Again, INEC and burden of inconclusive elections

THE Independent National Electoral Commission (INEC) shocked millions of Nigerians on Monday, March 11, when it announced that the March 9 governorship elections conducted in 29 states of the federation were inconclusive in six states.

Incidentally, at its inception, the current INEC had earned the appellation of “inconclusive commission”, that was as a result of its penchant to declare election results inconclusive, following the first experiment of that oddity in the Kogi State governorship election of November 2015.

After the governorship election in Bayelsa State in January 2016, the commission appeared to stabilise a bit as Nigerians started addressing their attention to the all-important 2019 elections. Last year, the ogre of inconclusive election reared its head again at the Osun State governorship election.

On March 11, INEC announced that elections in Sokoto, Adamawa, Kano, Benue, Bauchi and Plateau states were inconclusive, while the election in Rivers State was suspended. It was the biggest haul of the inconclusive scenario and a sort of embarrassment to the nation’s political development. INEC had stated that its decision to declare the results inconclusive was based on the fact that the number of canceled votes exceeded the margin of win between the two leading candidates in each of the affected states.

Reports indicated that in Adamawa State, Umaru Fintiri of the Peoples Democratic Party (PDP) was leading with 367,471 votes as against Governor Jubrila Bindow of the All Progressives Congress (APC) who polled 334,995 votes. The margin of victory stands at 32,476 votes as against the canceled votes which stand at 40,988.

In Bauchi State, Senator Bala Mohammed also of the PDP scored 469,512 votes to lead Governor Mohammed Abubakar of the APC who scored 465,453 votes. It was said that some 45,312 votes were canceled, leaving a margin of 4,059 votes between the leading candidates. In Benue State, Governor Samuel Ortom also of the PDP scored 410,576 votes, while his challenger from the APC, Emmanuel Jime, scored 329,022. The margin of win was stated as 81,554 votes while 121,019 votes were canceled.

In Kano State, Abba Yusuf of PDP polled 1,014,474 vote,s while Governor Abdullahi Ganduje of APC scored 987,819 votes. The margin between the two candidates was 26,655, while the canceled votes were put at 128,572. In Plateau State, incumbent Governor Simon Lalong of the APC scored 583,255 votes, while Senator Jeremiah Useni of the PDP scored 538,326 votes. INEC said that, with the margin of win between them standing at 44,929 votes, while canceled 49,377 votes were canceled, the election is inconclusive. Also in Sokoto, State, Governor Aminu Tambuwal of the PDP scored 489,558 votes, while the runner-up, Aliyu Ahmed of the APC, scored 486,145. There was a margin of 3,413 votes, while the commission claimed that 75,403 votes were canceled.

But the decision of INEC in the above instances is clearly open to contestations at the tribunals and the courts. This is in view of the fact that the provisions of the Nigerian Constitution 1999 (as amended) do not support the claims. The constitution, in Sections 133, 134 and 179, provides for conditions where a candidate can be declared the winner of the seat of president of the Federation or that of governor of a state.

In all of the conditions recognised by the constitution, none refers to “margin of win” which INEC has raised to Olympian heights in the 2019 round of elections. The relevant constitutional sections stipulate as follows:

Section 133: “A candidate for an election to the office of President 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 States in the Federation and the Federal Capital Territory, Abuja.”

Section 134 (1): “A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidates for the election –(a) he has the majority of 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 States in the Federation and the Federal Capital Territory, Abuja.

(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election- (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the states in the Federation and the Federal Capital Territory, Abuja.”

Section 179 states thus: 179. (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.”

Besides the constitutional provisions, Section 53(1 and 2) of the Electoral Act 2010 (as amended) as well as Section 69 of the Act provide for conditions whereby votes can be voided. Section 53 of the Electoral Act recognises over-voting as a condition where votes of the affected polling unit can be voided.

Section 69 of the Electoral Act indicates that: “In an election to the office of the President of Governor whether or not contested and in any contested election to any other 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.”

But INEC is hanging on to provisions of the Electoral Act 2010 at Section 53(2) which states that: “Where 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 null and void by the commission and another election may be conducted at a date to be fixed by the commission where the result at that polling unit may affect the overall result in the constituency.”

Sadly, the issue of inconclusive election has not been with us for too long. It crept in with the shocking demise of the former Governor of Kogi State, Abubakar Audu, in 2015. He was coasting to victory in the governorship election as of the time he died. The nation was more than jolted as legal luminaries battled to resolve the legal lacuna. The nation’s laws do not envisage a contestant dying midway into an election.

