The Inconclusive Declaration of Osun Governorship Polls: Distilling The Law From Sentiments

By: *Charles Ehimen*

The Independent National Electoral Commission through the state’s Returning Officer Prof. Joseph Adeola yesterday declared the Osun Governorship election inconclusive. The reason given is premised solely on the ground that the Total numbers of cancelled votes were more than the margin between the two leading contenders whom are Oyetola of the All Progressive Congress and Adeleke of the People’s Democratic Party.

The Election as it is usual with the Nigerian Political Space, had heated the polity and same also casted doubts in the minds of Nigerians as to the Integrity of the Electoral Umpire. The complicity of the Independent National Electoral Commission would not be addressed in this article but rather the Legality or otherwise of the Declaration would be examined through a Legal Lens.

The power to conduct Elections and make laws incidental thereto is vested on the Independent National Electoral Commission by The Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 153 of the Electoral Act 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” And Section 73 of the Act, stipulates: “Subject to the provisions of this Act, the Commission shall issue and publish, in the Gazette, guidelines for the elections which shall make provisions, among other things, for the step by step recording of the poll in the electoral forms as may be prescribed, beginning from the polling unit to the last collation center for the ward or constituency where the result of the election shall be declared”.

It is a settled principle of law that where a Law is plain, Clear and unambiguous meaning must be accorded to it in its ordinary and natural meaning except where to do so will result in absurdity. The wordings of Section 153 and 73 of the Electoral Act is plain and unequivocal, the literal meaning of Section 153 and 73 of the Electoral Act read together posits that INEC is empowered by the Electoral Act to make Rules, Guidelines and Regulations guiding the conduct of Elections in Nigeria.

This position was given Judicial Backing by the Court of Appeal in the case of *IHUOMA v. AZUBUIKE & ORS (2015) LPELR-25978(CA) p. 36-38, Para’s. C-A* where it was held that;

_…the place of the INEC guideline, regulations and manual for the conduct of election cannot be wished away by any logical argument, no matter how brilliant, as the guidelines, regulations and manual, by operative rules of procedure, have become part and parcel of the Electoral Act, which vested authority on the Commission (INEC) to make them (guidelines, regulations and manual) for the purpose of giving effect to the provisions of the Act. That, I think, was the purport of the Section 153 of the Electoral Act, 2010, as amended._

The Principle in the case of *IHUOMA v. AZUBUIKE & ORS* was reinstated in the case of *AJADI v. AJIBOLA (2004) 16 NWLR (pt.898) 91 at 165*. Flowing from the authorities in both cases INEC is vested with the Inherent authority to make guidelines for the conduct of Elections in Nigeria.

In line with the inherent authority vested on INEC to make rules and regulations for the conduct of elections, the INEC enacted the *Manual for Election Officials (updated version)*. *Chapter 3* *paragraphs 3.11*, *step 14* of the said Manual provides;

_3.11: Final Collation and Declaration of Governorship Election Results at State Level: The State Collation/Returning Officer for the Governorship shall: Step 14: “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) where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new Form EC8D and subsequently recorded into a new form EC8E for Declaration and Return.”_

The Position of the Manual for Election officer which is a subsidiary of the Electoral Act is clear and unambiguous. In the Recent Case of *HON. FALEKE V INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR (SC. 648/2016)*, the Supreme Court held that;

_The provision is clear and straight forward and did not require a foray into any other provisions in the Manual for it to be effected. There is no dispute as to the fact that the margin between the votes scored by the late Prince Audu and the appellant on the one hand and Capt. Wada and Arch. Awoniyi, on the other was 41,619, which was less than the total number of registered voters in the 91 polling units where votes were cancelled. I therefore agree with the court below that the 1st respondent was correct to have declared the election inconclusive on the basis of the number of registered voters in the 91 affected polling units. Having regard to the clear provisions of the Election Manual, it would have been wrong for any electoral official to base his decision on any other consideration, such as the number of registered voters who had collected their PVCs,or the geographical spread of the votes already cast. Clear and unambiguous provisions must be given their natural and ordinary meaning. Neither the court nor learned counsel is entitled to read into a provision what it does not contain._

Juxtaposing the position of the Law in Faleke’s Case which is the most recent authority on the power of INEC to declare an Election Inconclusive, it is clear that INEC acted within the ambit of the law because the margin between the leading contenders was less than the number of the cancelled votes. The Law remains the law until same is amended and the law does not operate within the whims and caprices of sentiments.

I therefore urge INEC to conduct a free, fair and credible re-run Election come Thursday.

Vox Populi, Vox Dei- The Voice of the People is the Voice of God.

*(C)* Charles Ehimen 2018

charlesehis4law@gmail.com

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