LEGAL ISSUE BRIEF - National Institute for Legislative Studies
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National Institute for Legislative and Democratic Studies
National Assembly
LEGAL ISSUE BRIEF
Issue 1, No. 7, October 2018
Diagnosing the Legality of Declaration of
Inconclusiveness of Elections in Nigeria
Dr. Samuel Oguche
It has been in public domain that the was 41,353, which was less than the number
governorship elections took place in Osun of registered voters in the polling units where
State on Saturday, the 22nd day of September cancellation of votes took place. This brief
2018. At the end of the voting and collation probes the legal regularity or otherwise of
of results, no return was made as the such declarations by the INEC and makes
Independent National Electoral Commission recommendations for legislative activism as
(INEC) declared the election inconclusive. a way forward.
This was as a result of the fact that, according
The Concept of Elections
to INEC, the number of invalid votes was
Election is a set of activities whereby
more than the margin between the candidate
members of a community choose their
of the Peoples Democratic Party (PDP),
leaders. The main purpose of an election is to
Ademola Adeleke, who polled 254,698
put people into positions of leadership, by
votes, and that of the All Progressives
way of making preferred choices from
Congress (APC), Ademola Adeleke, had available alternatives. At times, elections are
polled 254,698 votes; the margin between the
conducted to approve or disapprove of
two being 353 votes with 3, 498 cancelled important proposals made by the
votes. In consequence, INEC fixed government. Such an election is often
September 27 for a rerun between the referred to as a referendum or a plebiscite.
candidates of the two political parties. Prior
Also, an election can be conducted to endorse
to this period, INEC had, in 2015, declared
or reject the recall of a serving political office
the governorship election in Kogi State holder accused of non-performance or
inconclusive because the total number of misconduct. All these types of elections have
registered voters in 91 polling units, in 18
been held in Nigeria at one time or another.
local government areas, where election was
There are five types of elections, namely,
cancelled was 49,953, while the margin of general election, by-election, referendum,
votes between Prince Abubakar Audu of the plebiscite and recall. Each of them aims at
APC and Capt. Idris Ichalla Wada of the PDP
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endorsing or rejecting certain persons or citizens confer
public policies. Election is important, legitimacy and
whether local or national. The number of authority on those
voters who participate in an election vary who govern, making
from place to place. Election therefore it easier for them to
creates a level playing field for everyone who mobilize public
is interested in contesting for public offices. support and
Election processes help to reflect changing cooperation for the
opinions and social concepts about implementation of
citizenship and equality of individuals.1 development
programs. Free, fair
Election serves as a political leveler for all and credible elections
citizens, with the concept of all persons being are therefore a crucial
equal before the ballot box i.e. one man, one requirement for good
vote. It also brings together the various parts governance in any
of the country, and helps in the redistribution democracy.2
of the commonwealth, irrespective of
religious, social, political or other
differences. On the importance of elections,
it has been stated as follows: A Panoramic Survey of Statutory
Free and fair elections Provisions Relating to Inconclusiveness of
are the cornerstone of Elections
every democracy and
the primary The point must be made from the onset that
mechanism for the criterion which the Constitution of the
exercising the Federal Republic of Nigeria, 1999 (as
principle of amended) and the Electoral Act 2010 (as
sovereignty of amended) recognise for declaring a candidate
people. Through such duly elected is majority of lawful and valid
elections, citizens votes. To this end, the Constitution provides
participate in the that:
governance of their "A candidate for an election to
country by choosing the office of Governor of a
those who govern in State shall be deemed to have
the quest for been duly elected where, there
development. By being two or more candidates -
their choices, the
1 2
T Fotopoulos “The Meaning of Democracy”, < Report of the Electoral Reform Committee, Volume 1 Main
http://aceproject.org/ace-en/topics/ve/vea/vea01> accessed Report, 1 (2008)
December 2 2015
2
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(a) he has the highest number
of votes cast at the election; A careful perusal of the provision of section
and 179(1) of the Constitution reveals that it does
(b) he has not less than one- not admit of other conditions for declaring a
quarter of all the votes cast in candidate winner and returning him duly
each of at least two-thirds of all elected. In addition to the above, the Electoral
the local government areas in Act further provides that:
the State.”3 If the Tribunal or the Court
determines that a candidate
In addition to the above, the Constitution who was returned as elected
vests INEC with the power to, by rules or was not validly elected on the
otherwise, regulate its own procedure or ground that he did not score
confer powers and impose duties on any the majority of valid votes
officer or authority for the purpose of cast at the election, the
discharging its function.4 Pursuant to the Election Tribunal or the
above provision, INEC issued Manual for Court, as the case may be,
Election Officials 2015 (Updated Version) shall declare as elected the
which it relies on in conducting elections. candidate who scored the
The Manual provides as follows: highest number of valid votes
The State cast at the election and
Collation/Returning Officer satisfied the requirements of
for the Governorship shall: the Constitution and this
Where the margin of win Act.6
between the two leading
candidates is not in excess of A combined reading of the above statutory
the total number of registered provisions reveals that some votes would be
voters of the polling unit(s) unlawful and invalid. Consequently, where
where elections were votes are cancelled or invalidated for any
cancelled or not held, decline reason howsoever, including for being
to make a return until another invalid and unlawful, such votes are
poll has taken place in the immediately and automatically cancelled,
affected polling unit(s) and deducted and consigned to the dustbin of
the results incorporated into history.7
an new Form EC8D and
Nature of Voided Votes and Judicial
subsequently recorded into a
Attitude
new form EC8E for
5
Declaration and Return.
