The echoes of Osun Governorship elections, conducted on Saturday 21, 2018, has continue to reverberate through the length and breadth of Nigeria, far away from the State, where the Returning Officer and Vice Chancellor of Federal University of Technology, Akure, Ondo State,, South West Nigeria, Prof. Joseph Adeola Fuwape declared the poll inconclusive.
The People Democratic Party (PDP) maverick candidate, widely known for his love of dancing Senator Ademola Adeleke polled majority vote of 254, 689, while Isiaka Oyetola the All Progressive Congress(APC)candidate came a close second with 254,345. Senator Adeleke bested his close rival with a difference of less than 400 votes.
The difference between the number of winning votes scored by PDP and cancelled votes in the words of the Returning Officer prompted him to make a return of inconclusive results.
The gale of condemnation and outrage that followed Professor Fuwape , pronouncement was not assuaged by the statement of the Independent National Electoral Commission, signed by the National Commissioner and Chairman of Information and Voter Education Committee, Prince Solomon Adedeji Soyebi to allay fears of any motive on the part of the EMB.
According to the statement, “notwithstanding the successful conduct of the elections, the Returning Officer , Professor Joseph Adeola Fuwape, Vice Chancellor of Federal University of Technology , Akure, has communicated to the Commission his inability to make a return in accordance with the legal framework and INEC Guidelines . This is as a result of areas where results were cancelled , there was no voting or there were disruptions .
The statement further identified seven polling units spread across 4 local governments, with the total number numbers of voters affected put at 3, 498, way above the winning margin of less than 400 votes. The local governments in question includes; Orolu (947 voters); Ife South(1, 314 voters); Ife North(353 voters) and ; Osogbo (884 voters).
Soyebi added in the statement that, “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.
The Commission therefore set Thursday 27, to go back to the affected polling units for a re—run. The date notwithstanding , the cacophony of voices for and against the pronouncement has not only risen to deafening crescendo, the new as well as conventional media spaces is yielding a harvest of over night legal luminaries, each opinion as diverse as the understanding of the author, no matter how ludicrous and limited.
This development has once again brought the perceived impartiality or otherwise of the EMB to the fore, with those against the pronouncement bent on believing that, the decision to declare the polls inconclusive was scripted to favour one of the political parties.
In our view, jumping to such conclusion without the benefit of proof is not only dangerous, but indeed saddles INEC with the burden of integrity deficit as it prepares to deliver the 2019 general election. And indeed nothing could be more damaging to its public perception and reputation as an unbiased referee, if these insinuations eventually turn out to be true.
THE ISSUES
Two issues appear to be at the centre of the entire discuss around the pronouncement of the Returning Officer or INEC aas it were namely; the legal powers of INEC to declare an election inconclusive; and whether the processes and outcome of the Osun governorship polls warrants the invocation of such powers, if at all it is so vested in INEC.
It is indeed incontrovertible that, section 153 of the Electoral Act 2010(As amended) empowers INEC to make Guidelines, Regulations, to aid its work.
Section 153 of the Electoral Act 2010( As amended) in support of the above provides that, “The Commission may, subject to the provisions of this Act , issue regulations , guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof”
The Returning Officer therefore acted in conformity with the provisions of the INEC Manual for Election Officials 2015(Updated), pg 62, which provides that, “where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the Polling Unit(s) cancelled or not held, decline to make return until another poll has taken place in the affected Polling Unit(s) and the results incorporated into a new form EC&D and, subsequently, recorded into form EC.8E for Declaration and Return”
However, relevant provisions of the 1999 Constitution, particularly sections 179(2) a and b as amended , seem to override the Electoral Act, where it clearly spells out the condition for returning a candidate to the office of governor of a state.
The section states inter alia, “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 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.
A cursory look at the provisions of the Act , as well as the Constitution, which by the way is superior to the Act appear to suggest the following; (a) the Act clearly empowers INEC to declare an election inclusive , going by the powers vested on it to issue regulations , guidelines, or manuals, and in this instance through the INEC Manual for Election Officials; (b) the provisions of the 1999 Constitution spelling out the conditions precedent for returning a candidate to the office of governor of a state, seem to override the provisions of the Act vesting INEC with powers to determine when an election is inconclusive.
We believe that, the issues canvassed by both the Act and Constitution ought to be tested in the courts to determine, which between the Act and Constitution is superior in this instance.
However, while we wait for these issues to be tested in court, INEC cannot afford to be seen as taking sides or seeking to promote the interest of one political party above another. This timely advice has become necessary, even as the EMB prepares to mobilize back to the field to conduct election in areas affected by the cancellation or disruption, all things being equal, except the courts rules otherwise.
