Tuesday, September 25, 2018 08:25AM / OpEd By Reuben
Abati
What
is going on in Osun state right now is nothing short of political theatre. It
is keeping us all entertained, but it has also turned so many observers into
emergency lawyers. The Independent National Electoral Commission (INEC)
declared the Osun Gubernatorial election of September 22 inconclusive and has
ordered a supplementary election at seven polling centres in four local
councils on September 27. Many Nigerians are taking a keen interest in
the Osun election. This should not be surprising. Every election season in
Nigeria, what the law says or does not say is the concern of all kinds of
experts who suddenly discover the country’s Constitution and call it out into
action as they deem fit. In the last 48 hours, the Nigerian public space has
been suffused with relevant sections of the 1999 Constitution on elections,
with the more popular references being Sections 1(2), 69 and 179 (2) of the
Constitution and Sections 68 (c), 69 and 153 of the Electoral Act 2010 (as
amended). Many interested parties have also been dredging up decided cases from
the past. It is really entertaining to see both lawyers and non-lawyers alike
referring to precedents from previous elections in Kogi, Bauchi, Edo, Katsina
states, and court rulings in Osunbor vs Oshiomhole, Nwobasi vs Ogbaga and
2 ors., and Faleke vs INEC.
What
are the issues? Issue 1: whether INEC has acted rightly within the purview of
the law by declaring the Osun Gubernatorial election inconclusive? Issue 2:
whether a candidate who won a simple majority and one-quarter of the votes in
two-thirds of the local councils in the state as required under Section 179(2)
of the 1999 Constitution, can be denied a prompt declaration on the grounds
that the margin of his victory is lower than the number of cancelled votes?
Issue 3: whether the guidelines provided for in the Electoral Act 2010, and the
INEC Manual for Election officials, can override the Constitution? Issue 4:
whether INEC has the powers to declare an election inconclusive? Issue 5:
whether Senator Ademola Adeleke having been the first to go past the post in
the Osun Gubernatorial election of September 22 should have been declared
winner of the election?
Opinions
on the matter are divided; even lawyers are offering contradictory opinions.
Those who do not know what the Constitution looks like have also been busy
quoting it. It is partly for this reason that I have argued elsewhere that the
wise option before the People’s Democratic party (PDP) and its Osun
Gubernatorial candidate, Ademola Adeleke, would be to go to court and seek an
interlocutory injunction to stop INEC from going ahead with the proposed re-run
until the more substantive issues in the case have been determined. They may
also seek an order of mandamus from the court asking INEC to declare the
results of the Osun State Gubernatorial election held on September 22. As at
the time of this writing, neither the PDP nor Senator Ademola Adeleke has taken
this course of action. They probably have taken the decision to participate in
the rerun election.
Once
they do so, they may no longer be in a position to raise any a
posterioriprotest about the election of September 22, as the principle of
estoppel by conduct could automatically kick in, and be held against them, and
that election would be validly inchoate as INEC has declared. Is it not better
to put something on record? I am all for testing the law on the issues
outlined above, more so as there has been a repeated tendency on the part of
INEC, under President Muhammadu Buhari to use the tool of “inconclusive
elections” mostly in elections where the ruling party seems to find it
difficult to have its way. But why would the PDP and its candidate be reluctant
to attempt a legal response at this point? Over-confidence that they will
win? Or hope that they could still resort to the Election Petitions Tribunal
later, if the need arises?
Adeleke
and the PDP are probably aware of the declaration by Justice Adamu
Abdu-Kafarati, the Chief Judge of the Federal High Court at the commencement of
the new Legal Year 2018/2019 last week. His Lordship disclosed that High Court
Judges have been directed not to grant any stay or interlocutory injunctions in
political cases. I don’t think anyone who needs the protection of the courts
should be deterred by this. While it is advisable to protect the courts from
the antics of political gladiators, I find His Lordship’s directive strange,
for it would appear that what he has done is to ask the High Court to divest
itself of its own jurisdiction. How can a court divest itself of its own
jurisdiction through administrative fiat? Would it not be better to take every
case on its own merit, expeditiously of course, and to ensure that the end of
justice is served?