Though senior lawyers engaged by INEC then opined that the commission should recognise Audu’s running, Honourable James Faleke, as the beneficiary of the election he partook in as running mate, the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, declared that INEC should declare the election inconclusive and cause the leading party to pick another candidate who was runner up at the primaries. That was how Governor Yahaya Bello emerged the candidate who benefited from the Audu and Faleke’s vote haul from the election of November 21, 2015.

At that election, the late Prince Audu of APC had won 240,867 votes while Idris Wada of the PDP had scored 199,514 votes. There was a margin of win of 41,353 votes between the leading candidates and at the rerun election only about six thousand votes were added to that. There were insinuations that forces in the APC which were opposed to the ascendancy of the party’s National Leader, Senator Bola Ahmed Tinubu, had moved to push INEC in the direction it took.

INEC again repeated the inconclusive game in January 2016 when the Bayelsa State governorship election was declared inconclusive. INEC said that disruptions of the election process in the Southern Ijaw axis made a declaration impossible. And again in the Osun State governorship election last year, the same inconclusive headache harassed the electoral circles.

Unfortunately, INEC has been unable to justify the refusal to apply the inconclusive appellation to some elections and why the logic is only applied haphazardly. For instance, critics of the commission had raised issues as to why the governorship election in Ogun and Kaduna states were not declared inconclusive, especially when the results declared fell within the “margin of win” description.

Just before the general election, INEC also failed to declare as inconclusive the election into the House of Representatives in Lokoja/Koto Federal Constituency, a bye-election to fill the vacant seat following the death of Honourable Buba Jibrin. The APC candidate in the election, Honourable Haruna Isah, polled 26,860 votes to defeat Bashir Abubakar of the PDP, who scored 14,845 votes. With 19, 960 votes canceled, analysts believed that INEC should have applied the “margin of win” logic.

• Democracy has come to stay in Nigeria ― Yakubu Gowon

Also in the February 23 National Assembly election, Senator Mao Ohuabunwa, representing Abia North Senatorial District, had cried out, asking INEC to declare the election inconclusive, rather than announce Chief Orji Kalu as the winner. Kalu of the APC had scored 31, 201 votes to beat Ohuanbunwa of PDP who polled 20, 801 votes. Though some 38, 526 votes were canceled and with the margin of victory standing 10,400, many expected INEC to declare the election inconclusive. INEC, however, went ahead to issue Certificate of Return to Kalu, who has now been certified to represent Abia North.

It needed to be said, however, that the crisis of legal tango the electoral commission had placed upon itself got worsened through the instrumentality of its guidelines, which however remain subservient to the constitution. For instance, in trying to further the cause of the Electoral Act and the constitution, INEC released Regulation 34(e) which provides that:

“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 elections were not held or were canceled 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.”

Section 26 of the Electoral Act provided for conditions by which election can be postponed either as a result of natural disasters or serious breach of the security that make deployment of materials impossible.

According to Section 26(1) “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, provided that such postponement is cogent and verifiable.”

But historical analysis of elections and electoral victories in the Fourth Republic thus far has also nullified INEC’s logic of “margin of win” and the number of canceled votes. A classic example in recent years was the victory of Governor Rauf Aregbesola at the Appeal Court, Ilorin in 2010. The Court of Appeal, in November 2010 then acting as the highest court that entertained governorship petitions, nullified results of 10 local government areas out of the 30 local government areas that constitute the state and declared Aregbesola winner of the Osun poll of 2007. INEC had ascribed Olagunsoye Oyinlola of the PDP with 426,669 votes, while allotting 240, 722 to Aregbesola. With the margin of win at 185,947 votes, the court went ahead to cancel 298,712 votes in the 10 local councils to give Aregbesola victory.

A similar scenario brought Comrade Adams Oshiomhole into office as the governor of Edo State and also former Governor Olusegun Mimiko into office as the governor of Ondo State. In the three circumstances, huge votes that neutralised the margin of win were deducted from the candidates of the PDP in the two instances to declare Oshiomhole of the then Action Congress of Nigeria (ACN) and Mimiko of Labour Party winners.

With such historical perspectives, it is clear that INEC’s latest love for “margin of win” in relation to canceled votes would amount to what the lawyers would call forum shopping. The commission would do well to rid the electoral process of some undue technicalities and jargons by restricting itself to constitutional provisions in determining winners of electoral contests.

As it is, for candidates for the position of president and governors, the constitution recognises only two main conditions: simple majority and one-third of the votes in two-thirds of the states of the country and the Federal Capital for president or one-third of two-thirds of the local governments in case of governors.