By Kayode Ajulo
The 2015 INEC Guidelines in pages 22 to 23 of Paragraph 4, Section N issued pursuant to s.153 of the Electoral Act, 2010 as amended that empowers INEC to declare any election inconclusive where the margin of victory is less than the numbers of cancelled votes.
The above subsidiary legislation summarily created the present conflict of law that now exists between the electoral act and the Federal Republic Constitution of Nigeria (FRCN) and for which the word “Inconclusive” by whatever nature as interpreted under electoral act is to manipulate under the pretense of claim to a different invention of what is already prescribed under the requirement for a second election under the provisions of s.179(3) of the FRCN.
The invention by that subsidiary legislation of what is already in existence in the FRCN under the requirement for a second election is what is being made in total denial of another of a winner and loser on grounds of “inconclusiveness” of what is to be rebutted on grounds of illegality, unconstitutionality, null, void and “Conclusive” nature of the position of the FRCN by reasons as follows:
- s.1(2) of the FRCN 1999:
- s.179(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.
- s.179(3) In default of a candidate duly elected in accordance with s.179(2) there shall be a second election
- On the authority and interpretation of s.197(2) of the 1999 constitution by the Court of Appeal in the case of FAYEMI & ANOR V ONI & ORS, (2010) LPELR-4145.
THE RESOLVE UNDER CONFLICT OF LAW
According to the Federal Republic Constitution of Nigeria:
“s.1(2) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
With particular regards to a re-run or second election therefore, the 2015 INEC Guidelines, pages 22 – 23, Paragraph 4, Section N issued pursuant to Section 153 of the Electoral Act, 2010 (as amended) which empowers INEC to declare any election inconclusive where the margin of victory is less than the numbers of cancelled votes is in conflict with s.179(3) and of the FRCN 1999 over a second election which state:
“In default of a candidate duly elected in accordance with s.179(2) there shall be a second election ….”
Therefore the conflict of law created under the 2015 electoral act by reason of its own invention, insertion and inconclusive nature of what is made conclusive is what is causing problems on grounds of s.1(2), s.179(2) and (3) of the FRCN 1999 and on the authority of Fayemi & Anor v Oni & Ors (2010) LPELR-4145 that ought to prevail.
Save and except in the situation where a section of the constitution is repealed or amended to pave the way for a subsidiary legislation by the National Assembly then s.179(2) and (3) of FRCN 1999 will continue to be the grundnorm forming the jurisprudence and basis for holding a re-run or second election in Nigeria and from where other subsidiary legislations derived their own authority because the position of law has not changed from the fact that where there is a conflict between a subsidiary and main legislation the position of the main legislation is to be established over and above that of the subsidiary.
Dr. Kayode Ajulo (Esq.) is the principal partner at Kayode Ajulo and Co.
Castle of Law, Abuja