We believe INEC must thread with cautions at this critical bend in the journey to 2019, because of the implication of a radical shift in the perception of the EMB. The safety of lives of its staff and its properties could be at risk from those who may have the impression of the Commission as a biased umpire.
While it is easy to contain violence in staggered elections by concentrating all available forces on such areas, this may be difficult to do, when the security agencies are spread thin, because of the wide area of coverage. The sad and painful killings that followed the 2011 general elections , which claimed the lives of innocent Nigerians, including young Nigerians serving under the National Youth Service Corps is indeed a sad reminder of what could happen in an atmosphere of failure of perception or frustration.
We firmly believe that, the INEC should not only be uncompromising in exercising its powers under the law, it must also take caution to guide against abuse or be seen to be pandering to any interests, or anti democratic tendencies.
The proclivities of the Nigerian political class for electoral malfeasance though legendary, could be over -come by the determination of INEC to rise above partisanship in the discharge of its mandate and we demand no less, as it prepares to conduct the Osun Governorship re-run election.
The new Chairman of the Independent National Electoral Commission, Professor Mahmoud Yakubu, assumed office, few weeks to the Kogi State and Bayelsa State governorship elections. Prof. Yakubu alongside newly sworn- in members of the Commission, therefore had little time to catch their breath before swinging into action.
Prof. Yakubu, was sworn – in on Monday, November 9, 2015, at the Council Chambers, Presidential Villa by President Muhammadu Buhari, GCFR. He was sworn- in, alongside other new and re-appointed National Commissioners, namely, the then Acting Chair person, Mrs Amina Zakari (Jigawa)-North West; Dr AnthoniaTaiyeOkoosi (Kogi)-North Central; Alhaji Baba Shettima Arfo (Borno) –North East; Dr Mohammed Mustafa Lecky (Edo)- South/South and; Mr Soyebi Adedeji Solomon (Ogun)-South West, who returned as National Commissioner.
Unlike most political appointees, who in the typical Nigerian fashion, spend time adulating in new appointments, inundated with congratulatory messages from well wishers, contractors and foes alike, new members of the Commission, without a doubt knew theirs was a “thankless job “where long held relationships are tested and sometimes torn asunder.
Under the watch of the Prof. Yakubu , Kogi governorship election held on November 21, and finally concluded on December 5, 2015, after supplementary elections in 91 polling units across the state, while Bayelsa governorship election took place on December 5, while a new date is yet to be fixed for the cancelled elections in Southern Ijaw Local Government Area.
Perhaps, what may not have been envisaged , even for the Chairman and his colleagues, besides the need to hit the ground running, was the challenges thrown up by the just concluded Kogi State governorship elections as well as the yet to be concluded Bayelsa governorship elections.
Preparations and deployments for both elections, particularly that of Kogi, fixed for November 21, were seamless, with no noticeable hitch what so ever.
It was therefore a matter of routine for the newly appointed Chairman and his team to go to Kogi state for the Stakeholder meetings, an important routine for state elections, where the elections are staggered in the case of Kogi and Bayelsa.
The meeting also went well enough, without any hint or foretaste of what would later turn out to be one of the most complex constitutional logjam, to confront the Commission, nay Nigeria’s jurisprudence in election time.
The two leading candidates and their supporters, in the view of many, atleast exhibited the required level of comportment and decorum , in the run up to election day, given the circumstances of deep seated rivalry between the two candidates and political parties , as well as the usual variables associated with the contest for political power in Nigeria.
Quite expectedly for the Prof. Yakubu led Commission, the first election over which it superintended, appear headed for a quick and amicable conclusion, on the beginning of election, until the election was declared inclusive by the State Returning Officer, Prof. Emmanuel Kucha (Vice-Chancellor of the University of Agriculture, Makurdi), after collation spilled into the following day, which in itself is not entirely new in the process of electioneering in Nigeria, particularly in the last decade.
It was therefore not entirely surprising that, a supplementary election, in-line with section 153 of the Electoral Ac 2010(As amended) which empowers INEC to make Guidelines, Regulations, to aid its work, was ordered by the Returning Officer, acting on behalf of the Commission.
Section 153 of the Electoral Act 2010( As amended) in support of the above provides that, “The Commission may, subject to the provisions of this Act , issue regulations , guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof”
The Kogi governorship election was declared inconclusive, because the total number of registered voters in units where the results are cancelled , are sufficient to cause a change in the outcome of the election.
Indeed, this situation would have been completely under the grasp and understanding of the new Commission, moreso with the 2015 General Election Manual as a guide.
