|Firsts Baba Isa|
24 September 2018
I will get straight to the point.
Have you seen the Press Statement issued by INEC?
INEC did not declare elections inconclusive in Osun State because of invalid and/or cancelled votes. Read this again. In short, let me repeat it: INEC did not declare elections inconclusive in Osun State because of invalid and/or cancelled votes.
Therefore, any legal analysis you read that draws it’s premise from the fact that INEC declared elections inconclusive because of invalid or cancelled votes is misleading and non sequitur.
I’m writing this because a lot of persons have asked me what the true legal position is on the issue. If you are interested in the true legal position, I will do my best to lay it out here very briefly. But if you are interested in the partisan and sentimental positions, I’m sorry I can’t help you with that.
I have looked at the statement issued by INEC and the reasons for declaring the election inconclusive contained therein and I have also looked at the Electoral Act and the Constitution.
According to the Constitution a candidate must score the highest votes at the election to be declared winner. And that same Constitution states categorically that another law, the Electoral Act, must be followed when it comes to elections and the electoral processes.
The Electoral Act defined instances where final election result will not be declared until there is another election or supplementary election.
According to Section 26 of the Electoral Act an election can be postponed or shifted for security reasons and other emergencies. Section 53 also allows INEC to postpone elections if there is over voting in a polling unit.
In both scenarios captured by the Act, the number of registered voters must be such that it can change the outcome of an election. This is the position of the law.
Now, the pertinent question is that, is the reason (s) given by INEC for declaring the election inclusive in tandem with sections 26 and 53 of the Electoral Act? Let’s see these reasons:
1. In Osogho LGA, voting did not take place in 1 polling unit due to security reasons; 884 voters where affected. Note that the number of these votes can change the outcome of the elections since PDP is leading with just 353 votes.
Also in Orulu LGA, elections did not hold in 3 units due to disruptions; 947 voters were prevented from voting. Section 26 of the Electoral Act, right there.
2. In Ife North LGA, INEC stated that there was over voting in 1 polling unit; 353 voters were affected. This is the exact vote difference between the two top contenders; enough to swing the pendulum of the elections. Section 53 of the Electoral Act right there.
3. In Ife South LGA, INEC stated that there was malfunction of SCR in 2 polling units and 1314 voters were affected. This number is indeed capable to swing the outcome of the elections.
However, this reason is alien to the Electoral Act. Malfunctioning of SCR is not captured under sections 26 and 53 of the Act. Elections cannot be declared inconclusive because card readers failed to function. There is nothing in the law that says elections can’t go on without card readers.
In any case, as you have seen, the reasons given by INEC (apart from one) are legally sufficient to declare an election inconclusive. Whether they gave these reasons sincerely or otherwise is not within the purview of this write up. I don’t want to mix law with speculation.
So the next time you see a long analysis about how INEC declared the Osun elections inconclusive because of invalid or cancelled votes, just know that someone is trying to mislead you. All those beautiful legal analysis comes to nothing if it is trying to prove that INEC is wrong for declaring elections inconclusive because of CANCELLED VOTES.
May God save Nigeria and Nigerians.
First Baba Isa (FBI) is a Legal Practitioner and writes from Abuja.