that arises here is
whether INEC is telling the whole world that an election cannot be
won by just one vote in a democratic setting. How then did we come
about this idea of ‘margin of votes between two leading
candidates’, that we can no longer conclude our elections?

In the application of this self-imposed and strange principle of
“margin of votes”, INEC has been found to be as insincere as it is
inconsistent. INEC applies the principle, usually, to tilt the
pendulum of victory in an election in favour of APC or favoured
candidate. Whenever APC is to be at the receiving end, INEC usually
fails to apply the principle. For instance, in the bye-election to
fill the vacant seat of Lokoja/Kogi Federal Constituency last year,
triggered by the death of Hon. Buba Jibrin, Haruna Isah was
declared winner having polled 26,860 votes as against Engr. Bashir
Abubakar of PDP, who scored 14,845 votes. The margin of win was
6,900 votes. The election was marred with violence such that 19,960
votes were cancelled. INEC did not declare the election
inconclusive, but proceeded to declare APC’s candidate winner. That
is the level of arbitrariness and selectiveness of INEC in the
application of the unknown principle.

Consider also the election for the Abia North senatorial
district which, by INEC standard, should have been declared
inconclusive. But on Thursday, Orji Uzor Kalu, a former governor of
Abia State, was among the about 100 senators-elect who received
their certificates of return from INEC in Abuja. He had been
returned as elected after polling 31,201 votes for the APC to beat
incumbent PDP senator, Mao Ohuabunwa who polled 20,801. Some 38,526
votes were cancelled, which is much larger than the margin of win
of 10,400 votes. INEC refused to declare the Abia North senatorial
election as inconclusive.

It is expedient to mention here that Hon. James Abiodun Faleke,
running mate to Prince Audu in the Kogi State governorship
election, vigorously contested INEC’s declaration of
inconclusiveness of the election to the Supreme Court. Sadly, the
Supreme Court of Nigeria, now psychologically battered and humbled,
wrongly, in my humble view, embraced such an unconstitutional and
undemocratic concept of inconclusiveness. In that case, the Supreme
Court (Per Kekere-Ekun, JSC), curiously, held that “…the 1st
respondent (i.e. INEC) was correct when it declared the election of
21/11/15 inconclusive on the ground that the margin of win between
the two fore-runners at the election was less than the total number
of registered voters in 91 affected polling units where elections
were cancelled”. (words in bracket mine). Faleke’s case has now
become an albatross on the neck of our electoral jurisprudence
unless the Supreme Court reverses itself. I sincerely hope the apex
court will summon the courage to do so when the opportunity avails
it.

Both INEC and the Supreme Court must be wrong on this contrived
and crooked principle of “margin of win” in a democratic system
that is unknown to our law. Whether or not a contestant has won an
election is a constitutional matter. And, the Constitution of the
Federal Republic of Nigeria, the supreme law of the land, is clear
and unambiguous about this. The Constitution specifies only two
conditions to be fulfilled under section 179(2). It states:

“A candidate for an election to the office of a governor of a
state shall be deemed to have been duly elected to such office
where, there been two or more candidates-

He has the highest number of votes cast at the election;

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.”

It is incompetent for INEC to impose additional burden on a
winner beyond what the constitution has stipulated. Indeed, there
is something monstrous, oppressive, incongruous, fraudulent,
whimsical and undemocratic in allowing INEC to deviate from
constitutional provisions and proceed to “legislate” by imposing
additional conditions on winners at elections. INEC, surely, has no
such legislative powers and must not be allowed to have its ways in
the interest of our nascent democracy.

The additional burden imposed by INEC is traceable to
Regulations and Guidelines for the Conduct of Elections. Regulation
34 (e) provides:

“Where the margin of lead between the two leading candidates is
not in excess of total number of registered voters of the Polling
Units where election were not held or were cancelled in line with
Section 26 & 53 of the Electoral Act, the returning officer
shall decline to make a return until polls have taken place in the
affected units and the results collated into form EC 8E for
Declaration and Return.”

