Are supplementary elections legal?
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In a recent lead judgment, the Osun State Elections Petition Tribunal declared supplementary elections illegal. Justice Peter Obiora, who read the judgment, held that supplementary polls are unknown to law. Assistant Editor LEKE SALAUDEEN sought the views of lawyers and other stakeholders on whether or not supplementary elections have legal backing.
SINCE 2011, inconclusive elections have become a major phenomenon in the nation’s electoral process. The Independent National Electoral Commission (INEC) resorted to supplementary elections where results were cancelled as a result of violence, ballot box snatching, rigging, over voting and where election didn’t hold at all.
The debate over the legality or otherwise of supplementary polls was rekindled by the judgment of the Osun State Election Petition Tribunal recently. The lead judgment read by Justice Peter Obiora held that the supplementary election held in seven polling units is unknown to law, because INEC had no power to conduct it. Lawyers and stakeholders have disagreed over the matter, particularly whether or not INEC has the power to declare elections inconclusive and conduct a supplementary election before announcing a winner.
The electoral commission says the constitution, the Electoral Act and its Rules and Regulations give it the power to declare elections inconclusive and to conduct supplementary elections, if the need arises.
Legal luminary Chief Niyi Akintola (SAN) said supplementary elections are legal, because both the 1999 Constitution and the Electoral Act made provisions for it. He said there should be no controversy or argument over supplementary polls, because there are provisions for them in the statute books and that INEC is empowered to conduct it.
The INEC National Commissioner, Prince Solomon Soyebi, said the decision to conduct supplementary poll in Osun governorship election was based on extant law and INEC guidelines and regulations. Soyebi said: The Returning Officer, Professor Joseph Fuwape, had communicated to the Commission his inability to make a return in accordance with the legal framework and INEC guidelines.
“This was as a result of areas where results were cancelled; there was no voting or there were disruptions. In all, 3,498 voters could not vote in seven polling units spread across four local government areas. Based on the results collated by the Returning Officer, the margin between the two leading candidates is 353, which is lower than the number of registered voters in the affected areas.
“Extant law and INEC guidelines and regulations provide that where such a situation occurs, a declaration may not be made and a supplementary election may hold. In the light of this, the commission met and decided it will remobilise and return to the affected polling units on Thursday, September 27, 2018, to conclude collation and make a return.”
A law teacher, Wahab Shittu, agreed with Akintola that supplementary polls are provided for in the Constitution and Electoral Act (2010). He said INEC has the power to declare election inconclusive and conduct supplementary election, if the margin of lead is lower than the number of registered voters who were affected by the cancellation of votes.
He said if INEC is vested with powers to conduct elections, it should retain incidental powers to follow constitutional provisions, the provision of Electoral Act and its own established guidelines.
He said: “Section 179 (2) (a and b) of the 1999 Constitution (as amended) provides that 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.”
On the other hand, Section 53 (2) of the Electoral Act 2010 provides: “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 (INEC) and another election may be conducted at a date to be fixed by the commission where the result of that polling unit may affect the overall result in the constituency.”
Section 53 (3) provides: “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.” However, Section 69 of the Electoral Act provides: “In an election to the office of the president or governor, whether or not contested and in any elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions of sections 133, 134, and 179 of the constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.”
There were cases of inconclusive governorship elections in the past where INEC ordered for supplementary polls, based on the extant law stated above. In 2011 and 2015, the governorship elections in Imo State were declared inconclusive and were concluded with supplementary polls. The commission declared the April 26, 2011 governorship election in the state inconclusive, because election did not hold in Ohaji, Egbema, Mbatioli, Ngor-Okpala and Oguta local councils, as well as in Orji Ward in Owerri North Local Government.
Before the election was declared inconclusive, results for 24 of the state’s 27 local government areas had been announced, with Chief Rochas Okorocha of the All Progressives Grand Alliance (APGA) leading in 12 local councils, with a slim margin over the then incumbent Governor Ikedi Ohakim of the Peoples Democratic Party (PDP), who also won in 12 local councils but trailed Okorocha in the total votes garnered. After the supplementary poll, Okorocha scored 336,859 votes to defeat Ohakim who polled 290, 490 votes.