3
Section 179(2) 7
Lawyard: “Inconclusive Osun Poll: Ozekhome Accuses INEC of
4
Section 160(1) Murdering Democracy”, https://www.lawyard.ng/inconclusive-
5
Chapter 3, paragraph 3.11, Step 14 osun-poll-ozekhome-accuses-inec-of-murdering-democracy/
6 Section 140(3) (Accessed on 14/10/2018)
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Only votes that INEC had adjudged functions. Sections 73 and
illegitimate due to irregularities should be 153 of the Electoral Act,
voided and were voided and cancelled. This 2010, (as amended), contain
cancellation and voidance of illegitimate similar provisions to ensure
votes effected all the political parties, not just the proper discharge of its
APC and PDP, but especially Omisore's SDP, functions. Section 73
whose two strongest fortes in Ife axis were empowers the Commission
badly affected. Such voided votes are ignored to publish in the Gazette
and unreckoned with, for they are a non guidelines for elections
sequitur. In Osunbor v Oshiomhole8, which shall make provisions
cancelled votes had been counted and added for the step by step recording
to PDP/Osunbor's scores. The courts, up to of the poll in the electoral
the Supreme Court, held that when votes are forms as may be prescribed.
cancelled, they are not reckoned with in Section 153 empowers the
determining the outcome of such an election. Commission to issue
The courts thereafter deducted the regulations, guidelines or
invalidated votes and this gave victory to manuals for the purpose of
Oshiomhole in the hotly contested election. giving effect to the
To avoid disenfranchisement of eligible provisions of the Electoral
voters, only votes in areas where election did Act and for its
not hold at all are considered for the purpose administration. The above
of calculating total votes. provisions give statutory
backing to the Manual as a
Supremacy of the Constitution and Nullity subsidiary legislation and
of Inconsistent Provisions where it is found to be
relevant, its provisions must
The issue of validity of INEC Manual for
be invoked, applied and
Election Officials came up for determination
enforced. In the instant case,
in Faleke v. INEC where the Supreme Court
having discovered electoral
gave approval to the usage of Manual for
malpractices in 91 polling
Election Officials in conducting a
units in the State, it was
supplementary election as follows:
proper for the 1st respondent
By virtue of section 160(1) of
(INEC) to consult and apply
the 1999 Constitution, INEC
the provisions of its Manual
has the constitutional power
to determine the next course
to regulate its own procedure
of action in the
or confer powers and impose
circumstances. Resort to its
duties on its officers for the
manual in the circumstances
purpose of discharging its
8
(2007) 18 NWLR(part 1065) 32
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did not amount to a flagrant the Lokoja/Kogi Federal Constituency rerun
disregard of the supremacy of election of August 11 2018 inconclusive on
the Constitutional provisions similar facts, where the number of cancelled
contained in section 179(2) votes which stood at 19,000 exceeded the
of the Constitution.9 difference between the two candidates in the
election which stood at 12,000 and the
The above pronouncement of the Supreme candidate of the APC, Haruna Isah was
Court is an affront on the Supremacy of the declared winner without declaring the
Constitution. The provision of section 179 election inconclusive. In that election the
exhaustively guides INEC in making a return candidate of the APC polled 26,860 while the
at a governorship election. It must be restated candidate of the PDP, Engr Bashir Abubakar
here that the provisions of the Electoral Act polled 14,845 votes to come second, a total of
and the INEC Guidelines are subject to the 19,960 votes were cancelled as a result of
overriding authority of the provisions of the violence in some polling units in two local
Nigerian Constitution, which is supreme. In government areas.12
the words of Ozekhome, SAN, “the
Constitution is the Kabiyesi, Eze and Emir, in Error of the Supreme Court in Validating
the hierarchy of Nigerian laws. All others are the Relevant Provision of the INEC Manual
like Bales and Chiefs that must bow before Juxtaposed with International Judicial
this king.”10 The provisions of the Attitude
Constitution therefore clearly override the
provisions of the Electoral Act and any It is obvious that the provision of the INEC
guidelines issued by INEC, by virtue of Manual reproduced above is inconsistent
section 1(3) of the 1999 Constitution. They with section 179(2) of the Constitution, the
are consequently null and void to the extent former having imported strange provisions
of the inconsistency. This constitutional that are contrary to the express provisions of
provision on the supremacy of the the latter. It is one thing to have powers to
Constitution has received judicial blessing in make subsidiary legislation and it is another
a plethora of authorities such as the thing to make such subsidiary legislation
