Osun Election: Reviewing the Judgement of the Tribunal and the Facts of the Case

Ebenezer Makinde
20% Complete
 29-Mar-2019

Having avidly followed the unfolding of the 2018 governorship election in Osun State both as a direct participant in the electoral processes while serving in the state as a Corp Member and as a Nigerian with profound interest in Nigerian politics, I would like to judiciously use the opportunity offer by this platform to express my view on the ongoing drama, melodrama in Osun State, and also present the facts of the issues surrounding the election especially following the declaration of Senator Adeleke as the duly elected governor of the state by Election Tribunal sitting in Abuja on March 22, 2019.

The said election was held precisely on September 22, 2018. It was largely contested between the incumbent party in the state, the All Progressive Congress (APC) with Alhaji Gboyega Oyetola as the standard bearer, Senator Ademola Adeleke of the Peoples` Democratic Party (PDP), Iyiola Omisore of the Social Democratic Party (SDP) and Moshood Adeoti for the Action Democratic Party (ADP).

As a matter of fact, the election results released by Independence National Electoral Commission (INEC) revealed that the election was an end to end battle between Senator Adeleke Ademola of the PDP and Alhaji Gboyega Oyetola of the APC. The September 22, 2018 election was won by the PDP with 254, 698 votes against 254, 345 votes for the APC, with a difference of 353 votes.

The Rerun Election and the INEC Electoral Guidelines

The Vice Chancellor of Federal University of Technology, Akure (FUTA), Professor Joseph Fuwape who was the returning officer instead of declaring Senator Ademola Adeleke of the PDP the winner of the election declared the election as inconclusive citing section 44 of the INEC Guidelines and Regulations (2015) which states quite explicitly that “where the margin of the win between two leading candidates is not in excess of the total number of registered voters of the polling unit (s) where elections was cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit (s)… and subsequently recorded… for Declaration and Return” 

As far as the INEC electoral guidelines is concerned no candidate should be declared winner of an election if the difference between his votes and that of his closest opponent is less than the number of registered voters in any polling units where elections was not held or elections was cancelled due to any reasons including violence. A literal and direct application of the electoral law shows that the returning officer was right to have declared the election inconclusive and ordered for the rerun.

The Nigerian Constitution, the Electoral Guidelines and Alternative Point of View

The decision of INEC and of course, the returning officer during the 2018 governorship election has been said to be illegal.

The basic argument is that such decision is inconsistent with the provision of the 1999 Constitution of the Federal Republic of Nigeria. Section (79), Subsection (2) of the Constitution provides that “a candidate for an election to the office a Governor of a State shall deemed to have been duly elected where, there being two or more candidates… he has the highest number of votes cast at the election; and 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”

The argument is that, since the Constitution of the Federal Republic of Nigeria is supreme above all other laws or guidelines whatsoever in the land, Senator Adeleke Abiola should have been declared the winner of the September 22, 2018 elections in Osun State.

Therefore, after the elections has been declared inconclusive, the general confusion in the minds of the common people on the streets and that of the legal luminaries was whether Article 44(n) of the INEC electoral guideline of 2015 is consistent or inconsistent with the provision of the Constitution which is supposedly supreme above all other laws of the land.

My position therein is that in fact, the provision of the 1999 Constitution, Section 179 (2) and Article 44 (n) invoked by INEC to render the election inconclusive are not related whatsoever. In the real sense of the words, section 179 (2) relates to a completed electoral process without glitches like cancellation of results due to problem with electoral materials or violence.

While the INEC provisions in the Guidelines simply relates to elections that cannot be said to be completed in order to ensure a fair and credible electoral outcomes.

It is important to note that the Nigeria`s Constitution as we have it today does not make any purposeful and direct provisions on cancelled elections which can be said to be one of the its many lacunae. So there is nothing particularly wrong if INEC resolves to fill this lacuna with her provisions by the virtue of being an independent body saddled with the responsibility of conducting elections in Nigeria.

Also, the alternative scenario to not having that provisions of the electoral law or INEC guidelines which says that no candidate should be declared winner of an election if the difference between his votes and that of his closest opponent is less than the number of registered voters in any polling units where elections was not held or elections was cancelled due to any reasons including violence should be seriously taken into consideration.

Imagine as a contestant in an election there was massive violence in your stronghold which does not allow for the conduct of elections and you ended up losing the election by a margin which you could have recovered from your stronghold.

Just imagine. More so, absence of such electoral provision like Article 44 (n) of the electoral guidelines would make Nigeria`s election the more volatile and violence prone. What politicians would need to do at that moment is to destabilize the stronghold of their opponents to such alarming extent that election cannot be held.

The Judgement of the Tribunal

At the end of the rerun election which was held on 27th of September, 2018, the APC candidate, Alhaji Gboyega Oyetola won the election with a total 255, 505 votes, while Senator Ademola Adeleke scored a total of 255,023 votes and subsequently, Gboyega Oyetola of the APC was declared the winner of the election with a final margin of 482 votes.