There was a repeat of performance in 2015. In the first ballot, Okorocha scored 385, 671 while his opponent Emeka Ihedioha of the PDP polled 306,142. Okorocha led with 79,529 votes, while the cancelled votes were 144, 715, hence the need for supplementary election, which Okorocha won.
The 2013 governorship poll in Anambra State was concluded with supplementary election after the first ballot failed to produce a clear winner. In the first results, the APGA candidate, Mr Willie Obiano garnered 174, 710 votes, while Mr Tony Nwoye of the PDP scored 94, 356 votes and the APC’s Chris Ngige had 92, 356 votes. The margin of lead was below the 113, 113 votes cancelled. As a result, supplementary elections were held.
In Taraba 2015 governorship election, Mr Darius Ishaku of the PDP in the first ballot scored 326,198 votes, while Hajia Aisha Alhassan of the APC polled 262,381 votes. Elections were cancelled in the Donga Local Government, and in six polling units in Takum, and in five polling units in other local government areas, with total votes exceeding Ishaku’s marginal lead. INEC conducted supplementary poll and Ishaku eventually won.
During the 2015 governorship election in Abia, 177,000 votes in several polling units were cancelled. Areas affected were some parts of Osisioma, Ugwunagbo, Aba North, Aba South, Isiala-Ngwa South, Isiala-Ngwa North, Umuahia North, Umuahia South, Ohafia, Arochukwu and Umununneochi local councils. INEC ordered supplementary elections in the affected areas. Before the election was declared inconclusive, the PDP candidate, Dr Okezie Ikpeazu, had polled 248, 549 votes, while the APGA flag bearer, Chief Alex Oti, scored 165,406 votes, making a difference of 83,053 votes, which was less than the number of cancelled votes.
In Kogi, after election results from the 21 local councils were collated, the APC candidate, the late Prince Abubakar Audu, scored 240,867 votes, as against Idris Wada of the PDP who polled 199,514 votes. INEC ordered supplementary elections in some units, because the 49,953 votes cancelled were higher than the margin between Audu and Wada.
The Bayelsa governorship election in 2016 also went through supplementary poll. Governor Seriake Dickson had to wait for the outcome of the repeated election in Southern Ijaw Local Council for him to be declared winner. With results of the seven out of eight local councils collated, Dickson scored 105,748 votes, while his closest rival, Chief Timipre Sylva of the APC, polled 72,594 votes. The margin of lead was 33,154 votes. The Southern Ijaw Local Counci had 120,827 registered voters, which was the reason why INEC declared the election inconclusive and called for a supplementary election.
On the powers of election petition tribunals to nullify candidate’s victory, Akintola said they have the power to unseat the occupant of a political office, if it was established before the tribunal that the winner declared by INEC did not win majority of lawful votes and did not meet constitutional requirements. He said examples abound of governors who mounted governorship seat through the law courts.
In August 2005, the Anambra State Election Petition Tribunal had nullified the election of former Governor, Dr Chris Ngige, and declared Mr. Peter Obi of APGA winner. The tribunal ruled that INEC erred in declaring Ngige winner of the 2003 governorship election in Anambra State. It noted that Obi had won a free and fair election, while the result was rigged in favour of the PDP and its candidate.
Ngige appealed the judgment. He remained in office while the appeal lasted. On March 16, 2006, the Court of Appeal sitting in Enugu quashed Ngige’s election. It upheld the ruling of the election tribunal which had earlier confirmed Obi, and not Ngige, as winner of the election. Following the ruling, Obi was sworn in as governor of Anambra State.
Dr. Kayode Fayemi, the governorship candidate of the defunct Action Congress of Nigeria (ACN) in 2007, was embroiled in a tortuous legal battle that spanned 41 months and seven days to retrieve his mandate. After the April 14, 2007 governorship election, INEC returned his opponent, Mr Segun Oni of the PDP, as the winner. On May 8, 2007, Fayemi, in a 50-page petition, approached the Justice Bukar Bwala-led Election Petition Tribunal in Ekiti for justice and to reclaim his mandate.