celebrated case of Nyesom Wike v. Dakuku within the ambit of the powers so granted. On
Peterside11. this premise, the Supreme Court erred in not
declaring the said provision of the Manual
The Perplexity of Double Standard by INEC void. In United States v. Two Hundred
Barrels of Whisky13 , the parent Act provided
Contrary to the position taken by INEC in the for admitting duty-free animals specially
2015 governorship election in Kogi State and imported for breeding purposes. The
the recent Osun election, it failed to declare regulation made under the Act required the
9
Per Kekere-Ekun, JSC at pp. 120-121, paras. F-G 2018, https://www.vanguardngr.com/2018/08/bye-election-inec-
10
Ibid declares-apc-winner-of-lokoja-kogi-fed-constituency/ (Accessed on
11
(2016) 7 NWLR (part 1512) 574 16/10/2018)
12
Obahopo, B.: “Bye Election: INEC declares APC winner of 13 95 U.S. 571 [24 L.Ed. 491]
Lokoja/Kogi Fed Constituency”, Vanguard (online), 12th August,
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animals to be of a superior stock if they were thereunder could not be held to be
to be admitted to be duty-free. The court held unconstitutional. Rejecting the argument the
the regulation to be ultra vires as the parent Supreme Court held that even though a parent
Act included all animals while the regulation Act might not be unconstitutional, an order
confined its operation to animals of a made thereunder can still be unconstitutional
particular stock alone. Similarly, in Indian and can be challenged as violative of the
Council of Legal Aid & Advice v. Bar provisions of the Constitution. It has long
Council of India14 , the Bar Council of India been established that where the Constitution
by Resolution No.64/93 dated 22nd August, sets the condition for doing a thing, no
1993 added Rule 9 in Chapter III of part VI legislation of the National Assembly or of a
of the Bar Council of India Rules which State House of Assembly can alter those
resolution was gazetted on 25th September, conditions in any way unless the Constitution
1993. The said newly added rule was to the itself as an attribute of its supremacy so
effect that "A. person who has completed the authorises.16
age of 45 years on the date on which he
submits his application for his enrolment as Recommendations
an advocate to the State Bar Council shall not
In view of the forgoing analysis, the
be enrolled as an advocate." All the State Bar
following measures are recommended:
Councils in India were duly informed about
the insertion of the said rule. The legality and a. The National Assembly should take
validity of the rule was challenged as it was bold steps to amend the Constitution
contended that it was inconsistent with by expressing providing against
Articles 14, 19(1) (g) and 21 of the importation of strange requirements
Constitution and Section 24 of the Advocates for making a return at elections
Act, 1961. The Supreme Court of India found outside the provisions of the
struck down the new Rule 9 as ultra vires the Constitution.
Act and opposed to Article 14 of the
Constitution. This same line of reasoning was b. There should be a provision in the
adopted in Narendra Kumar v. Union of Electoral Act in line with the
India15, where the validity of the Non- provisions of the Constitution, stating
Ferrous Metal Control Order, 1958 issued clear requirements for making a
under section 3 of the Essential Commodities return. This will automatically render
Act, 1955 was challenged as impotent the provisions of the INEC
unconstitutional. The petitioners had not Manual.
challenged the validity of the parent Act. It
was argued that if the enabling Act was not c. There should be continuous legal
considered unconstitutional, the rules made education for judges, especially on
international practices, to enhance
141995 SCC (1) 732 16 INEC v Musa (2003) 3 NWLR (Pt.806) 72
15 1960 AIR 430
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their capacity for justice dispensation wrong by all standards. First, it offends the
to minimise errors. relevant constitutional provisions cited, and
second, it is amounts to self-contradiction on
d. INEC should revise its Manual and the part of INEC since not all registered
bring it in line with the provisions of voters can vote. Under paragraph 2.0. at page
the Constitution, especially in view of 8 of the Manual, only voters with PVCs are
the unveiled contradictions. eligible to vote. What is the essence of
reckoning with the total number of registered
Conclusion
voters when it is not all registered voters that
It is already a notorious fact in Nigeria that are eligible to vote but only those with their
only registered voters who have collected PVCs? The inconsistency of INEC in the
their Permanent Voters Cards (PVCs) are application of the Manual calls for a rethink
eligible to vote. Reliance on Chapter 3 on the part of the election umpire as it breeds
paragraph 3.11 step 14 of INEC's Manual is feelings of injustice among the citizenry.
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