OSUN: The position of the Law by Constitutional Lawyers

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Yesterday, lawyers reacted to the seeming conflict between the provisions of the constitution and the electoral guidelines in the declaration of a winner in an election.

Lawal Pedro, SAN:

What politicians are doing is simply politicizing an issue that has been settled by law. The INEC guideline which no political parties has challenged was made pursuant to the electoral act. No political party has gone to court to challenge that guideline. The guideline stipulates that when the number of canceled votes are more than the difference between the two leading parties, then the election is inconclusive. In the case of Osun election, INEC simply applied its guideline and declared the election incolclusive.

Mr Solomon Bob, Former special assistant to Governor Nyesom Wike of Rivers State:

INEC’s declaration of the gubernatorial election in Osun State as inconclusive is akin to attempting to reinvent the wheel. It constitutes an audacious assault on the Constitution of Nigeria, particularly section 179(2).

It also violates the clear provisions of section 69 of the Electoral Act. A reading of these provisions would show that for purposes of determining a winner in an election, only lawful and valid votes matter, not cancelled or invalid votes.

INEC cannot rely on its guidelines or any subsidiary legislation to override the provisions of Nigeria’s supreme law – the constitution. INEC is not an elections tribunal and cannot perform the functions of one by delving into cancelling and uncanceling votes.

When votes are cancelled they remain cancelled and only a tribunal or court can decide otherwise. As the law stands, a winner has already emerged in the Osun polls and that’s the candidate who met the requirements of spread and plurality in lawful votes cast – Senator Ademola Adeleke.

Monday Ubani, Former 2nd Vice-President, NBA:

The electoral act gives INEC the power to enact an electoral guideline for every election. So whatever INEC has done in Osun state is in accordance with the electoral act. Part of the guideline stipulates that whenever an election is conducted and concluded, and there are areas where result are canceled, INEC reserves the power to determine if the differentials between the two leading candidate or parties would have been affected by the canceled votes. If the number of registered voters in the areas where they have canceled result or where election did not hold is more than the marginal figure between the two leading candidates, that election must be regarded as inconclusive. The number of registered voters in the four polling unit where elections were canceled is more that 353 which is differential.

It is a different thing entirely if one has to determine whether INEC exercised its discretion properly in canceling election in the four polling units. INEC could have canceled those elections deliberately, they could have done it with ill motive. They would have also done with good intention having observed that election never took place in those places. It can tell where INEC took the decision it took but all I can say it the it acted within the law.

Dele Oloke, Chairman, NBA Ikeja Branch:

It is a point of fact that the Supreme Court in Faleke and Abubakar Audu has confirmed that INEC can declare an election inconclusive. I must say that we Nigerians must not sleep with our eyes close when an arbitrary power is given to an electoral body that is a creation of the constitution, to abuse the process of our elections. For me, it is too late for anybody to cry. How can we put an election body in place and still give it power to declare an election it conducted as inconclusive. Don’t forget that INEC registers are their own creation.

Why must we have this kind of problem especially when you realize that the number of registered voters does not represent the number of voters that have PVC. You cannot compel anybody to come and vote. Why must INEC be allowed to have such powers to say because the margin between A and B is ineligible then the election is inclusive. What this means is that all INEC need to do the bidding of any political party, is just to declare elections in some polling units inconclusive.

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