And
perhaps, Adeleke and the PDP are also intimidated by the reference, in the last
two days, to the Supreme Court decision in Faleke vs INEC and anor. (SC.
648/2016) NGSC 84 which is being relied upon by a few to justify INEC’s
decision on the September 22 Osun election. It must be noted to start with that
the material facts in that case are different, even if there are clear and
unambiguous pronouncements in that ruling on the value of election guidelines,
the powers of INEC to declare an election inchoate and the effect of Section
179 (2) (a) (b) of the Constitution. My suspicion is that the jurisprudence in
Faleke’s case is now being exploited for political reasons. The Supreme Court
in that case, may have unwittingly created an argument that it did not
originally anticipate. There are unanswered questions: Can we use the
Electoral Act or any other subsidiary legislation to vary the provisions of the
Constitution? Can we use a subsidiary legislation to write into the
Constitution what is not in it? I raise these questions for reflection.
This
space not being a court of law, I shall proceed no further on this score. It is
entirely up to Senator Ademola Adeleke and his party, to decide whether to go
to court or not. But with Adeleke having led the Osun Gubernatorial polls with
254, 698 votes to Gboyega Oyetola (APC)’s 254, 345, leaving a margin of 353,
and the former fulfilling the conditions in Section 179 (2) of the 1999
Constitution, it can be said that the sentiments of the people of Osun state
are with Senator Ademola Adeleke and the PDP. The incumbent Governor of Osun
State, Raufu Aregbesola and other APC leaders who before Sept. 22 had thought
that they would win the election easily must have been shocked that the
PDP candidate could put up such a strong performance. What they will also not
easily admit is that Adeleke’s performance is from all indications, a vote
against Aregbesola and the APC. It is a comment on the prevailing order in that
state: a vote against non-payment of salaries, and pensions, and a comment on
the arrogance of the APC elite. It has taken a dancing Senator to remind
Governor Aregbesola of the extent of his party’s popularity in Osun state. That
popularity contest will be determined this week.
My
sympathy is with Ademola Adeleke, and not necessarily because he has the best
credentials for the job, but if he is the choice of the people of Osun State,
the people should be allowed to make their choice and no deliberate obstacles
should be placed in their way. There is probably nothing his opponents
have not done to stop him. He was accused of not having the requisite
educational qualification for the office: secondary education - and was taken
to court. The Court summoned the West African Examinations Council (WAEC) and
asked for clarification via a sworn affidavit. Adeleke was
vindicated when the Examinations Council confirmed that he indeed sat for the
School Certificate Examination in 1980/81. His critics didn’t give up.
They
made big capital out of the fact that the Senator, as a secondary school
student got an F9 in English language. They turned this into a butt of jokes,
except that the law does not require Nigerian politicians to have anything more
than fail grades for them to be eligible for office. With his F9 in English,
Adeleke can in fact sometime in the future emerge as president or Vice
President of Nigeria! His critics still wouldn’t give up. Three days to the
election, the Police Headquarters in Abuja disclosed that Ademola Adeleke and
one Sikiru Adeleke are the subject of an investigation involving an alleged
fraudulent procurement of NECO certificates. They wanted him to report in
Abuja. The president had to intervene and ask the Inspector-General of Police
to back off. Adeleke was further cast in the image of a bumbler without brains
who only knows how to dance all over the place. I think the fellow himself has
not helped matters in this regard, though, but that is certainly not the focus
of this commentary. What is certain is that every ad-hominem attack on Senator
Adeleke has totally failed. He remains popular with the people of Osun
state.
