A good way to begin this write-up is to restate the relevant provisions of Section 24 of the Electoral Act, 2022 which deals with the conduct and postponement of elections in cases of emergency. First, Section 24(1) provides that registered voters should not be unduly disenfranchised by reason of emergency in an election. Emergency in this instance includes but is not limited to disruption, violence and breach of peace.
Section 24(3) of the Electoral Act provides thus:
“Where an election has commenced and there is reason to believe that there is or has been substantial disruption of election in a polling unit or constituency or it is impossible to continue with the election occasioned by threat to peace and security of electoral officials and materials, the Commission shall suspend the election and appoint another date for the continuation of the election or the process.”
The simple interpretation of the above is that where an election is being conducted and there is a substantial disruption or threat to peace and security in the course of the voting exercise at a polling unit, INEC shall suspend the election and appoint another date for the election in those specific polling units. In Ogun State, in polling units where there were widespread violence and substantial disruption, INEC indeed suspended elections but the Commission did not appoint another date for the continuation of the election exercise. Invariably, this is a gross breach of the Electoral Act because the word “shall” used in the above section does not give INEC any room for exercising discretion. It simply places INEC under a mandatory duty to suspend the election AND appoint a later date for a continuation of the voting exercise.
Under Section 24(4) of the Electoral Act, where there is a suspension of voting exercise in the above circumstances, there shall be no return for the election until another voting exercise is conducted in the affected areas. Clearly, in light of the widespread suspension of votes in many polling units in Ogun State, INEC ought not to return any candidate for the election until another poll is conducted in the affected areas.
Interestingly, Section 24(5) of the Act provides that: “Notwithstanding subsection (3), the Commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made.”
This implies that where the margin between the “winner” and “runner-up” is higher than the number of registered voters in the affected areas where votes are suspended or cancelled as a result of a disruption, violence, breach of peace and security, then, the Returning Officer can go ahead to declare a winner. It means the disruptions in those areas are not substantial. On the flip side, however, where the margin between the “winner” and “runner-up” is less than the number of registered voters in the suspended areas, then, a winner cannot be declared and a rerun in the affected areas is the appropriate thing to do. It means the disruptions in those areas are substantial.
By section 24(3) of the Electoral Act, the determinant factor of “substantial disruption” is a question of fact which shall be determined by the number of registered voters in the cancelled areas vis-a-vis the margin between the “winner” and “runner-up”. In simple terms, since the number of registered voters in the cancelled areas are so substantial that they outweigh the slim margin between the “winner” and “runner up”, a winner cannot and should not be announced by INEC.
In Ogun State, the margin between the winner and runner-up stands at 13,912 while the total number of registered voters in the cancelled polling unit stands at 33,750. Yet, INEC went ahead to make a declaration and return in fatal violation of the Electoral Act, 2022.
It is my candid view that INEC cannot in non-compliance with 24(1),(3),(4) and (5) of the Electoral Act, 2022 declare or return a winner in the Ogun Gubernatorial Election since the total number of registered voters in the “cancelled” or “suspended” areas is substantial and far above the slim margin between His Excellency, Prince Dapo Abiodun and Hon Ladi Adebutu. INEC’s declaration and return of Abiodun is not supported by law.
In Kebbi, the margin between the winner and runner-up stands at 45,278 while the total number of registered voters in the cancelled polling units stands at 91,829. Similarly, in Adamawa, the margin between the winner and runner-up stands at 31,249. The total number of registered voters in the cancelled polling units stands at 41,796. In compliance with Sections 24 and 51 of the Electoral Act, 2022, the returning officers in Kebbi and Adamawa States declared the election as inconclusive because the cancelled votes were more than the margin of victory.
So, why would INEC declare as inconclusive the election in Kebbi and Adamawa while it illegally returned a “winner” in Ogun State when the three states had similar legal circumstances? Could it be that what is good for the goose is no longer good for the gander?
At this point, INEC must come out clean to Nigerians on why it was selective in invoking its statutory powers under Sections 24 and 51 of the Electoral Act, 2022. With the greatest respect, I am constrained to hold the view that INEC is not neutral and should tell Nigerians where it truly stands.
It is a crying shame that INEC can descend so low to the point that it now cherry-picks where and when clear and unambiguous provisions of our laws are to be applied. INEC is either ill-advised, mischievous, insensitive or partisan. They must be called to order.
The saving grace for INEC at this point is to immediately review the purported declaration and return in Ogun State in accordance with Section 65(1) of the Electoral Act, 2022 as same was made it blatant violation of the provisions of the Electoral Act and other extant laws. That section of law empowers INEC to, within 7 days, review the declaration and return where the Commission determines that the said declaration and return was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.
For me, as a lawyer and citizen of this country, electoral injustice in a constitutional democracy is worse than a coup. It must never be tolerated under any guise whatsoever. I am very hopeful that INEC will heed to the voice of reason.
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