The Returning Officer therefore acted in conformity with the provisions of the INEC Manual for Election Officials 2015(Updated), pg 62, which provides that, “where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the Polling Unit(s) cancelled or not held, decline to make return until another poll has taken place in the affected Polling Unit(s) and the results incorporated into a new form EC&D and, subsequently, recorded into form EC.8E for Declaration and Return”
For many watchers of the political process, particularly pundits who make it their business to interpret every action of the Commission, rightly or wrongly, the order for supplementary election therefore sat well with many, including the gladiators in the Kogi governorship election.
Barely, 24 hours after the pronouncement of the election as inconclusive, one of the candidates, Prince Abubakar Audu of the All Progressive Congress (APC) was reported to have died of undisclosed ailment, which effectively brought the proposed supplementary election into the arena of legal shadow boxing.
Of course, while legal pundits and the not so informed went into frenzy, trying to unravel what seemingly looked like a legal cul de sac for the midwives of the process, the new Commission kept its head and began a diligent search for an acceptable solution both before the law and political stakeholders, majority of whom had taken divergent views.
Matters became more complex, when gladiators in the process, all sought to be declared winners or inheritors of the vote cast in favour of the party of the deceased candidate.
Days to the schedule supplementary election, the legal fireworks peaked, with sections 181 of the Constitution as well as 36 of the Electoral Act 2010(As amended) becoming reference points of law, upon which the arguments on both divide flowed or ebbed.
It would indeed amount to stating the obvious, to say that, the new Commission did not anticipate what occurred, in the unfortunate passing on of one of the candidates, in the middle of an election proccess, more so a candidate which party was leading the already collated results by some margin.
The matter became more heated, in the light of the absence of clear points or provisions of law expressly addressing the issue at hand. Indeed, neither the Constitution nor the Electoral Act 2010(As amended) provides for a clear path of where to go in the event of such occurrence.
It is therefore given, and indeed incontrovertibly so, that what occurred on November 22, 2015, while waiting for the schedule supplementary election, may have indeed caused the new Commission to lose some sleep, if not for nothing, thinking a way out of what appears at the time to be a legal del de sac.
Legal opinion became sharply divided in the days before the schedule supplementary election, hinged mainly on the applicability or otherwise of sections 181 of the Constitution as well as 36 of the Electoral Act 2010(As amended).
Section 181 (sub) 2 of the 1999 Constitution provides that, “If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and Oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy Governor shall be sworn in as Governor and he shall nominate a new Deputy Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly “
Section 36 of Electoral Act 2010(as amended) states that, “If after the time for delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the chief national electoral commissioner shall, being satisfied of the fact of the death countermand the poll in which the deceased candidate was to participate and the commission shall appoint some other convenient date for the election, within 14 days”
Perhaps anxious not to be caught in further controversies of not acting before the schedule date of the supplementary election, the new Commission intensified efforts to explore its internal processes with a view to finding a path out of the seeming logjam, while the political and cyber space, as well as the media became heated with all manner of debates.
While many canvassed the Doctrine of Necessity, as had been invoked in the recent past, others insisted on strict adherence to the letters and spirit of law, in which both constitutional provisions as well as the Electoral Act, completely failed to contemplate the scenario, the Commission and the political process had to grapple with.
In the midst of the legal fireworks, coupled with heated national debate on the Kogi scenario, the Prof,. Yakubu led Commission evidently rose above the fray, after due consideration, allowed the APC to fill the vacancy created by the unfortunate passing on of its governorship candidates.
According to the statement dated November 24th , 2015 and signed by the Commission Secretary , “ The Independent National Electoral Commission conducted Governorship Election in Kogi State on 21st November 2015, which was declared inconclusive.
“On the 23rd November 2015, the All Progress Congress (APC) notified the Commission of the death of the Governorship candidate in the election, Prince Abubakar Audu. The Commission has , after due consideration of the circumstances , decided as follows;
(i)to conclude the process by conducting election in the 91 affected Polling Units as announced by the Returning Officer;
(ii) to allow the All Progressive Congress to fill the vacancy created by the death of its candidates;
(iii) to conduct the supplementary election on 5th December , 2015.
Accordingly, notice is hereby given to all the 22 Political Parties participating in the Kogi Governorship Election that supplementary election in the 91 affected Polling Units shall hold
If the announcement and indeed the position of the Commission was expected to rest the debate on the appropriate course of action, under the circumstances, it rather added spice to the debate, with the political space choked with diverse legal opinion, both informed and uninformed.
