INEC wrong on inconclusive elections

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