Reacting to this development, the PDP took the case to the Electoral Tribunal and the final hearings and judgement were held on March 22, 2019. The Tribunal in majority ruling nullified the election of the Governor Gboyega Oyetola and declared Senator Ademola Adeleke as the duly elected governor of the state.

The judgement was made firstly on the ground that the INEC official (the returning officer) who declared the September 22, 2018 election inconclusive lacked the power to do. Secondly, the Tribunal held that there was substantial non-compliance with the electoral act in the conduct of the September 27, 2018 rerun election.

The Tribunal however argued that the petitioner (PDP) had failed to prove the allegations of corrupt practices and disruption of voting and disenfranchisement of voters during the September 27, 2018 rerun election. The Chairman of the Tribunal expressly dissented with the majority ruling. In his minority judgement, Ibrahim Sirajo (the Chairman of the Electoral Petition Tribunal) discarded the petition of the Senator Adeleke for lack of merit. But of course, as expected, the majority judgement takes precedence.

In making such judgement, the Tribunal clearly supports the position that the 2,029 votes won by the APC and the 1,246 votes won by the PDP during September, 27 rerun elections were illegal due to non-compliance with the electoral law and hence, the nullification and the declaration of Senator Ademola Adeleke of the PDP as the duly elected governor of the State of Osun.

Perhaps more important is that the Tribunal argued vehemently that some certified true copies of Forms EC8A (official election result sheet at the polling unit) were altered in secrecy (were not known to both parties or one of the party) since figures in the duplicate pink copies that are usually issued to the party agents at the end of the polls were different from original copies of Forms EC8A presented by INEC during the hearing.

Which could only mean two things. Firstly, the election results of the rerun were altered by INEC to favour one of the parties. Secondly, there were mistakes on the Forms EC8A prepared by the Presiding Officers of the affected polling units and of which the presented pink copies at the Tribunal were already given to the parties’ agents. In other words, some of these genuine alterations are usually done at the RAC centres where the parties agents might not be present to note the alterations in their own duplicate copies. This of course is usually due to the mistake or incompetence of the Presiding Officers and other electoral officials deployed to that polling units.

But INEC during the Tribunal did not argue along this line, which means that the Tribunal based on the available facts ought to have ruled that the supplementary elections was rigged due to the above inconsistencies. But the Tribunal only declare the supplementary elections null and void based on its non-compliance with the electoral law and the fact that the September 22, 2018 elections was cancelled in seven polling units by an unauthorized electoral officials of INEC.

If anything, the supplementary elections ought to have been declared null and void by the Tribunal (based on their non-compliance judgement) and more importantly, the election results ought to have been declared cancelled simply because there was evidence of rigging.

What the Electoral Act Says

From the argument before now, it is obvious that the Tribunal in her majority ruling had declared the supplementary elections of September 27, 2018 null and void due to its non-compliance to the Electoral Act of 2010 as amended. According to Section 69 of the 2010 Electoral Act, “In an election to the office of the President or Governor, whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the number of votes cast for each candidate and subject to the provisions of section 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.”

The direct application of this part of the 2010 Electoral Act shows that INEC ought not to have declared the election inconclusive, hence Mr. Adeleke should have been declared as the winner of the election.

However, further probing of the 2010 Electoral Act Especially Section 53 subsection (1,2,3 and 4) presents another confusion to the whole issues.

According to Subsection (2) in Section 53, “where the votes cast at an election in any polling unit exceed the number of registered voters in that polling unit (case of over voting or rigging) the result of that election for that polling unit shall be declared void by the Commission and another election may be conducted at a date to be fixed by the Commission where the result at the polling unit may affect the overall result in that constituency.”

Further to this, subsection (3) of the same Section (53) says that where an election is nullified in accordance with Subsection (2) of this Section (53) there shall be NO return for the election until another poll has taken place in the affected areas.

The provisions in Section 53 clearly support the decisions of the INEC to declare the rerun held on 27th of September, 2018. Of course, while INEC did not specifically mention violence as the reason for a rerun election in Section 53, they did mention over-voting and election rigging as the reason that such supplementary elections can take place.

And it would be recalled that some of the affected polling units in the initial September 22, 2018 governorship election was due to cases of electoral rigging and over voting.

For example, according to returning officer when mentioning why the election was declared inconclusive, “At Oyere in Ife North LGA, we also has cancellation of election. Fifty-one people were accredited but there were 200 votes that were cast, with that, there was cancellation due to irregularities of over voting.”

The Nitty-gritty of the Tribunal Judgement and What Need to be Done

Though there are enough confusions or reasons to think that INEC was wrong to have declared the September 22, 2018 election inconclusive especially considering the provisions of the Nigerian Constitution in Section 179 (2), Section 69 of the INEC 2010 Electoral Act. Nonetheless, the unambiguous provisions of the 2015 electoral guidelines Article 44 (n) and Section 53 (1,2,3,4) of the Electoral Act shows that INEC may be right after all.