While many insisted on the non applicability of the provisions of law as contemplated by both the Constitution and Electoral Act, not a few actually believed that INEC erred in law by allowing APC to fill the vacancy created by the unfortunate demise of its flag bearer.
The decision of the court to dismiss requests by both the APC Deputy Governorship as well as Peoples Democratic Party Governorship candidates to be declared rightful winner of the elections, no doubt thicken the legal brew brought forth by the situation, not entirely contemplated by the laws governing elections in Nigeria.
With the benefit of hindsight, the actions and inactions of key actors in the unfolding scenario to the culmination of the supplementary will for some time become a subject of jurisprudential discuss. Indeed it is even safe to hazard a guess that, in the not too distant future, the courts will be making some very profound declarations concerning who did what, rightly or wrongly.
Such questions as to the legal implications of the decision of the Commission to invite the APC to fill the vacancy created by the demise of its candidate will be a focal point of interest at some point in the legal fireworks that may ensue.
However, beyond the legalese of how the Commission responded to the situation, it is perhaps noteworthy to observe that, the new Commission, acted in good time, rather than wring its hand in frustration, while waiting for the matter to resolve itself.
The new Commission clearly exhibited the required focus and leadership in taking the decision it took, under the circumstances.
For those, with eyes on history, it bears telling that, at any critical moment in the history of a nation, such as the Commission had to deal with it, it would have been worse, if the supplementary had not taken place.
This scenario would have played into the hands of those who did not want the supplementary to hold, but thankfully, the court ruled otherwise.
For whatever legal or ethical considerations gave rise to the decision of the Commission, it is equally important to stress that, the response of the Commission’s leadership was not only swift and but certainly forward looking, knowing full well that, issues arising from the election would be trashed out at the Tribunal , if the need arises.
What is not in doubt however is that, a pronouncement of the Supreme Court or an amendment of the Constitution or the Electoral Act, will hopefully address once and for all, the obvious gaps brought to the fore by the unfortunate demise of the governorship candidate of the APC, in the course of the just concluded Kogi Governorship election.
For the Bayelsa governorship election, where preparations and deployments also conformed to the standards, that has become synonymous with the Commission election cycle activities, security challenges appeared to be the bane of the smooth out come.
The immediate outcome of the security challenges that bedeviled the conduct of the governorship in Bayelsa , was the cancellation and rescheduling of election in Southern Ijaw Local Government Area for yet unannounced date.
Unlike the kogi governorship elections, the current circumstances of the Bayelsa governorship election cannot by any stretch of imagination be blamed on the Commission, going by the apparent misconduct of the supporters of the political gladiators in the contest.
For watchers of the Bayelsa election process, the resort to wide spread ballot box snatching and associated violence generally made the election environment unsafe and any result declared thereof unreliable and acceptable in the affected Local Government. .
Given the new Chairman’s teaching background, in security and defence studies, it is indeed expected that, the integrity of the security of election environment, as well as closely related issues will be of paramount interest to him.
It was not therefore entirely surprising that, he met with security chiefs, including the Inspector General of Police, under the aegis of the Inter-Agency Consultative Committee on Election Security(ICCES) to firm up strategies for securing both Kogi and Bayelsa Elections.
The security challenges experienced in the Bayelsa elections could not therefore be attributed to lack of planning as some critics would want the world to believe, moreso when issues of security and prosecution of electoral offenders still remains under the purview of the various security agencies, as provided for by law.
Critics have been quick also to unfairly throw stones at the new Commission for the failure of the Smart Card Reader to fully function in a few polling units, including those of former President Goodluck Jonathan.
It is on record that, both domestic and international stakeholders in the nation’s electoral process has acknowledged the introduction of the Smart Card Reader , as a game changer in the series of innovation that made the 2015 General Elections, the best in the history of balloting.
It is however unexpected that, a new technology such as the Smart Card Reader would not have teething problems in its deployment and usage.
It is therefore patently unfair to accused the Commission of ill-preparedness in the event of the failure of the Smart card Readers in isolated polling units, which numbers could not significantly impact the out come of the elections, as in the case of the Bayelsa governorship elections.
As eloquently explained by National Commissioner, Dr Mustapha Mohammed Lecky , in Yenogoa in the course of the election, the Commission prepared for the event of malfunctioning SCRs, by providing for enough back-ups in the case of failures or redundancies.
For a Commission , that had to conduct two keenly contested elections , barely few weeks after coming into office, and given the manner it rose up to the challenges that accompanied those elections, it is clearly a testament to the capacity of the new Commission , under the leadership of Prof. Mahmoud Yakubu to operate under pressure.
END