This
is the same man the people of Osun State gave majority votes on Saturday,
September 22 in a Gubernatorial election that paraded 48 political parties and
candidates, and they will probably do so again on Thursday. By hounding Ademola
Adeleke with everything at their disposal, the Osun APC and their allies
elsewhere, have turned him into the ordinary people’s hero. Public sentiment is
in his favour, either in Osun or anywhere else in Nigeria, because of the perceived
desperation of the APC. The declaration of the September 22 election merely
fuels existing suspicions and the public’s sentiments. This is the more reason
why INEC’s integrity and credibility is at stake. It must do everything to
demonstrate that it is indeed an independent and unbiased umpire and not an
agent of the ruling party. Both INEC and the ruling party must be seen to be
consolidating our democracy and do nothing to undermine the country’s
jurisprudence.
I
don’t know whether the INEC Chairman and the Returning Officer for Osun watched
the recent US Open Grand Slam final match between Serena Williams and the young
Japanese tennis player, Naomi Osaka. There was a lot at stake in that match. If
Serena Williams won, she would have matched the record 24 Grand Slam titles won
by Australian player, Margaret Court. If Naomi Osaka won, she would be the
first Japanese to win the US Open Grand Slam singles championship. But at
the end of the match, both players were not the issue, even if Osaka won, but
the chair umpire of the match who was accused of harsh calls against Serena
Williams. Serena received a code violation warning for smashing her racket, she
was accused of cheating, she was penalized a game for “verbal abuse.” The drama
took the sweetness out of Naomi Osaka’s victory. INEC as umpire in the Osun
election should avoid the temptation to turn itself into an issue.
Senator
Ademola Adeleke and his party may be ahead with 353 votes so far, but having
chosen to participate in the rerun, they must be aware that the two-horse race
they have signed up for on Thursday can go in either direction. They must not
smash their rackets. They must eschew verbal abuse. They should keep their eyes
on the ball. They must appeal to the people of Osun state to be vigilant and
the voters in the local councils where the rerun will be held should come out
en masse as they did last Saturday. One more piece of advice for Adeleke: to
win that election, he must cultivate the friendship of other opposition leaders
in the State.
Other
PDP leaders, including Senate President Bukola Saraki and Chief Femi
Fani-Kayode, have been helping him to talk to Senator Iyiola Omisore, who has
now emerged as the “beautiful bride” of the supplementary election, since most
of the votes at stake on Thursday are concentrated in his political strongholds
- Ife North and Ife South. Adeleke should reach out to him personally, and
encourage him to mobilise his supporters to back the PDP- a party he defected
from just before this same election. The APC are also talking to Omisore and he
has set up a technical team to weigh the options before the Osun State Social
Democratic Party (SDP). Omisore faces a critical moment in his political career.
He must make a wise choice. Victory for Adeleke will shore up INEC’s
credibility, allay all fears of manipulation, and create opportunity for the
emergence of an inclusive government in Osun State, with implications for
subsequent elections in 2019. But of course, the APC is not going to drop the
ball either on account of public sentiments. Governor Raufu Aregbesola will
seek to protect his legacy and future, and also seek to avoid the “Ekiti
outcome. “ Alhaji Gboyega Oyetola will also want victory for himself. May the
people’s will prevail.
Related News
1. National Assembly to Resume
October 9th, 2018
2. #OsunDecides2018: INEC
Declares Guber Elections Inconclusive, Fixes September 27 for Rerun
3. #OsunDecides2018: Focus on the
Economy
4. Nigeria Challenges HSBC Report
On President Buhari And The Economy
5. #Elections2019: House Speaker
Dogara to consult supporters on defection to PDP
6. President Buhari appoints
Yusuf Bichi as DG DSS
7. Card Reader Not Included in
Electoral (amendment) Bill Transmitted on August 3, 2018
8. 2019 Elections: Why Nigeria
Needs Quality Leaders to Emerge
9. APC Local Council Chairmen
Shun Ambode, Back Jide Sanwoolu For Governorship Candidate
10. Akinwunmi Ambode Declares
Intention To Run For A Second Term, Picks Up Nomination Form
11. A Brief Manual Of Nigerian
Politics – Beyond 2019 Soundbites
12. #2019Elections: APC Releases
Timetable for Primaries