There is a reference to Sections 26 and 53 of the Electoral Act
in the Guideline quoted above. Section 26(1) is about postponement
of election. It states, inter alia that where a date has been
approved for the holding of an election and there is reason to
believe that a serious breach of the peace is likely to occur, if
the election is proceeded with on that day, or it is impossible to
conduct the election as a result of natural disasters or other
emergencies, the Commission may postpone the election and appoint
another date for the holding of the postponed election. The Act
adds that such reason for the postponement must be found to be
cogent and verifiable. With due respect, if INEC had been sincere,
honest and even-handed in the March 2019 election in Rivers State,
for instance, it would have proceeded to apply the provision of
this section. Few days to the election in Rivers State, it was
clear to any objective observer that the tension in the state was
palpable so much so that a breach of the peace was likely to occur.
INEC ignored all the warning signs and proceeded with the election
only for it to suspend same mid-way.

Section 53(2) of the Electoral Act is all about over-voting. It
provides:

“Where the vote cast at an election in any polling unit exceeded
the number of voters in that polling unit, the result of the
election in the 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 the polling unit may
affect the overall result in the Constituency.”

It is clear from the above provision of the law that a call for
a re-run election can only happen when the result of voided votes
in a polling unit affect the overall result of the constituency
which, in this case is the whole of the state. In addressing the
issue, INEC has mischievously changed the word “Polling unit” to
“Polling units” in Regulation 34(e). By this, it imposes on itself,
the duty of collating cancelled votes in a constituency to
determine margins of win. No law permits INEC to collate cancelled
votes after an election.

Margin of win has never constituted any impediment to electoral
victory of a winner in Nigeria until the current dispensation of
Prof. Yakubu’s INEC. In Agagu v. Mimiko, INEC declared the
appellant winner of the governorship election in Ondo State with
349,288 votes whilst the respondent garnered 226,021 votes. At the
trial, the actual votes were found to be 313,355 and 195,030
respectively. Thus, 248,724 were cancelled. In view of the fact
that Section 179(2) of the Constitution had been satisfied, the
Court of Appeal of old, not the current one that has become deeply
and thoroughly controversial and unpredictable, affirmed the
respondent’s return as governor.

In INEC v. Oshiomhole, INEC had earlier declared 329,740 for PDP
and 197, 472 for Action Congress (AC) i.e. for Mr Oshiomhole. In
setting aside INEC’s decision and declaring Oshiomhole as winner,
the Court of Appeal of old cancelled 200,723 of votes scored by PDP
and 30, 895 of votes scored by AC (cancelling a total of 231,618
votes). The court did not find any reason to call for a rerun
because the petitioner satisfied the requirements of Section 179
(2) (a) & (b).

In Aregbesola v. Oyinlola, INEC had earlier declared 426,669
votes for Oyinlola, and 240, 722 for Aregbesola. The margin of win
was 185,947 votes. The Court however nullified votes in 10 disputed
local government areas when 41, 923 votes were cast for Aregbesola
and 253,789 votes were cast for Oyinlola. Total cancelled votes
were 298,712. In declaring the petitioner as winner of the
election, the Court of Appeal of old referred to Section 179 (2) of
the Constitution and held that the appellant satisfied the
requirements of the law. Governor Fayemi of Ekiti State was also a
beneficiary of cancelled votes without a re-run.

From the foregoing, it is clear that in the entire circumstances
of the current events, Section 179 of the Constitution is the
applicable provision and not INEC Guidelines or Manual. Again,
unfortunately, in Faleke’s case, and for some inexplicable reasons,
the Supreme Court elevated INEC Guidelines and Manual above the
Constitution. That is the grave damage the Supreme Court has done
to our jurisprudence by its politically motivated decision in
Faleke’s case. Surreptitiously, Yakubu’s INEC has re-written our
Constitution, and for want of integrity and foresight, our courts,
from the lowest tribunal to the highest court, have not been
vigilant enough to appreciate it.

At the risk of restating the obvious, I am impelled to re-affirm
the sacrosanct legal principle and truism that where the
Constitution sets the conditions for doing a thing, no legislation
or regulation or guideline or manual can alter them in any way,
directly or indirectly. Regulation 34 (e) of the INEC Guidelines
for elections is unconstitutional and should be so declared. Our
constitution must remain inviolate.

Mr Yesufu is a legal practitioner