Also the recent judicial precedents in Kogi State in 2015 and Bauchi state in 2018 where similar scenario like this took place further confirm that INEC was right to declare the initial election inconclusive and hence the rerun election. At the moment, the APC has said they would appeal the decision or must have even appealed the judgement of the Tribunal which makes Osun State in coming days the cynosure of all eyes. If the previous judgment of the Supreme Court is anything to go by, the PDP has an uphill task to retain the judgement of the electoral tribunal.

As far as this writer is concerned, the best thing that can be done by the PDP is to prove their case that the supplementary election of September 27, 2018 was riddled in controversies, cases of election rigging, voters` intimidation and harassment.

Of course, the PDP did try to prove this case during the hearings at the Tribunal that declared the rerun null and void and returned Mr. Adeleke as the duly elected governor of the State of Osun, but was surprisingly overruled by the Tribunal even when the Tribunal had evidence and concluded that figures in some of the Forms EC8A presented by INEC were not in tandem with the duplicate pink copies given to the party agents during the supplementary election (an evidence of alteration or riggings).

Also, the PDP needs to provide enough evidence to show that the cancellation of the election results in the seven polling units which necessitated the rerun was not needed as it was not done by the presiding officers of these said polling units but by the returning officer which clearly makes it illegal. It would make more sense if they can even show prove that the returning officer has been influenced by political parties to cancel the election results in these seven polling units.

The only thing needed to be done by INEC and of course the APC is to prove that the supplementary elections was in fact legal and according to the law and more importantly that the Returning Officer, Prof. Joseph Fuwape has not acted ultra vires in cancelling the elections in the affected polling units.

As a matter of fact, the Tribunal had declared the supplementary election illegal on the ground that the returning officer had no power to cancel election held in seven polling units at the September 22, 2018 poll which led him to call for a rerun. Going through the comprehensive judgement of the Tribunal, I discovered that INEC having been given opportunities throughout the period of the hearings and before the judgment of the Tribunal was not able to prove that the returning officer has the power to canceled the election in affected polling units.

Meaning that INEC was not even able to defend a substantial part of the case (whether the returning officer has the power to cancel election and order for a rerun) upon which the judgement of the Tribunal to upheld Mr. Adeleke`s victory was based. It was held by the Tribunal that it is in fact the Presiding Officer (PO) who has the right to cancel the election in his or her polling unit and write a report thereafter which will be submitted to the Ward Collation Officer and thereafter, the State Collation Officer/State Returning Officer.

However, in the case of the failure of INEC (specifically INEC has the burden of evidence to justify the cancellation and ordering of the rerun at those polling units) and the APC during the hearings to provide evidence that the elections in each of these affected polling units on September 22, 2018 was cancelled by the Presiding Officers of these polling units which thereafter followed the processes laid down by the Electoral Guidelines to move to the State Collation Officer, the Returning Officer was wrong to have cancelled the results of these affected polling units which formed the basis on which the election was declared inconclusive and the rerun conducted.

The contending issue therefore, was that truthfully the INEC guideline did give power to declare a rerun to the State Returning Officer whenever the margin of win is less that the registered voters in the units were elections was cancelled, the same guideline did not in any way empower the State Returning Officer to cancel the elections results like the case of the affected polling units.

Simply put, the Returning Officer`s power to make decision A (declare a rerun when so and so happens) is dependent on the powers of the presiding officer to make decision B (cancel the result of election in his polling if there was evidence of irregularities). Therefore, the State Returning Officer in the 2018 governorship election in Osun State in person of Prof. Joseph Fuwape overstepped his boundary and acted ultra vires.

But why was INEC unable to provide evidence that the presiding officers of each of these seven polling units had written reports relating to their cancellation of results or voting in their polling units? Could it be that these presiding officers were not competent enough and did not know they needed to write reports if there is need for them to cancel the result of elections or voting in their polling units? All Nigerian awaits the unfolding of the drama in Osun State, but in the meantime, until further evidence has been presented by INEC expectedly in the Appellate Court or the Supreme, the judgement of the Election Tribunal on March 22, 2018 was on point.

However, those who quote Section 179 (2) of the 1999 Nigerian Constitution and Section 69 of the 2010 Electoral Act to support the reasons why the rerun was illegal are not being sincere enough.

Can any of them accept an election results where the winning margin is far less that than the total registered voters in polling units where elections were cancelled due to different reasons not limited to violence and over voting, and which was no fault of them? In my opinion, it is Section 179 (2) of the 1999 Nigerian Constitution and Section 69 of the 2010 Electoral Act that need to be declared inconsistent with principle of justice and fairness. Besides, these sections did not say anything about what should be done in scenario where there was cancellation of elections which make them ambiguous to say the least. 

On the other hand, there is need for further probing of the reasons for the cancellation of the election results in the seven polling units which influenced the decision of the returning officer to declare the September 22, 2018 inconclusive. There is need to know if the elections in each of these seven polling units were genuinely cancelled and not that the cancellation was influenced by political parties or power that be just to make the outcome of the election favour a particular candidate and political party.  The Appellate Court would need to ascertain this fact before any correct, fair and just judgment can be made on the 2018 governorship election in Osun State.

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