It is no longer news that the Independent National Electoral Commission(INEC) declared the Osun State Governorship election inconclusive. This bold action has triggered all manners of verbal umbrage against the Umpire but notably targeted at the Head of INEC, Professor Mahmood Yakubu. Conspiracy theorists have latched upon this action to vent their anger on a man whose only “sin” was that he was appointed by the current president. But before delving into the mind-numbing logic of judging a man’s character and competence for a job based on the perception of the judge of the appointing authority, let us dispassionately examine INEC’s action and try to situate or anchor the legality or otherwise of the said action against the provisions of the statutes that undergird elections in our country.
First, the Constitution and the Electoral Act made it mandatory on INEC to conduct free, fair and credible elections. To achieve this, the voter is vital. His/her vote must count. Protecting the sanctity of the vote is crucial. The entire electoral legal framework is intended to achieve this objective. Responsibilities are assigned, processes and procedures defined and sanctions prescribed all with the intention of achieving that objective. Specifically, Section 153 of the Electoral Act 2010 (as amended) empowers the Commission, in pursuit of the provisions of the Act, to "issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof". Accordingly, INEC has made guidelines and regulations to protect the sanctity of the vote in instances where the processes are disrupted to disenfranchise voters. It is common knowledge that politicians have hijacked ballot papers, chased away voters and disrupted processes and procedures to gain an unfair advantage. That is why INEC formulated guidelines and regulations to the effect that where voters are disenfranchised on account of someone's disruptive action, INEC gives such voters another opportunity to vote where their number will make a difference to the outcome of the election. The Commission has been applying this regulation in several polls. So there is nothing new here. This was implemented in Governorship elections in Imo (2011 and 2015), Anambra (2013), Taraba (2015), Kogi and Bayelsa (2015) and several other polls. Let us take a look at examples of these inconclusive elections.
Case Number (1)
IMO GUBER ELECTIONS 2015
Rochas Okorocha( APC): 385,671
Emeka Ihedioha( PDP): 306,142
The margin of Victory: 79,529
From the above, it is evident that the margin of victory was lower than the cancelled votes, a number that is enough to alter the balance. The Commission under Professor Attahiru Jega did the needful and promptly declared the elections inconclusive. Take note that the PDP, the ruling party then hailed the decision and applauded the decision of the INEC, calling it a “patriotic and sound decision “. Of course, APGA kicked against it. A re-run election was scheduled which APGA won. Recall that a similar situation had happened in 2011 in the same Imo between Rochas Okorocha and Ikedi Ohakim where INEC had declared the elections inconclusive because elections did not take place in some wards.
Case Number (2)
ANAMBRA SENATORIAL ELECTION 2011
Dora Akunyili( APGA):66,273
Chris Ngige ( ACN):65,576
In this instance, INEC declared the elections inconclusive because elections were cancelled in some wards with a voting population that was clearly higher than the margin of victory. A re-run took place which Akunyili lost.
Case Number (3)
KOGI GUBER ELECTION 2015
Abubakar Audu( APC):240,867
Wada Idris (PDP):199,514
Again, the margin here was less than the cancellations and was rightly declared inconclusive by the Professor Mahmood Yakubu led INEC. The point to note here is that the APC was by this time the ruling party and clearly had a huge lead but Yakubu still refused to budge under pressure by the ruling party to announce it as the winner. The PDP applauded it.
CASE NUMBER (4)
BAYELSA GUBER ELECTIONS 2015
Dickson ( PDP):105,748
Sylva ( APC):72,594
In the case of Bayelsa, a contraption of an election had taken place in Southern Ijaw which had Sylva winning the entire 120,000 votes in that area virtually, but this much-maligned Yakubu refused to accept it, declared it inconclusive and ordered a re-run because the number of registered voters were clearly more than the margin of victory. The PDP received this news well and celebrated it.
CASE NUMBER (5)
ANAMBRA GUBER ELECTION 2013
Obiano ( APGA):174,710
Tony Nwoye ( PDP):94,956
Again the Commission under Jega declared it inconclusive, and the PDP celebrated it as a bold move.
I have taken time to outline these cases to show that even where the margins were huge and when logic will suggest that the lead would be insurmountable, so long as it is mathematically possible for someone from a losing position to win an election, it was incumbent on the Umpire not to declare a winner. As regards the Osun election, the margin of victory which is about 353 is lower than the number of cancellations and could therefore not be definitive for a party to ask to be declared the winner. This position is anchored in our laws.
Where there is over voting, as it happened in one Polling Unit in Ife North, Section 53 of the Electoral Act requires the Commission to declare the result null and void, make no return on the election result and fix another date to conduct the election. This course of action is pertinent where the number of registered voters will make a difference to the outcome of the election. In Ife North, the total number of registered voters is precisely the same as the margin of lead in the election. How can INEC declare a winner under the law?
In fact, Sec. 53 (3) prohibits the Commission from declaring a winner for the election "until another poll has taken place in the affected area".
Beyond over voting, the election was disrupted in 6 other polling units. 3 in Orolu LGA with 947 registered voters, 2 in Ife South with 1,314 voters and 1 in Osogbo with 884 voters. If you add Ife North to it, there is a total of 3,498 voters. Meanwhile, the margin of lead is 353 votes. There can be no declaration of a winner under the circumstances.INEC has fixed Thursday 27th September 2018 for the re-run in 7 Polling Units across 4 LGAs and will then proceed to make a declaration. That is what the law says. We cannot begin to cherrypick when to apply rules.
My focus is on the processes and not on parties or candidates. Votes are counting in our elections. That's why we can a have a difference of 353 votes in a Governorship election involving 1.6m voters spread across 30 LGAs. The Commission showed no bias for the ruling party as some have alleged. Otherwise, there wouldn't have been a margin of only 353 votes and even so in favour of the opposition candidate. My take is that the Commission is being crucified for rightly being transparent. The Commission’s various moves to carry Nigerians along and to demystify elections in Nigeria is the reason why we are here today. Put succinctly, the multiple innovations that the Commission has put in place has made it possible for citizens to become aware of the trends and voting patterns during elections. In Osun, anyone who was interested had the results which were due to the form EC60-E that is usually pasted on the walls and that allowed the people to protect their votes. Could anyone have envisaged this in 2011? I recall an incident where the late Justice Katsina-Alu went to his community to vote. While still on the queue the Iwu led INEC had announced the result of the elections. This blatant rape of democratic tenet in that instant pissed off the late jurist.
Only a mischievous rabble-rouser will not appreciate the gains being made in our elections. Mahmood’s sin is that he accepted to serve under this president and for some, that is an unforgivable sin. But it is immaterial, Yakubu is on track and will not be distracted. Love the man or hate him, we must stand by truth and justice. Nothing less is demanded of genuine democrats.
Dr Chima Amadi is the Executive Director of the Centre for Transparency Advocacy and can be followed on Twitter on @AMADICHIMA