On Saturday September 22, the people of Osun State went to the polls to elect a governor. At the end of the day, the candidate of the People's Democratic Party, PDP, Senator Ademola Adeleke, polled the highest number of votes; enough to have been declared the winner of the election. But the electoral umpire, the Independent National Electoral Commission, INEC, declared the election inconclusive. It gave the reason for that as the number of cancelled votes being higher than the margin between the two top contenders. It went ahead to fix Thursday, the 27th of September as date for a rerun. This position was as at press time.
Since that announcement, however, many interpretations have been given to it, with the majority view being that INEC erred in not declaring the PDP candidate winner.
According to an interpretation given to it by renowned lawyer, Mike Ozekhome (SAN), the INEC's stand was in violation of the Constitution of Nigeria which, he argued, superseded the Electoral Act, which itself, only recognised lawful and valid votes in declaring a candidate winner of an election.
According to him, this presupposes that some votes would be unlawful and invalid and consequently, where votes are cancelled or invalidated for any reason howsoever, including for being invalid and unlawful, such votes are immediately and automatically cancelled, deducted and consigned to the dustbin of history.
In any case, he still argued, it was not wholesale results in the election that were voided and cancelled, but only votes that INEC had adjudged illegitimate due to irregularities.
He said that the cancellation and voidance of illegitimate votes affected all the political parties; not just APC and PDP, but especially, Iyiola Omisore's SDP, whose two strongest fortes in Ife axis were badly affected.
He further cited Section 179(2) (a) (b) of the 1999 Constitution, which he described as the grundnorm and supreme law of the land, as being crystal clear and unambiguous that Adeleke and PDP had won and met the electoral requirements to be formally declared winners of the Osun state election.
He said, 'It provides: "A candidate for an election to the office of a 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".
'Adeleke satisfied this provision. In Osunbor v Oshiomhole (2007) 18 NWLR (part 1065) 32, cancelled votes had been counted and added to PDP/Osunbor's scores. The courts, up to the Supreme Court, held that when votes are cancelled, they are not reckoned with in determining the outcome of such an election. The courts thereafter deducted the invalidated votes and this gave victory to Oshiomhole in the hotly contested election.
'To avoid disenfranchisement of eligible voters, only votes in areas where election did not hold at all are considered for the purpose of calculating total votes.'
We also recall that in the aftermath of the 2010 gubernatorial election in Anambra State, the courts had also ruled that voided votes did not count in the case between Chris Ngige and Peter Obi.
In the light of the above, we are inclined to go with the argument of the respected SAN. Cancelled votes are void and should not be countenanced in the result of an election, being that those votes were voided due to perceived irregularities. But in the event of voting not being held in some places, INEC will be correct to withhold the result of an election if the total votes expected in those areas are likely to affect the result already had. That was not the case in Osun State.
We therefore join those who reprimanded INEC for its action in declaring the election inconclusive. This only serves to heighten fears across the country ahead of the general elections next year that INEC will not be an unbiased umpire, especially since inconclusive results seem to apply in cases where the ruling All Progressives Congress, APC, is not favoured. This is not an encouraging sign for the country's democracy which has not fared well under President Muhammadu Buhari.
Whatever must have happened between September 22 and the time we went to press, Nigerians certainly deserve a better deal from INEC and the ruling party.