However, the tribunal turned down his petition and affirmed Oni’s victory. Dissatisfied, Fayemi headed for the Court of Appeal in Ilorin and got a judgment. The five- man panel led by Justice Mohammed Dattijo on February 14, 2009 nullified Oni’s election and ordered re-run polls in 63 wards in 10 local councils. The re-run polls held on April 25, 2009 were marked by violence and could not be concluded until May 5, 2009. After a series of dramatic events, including disappearance of the Resident Electoral Commissioner, Mrs. Ayoka Adebayo on the grounds that some people wanted to force her to do things against her will, Oni was returned as winner with 111,140 votes as opposed to Fayemi’s 107,011 votes.
Fayemi headed to the tribunal again to challenge Oni’s victory. The tribunal had a hectic time handling the matter. But, in the end, with a split judgment, Oni was once again returned as winner by the leader of the panel, Justice Hamma Barka and two others. However, two member of the tribunal, Justices Abiodun Adebara and Obande Ogbuniyan disagreed. In a minority judgment, they nullified Oni’s victory, declared Fayemi as the winner and ordered the INEC to issue Fayemi with the Certificate of Return.
Again, Fayemi appealed the tribunal’s judgment. In a unanimous decision by the Court of Appeal, the five-man panel led by Justice Ayo Salami declared Fayemi winner. After nullifying elections results in Ido-Osi and Efon Local Councils, the court ruled that Fayemi polled 105,631 lawful votes, as against Oni’s 95,176 votes. The court ordered that ACN candidate be issued the Certificate of Return as the elected governor and ordered Oni to immediately vacate the office for the duly elected candidate.
Justice Salami declared: “Segun Oni was not validly elected, as he did not get the majority of valid votes cast. Segun Oni’s election is hereby nullified. Dr Fayemi, having won the majority of votes cast and having met the constitutional requirements and 2006 Electoral Act, is hereby declared the winner of the elections.
In April 2007, Comrade Adams Oshiomhole ran for Edo State governorship election on the platform o Action Congress (AC). INEC declared Professor Oserheimen Osunbor of the PDP as the winner. On March 20, 2008, the Chairman of the Edo State Governorship Petition Tribunal, Justice Peter Umeadi, nullified the election of Osunbor and declared Oshiomhole as the winner of 2007. The tribunal ruled that the former labour leader had proved his allegations of fraud, voter intimidation, multiple voter registration, over voting and election violence. The tribunal held that the results were adversely affected.
The tribunal invalidated 263,144 from the PDP votes and 30,610 from ACN. It declared Oshiomhole the true winner with 166,577 votes. Dissatisfied with the tribunal judgment, Oserheimen headed for the Court and prayed the appellate court to overturn the tribunal judgment and declare him the winner. But the Appeal court upheld the judgment of the tribunal and affirmed Oshiomhole as duly elected governor.
On August 25, 2008, the Ondo State Election Petitions Tribunal nullified the election of Governor Olusegun Agagu of the PDP and declared Dr Olusegun Mimiko of the Labour Party winner of the April 14, 2007 governorship election.
The five-man tribunal headed by Justice Garba Nabaruma ruled that Mimiko should be sworn in immediately as the governor of the state because he won the valid votes in 12 out of the 18 local councils in the state. According to the tribunal, Mimiko scored 198,269 votes while the PDP candidate, Agagu got 128,669 votes.
Agagu contested the tribunal judgement at the Court of Appeal and asked the court to declare him the winner of the election. Instead, the appellate court upheld the earlier ruling of the tribunal, sacked Agagu and declared Mimiko the duly elected governor of the state.
The court ruled that having satisfied the requirements of Section 179 (2)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria and by the virtue of section 147(2) of the Electoral Act Nr. 2 of 2006, “Mimiko be and is hereby declared as the Governor of Ondo State of Nigeria.”
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