By Tobi Soniyi
Legal analysts said yesterday that not only did the Independent Electoral Commission (INEC) misconceived its powers under the Electoral Act 2010 as amended in failing to make a return in last Saturday’s Osun State governorship election, they also accused INEC of double standards in its application of its guidelines.
They cited INEC’s decisions in the Kogi State governorship election in 2015 and more recently, in the Bauchi South senatorial district by-election held on August 11, 2018, where the electoral body cancelled elections in several units due to varied reasons, including over voting, ballot snatching and violence and still went ahead to make returns.
Specifically, said the analysts, in the December 5, 2015 governorship supplementary election in Kogi State between the PDP’s Captain Idris Wada and APC’s Yahaya Bello, the Returning Officer, Prof. Immanuel Kucha, declared Bello the winner of the election despite cancelling election in several units, including Etiaja junction; Anyingba ward, Dekina LGA; Olla ward in Ijumu LGA; Akpanyo and Ayah wards in Ibaji LGA; and Kupa North-east, due to various reasons, including violence, snatching of election materials and over-voting.
The analysts also cited the August 11 Bauchi South senatorial district by-election where INEC made return despite the cancellation of election in multiple units in several of the seven local governments in the district.
For instance, they pointed out, results of election in 13 units of Toro Local Government Area were cancelled; Speaker Yakubu Dogara’s local government had 10,727 votes lost to cancellations in 17 units; while 15,017 votes were cancelled Bauchi Local Government Area due to over voting.
“The question, therefore, is why is the same INEC, revalidating cancelled votes and election in Osun State?” asked one of the legal minds.
Contributing to the conversation on INEC’s action in Osun State, a legal luminary, Dr. West Idahosa, also said INEC was wrong.
He said, “INEC is probably relying on its 2015 guidelines, which appears contrary to constitutional provisions on this matter. It may make sense if the votes involved are in relation to centers where elections were not held due to no fault of the voters.
”However, where elections were held and votes are cancelled, they remain cancelled. They ought not to form part of the counting process and should not influence the outcome of the elections for any reason whatsoever.
”In Oshiomhole vs Osunbor & Others, cancelled votes were added to PDP’s scores. All the courts held that cancelled votes had no role to play in an election. The votes were deducted and Oshiomhole was declared winner of the election. Why is INEC giving so much priority to cancelled votes on this occasion? I can’t fathom it. This may be more political than legal. My view.”
A legal scholar and former chairman of the governing council of the National Human Rights Commission, Dr. Chidi Odinkalu, said the guidelines, which INEC relied on in declaring the election inconclusive directly contradicted section 179 (2) of the constitution.
Under Nigerian legal system, any rule of law that is inconsistent with the provisions of the constitution is null and void.
Odinkalu said, “INEC has lots of powers but that doesn’t include amending Constitution in Osun State.”
He argued that the provisions of the constitutions were clear and straightforward.
Section 179 provides, “(1) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election- (a) he has a majority of YES votes over NO votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations.
(2) 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.”
Since a clear winner has emerged in accordance with the provisions cited above, subsection three quoted below would not apply.
Now subsection (3) states, “In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be ¬
(a) the candidate who secured the highest number of votes cast at the election; and (b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the State, so however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate.
(4) In default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if –
(a) he has a majority of the votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the state.
