Legality or Otherwise of the Declaration of Inconclusiveness of the Osun State Governorship Election by INEC

Pelumi Olajengbesi Esq.

The declaration of INEC in the Osun State election may have generated lots of cacophony from different strata of the country. It must be posited that the cacophony is rightly so because the decision of INEC though consistent with previous practice and custom is illegal and unconstitutional, hence null and void. This is because by the general provision of section 179(2) (a) and (b) of the 1999 Constitution as amended, provides thus: (2) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates -



(a) he has the highest number of votes cast at the election; and


(b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.


Indeed, the above copiously reproduced provisions are explicit and unambiguous hence needs no further interpretation. Put simply a candidate in an election who scores the highest number of valid votes in election, having as well scored one-third of at least two-third of the Local Government Areas in the state shall be returned elected.



The Electoral Act, specifically its Section 69, is consistent with the said provision of the constitution in that respect as same is made subject to 179 as it relates to governorship election as it provides thus:




69. In an election to the office of the President or Governor, whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions of sections 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.




Reverting to the facts as presently constituted in Osun State, the PDP candidate Senator Adeleke from the summation of the results scored 254,698 votes while the APC candidate Oyetola scored 254, 345. It is expressly clear that there is a winner in the Osun elections as there is no tie as to warrant a re-run and it is clear that the candidate of the PDP scored the required one-third votes in at least two-third of the all Local Government Areas in Osun State. Hence the decision of INEC to declare the elections as inconclusive is unconstitutional and must be declared null and void.



The provisions of the Constitution must at all times be given priority and in fact is supreme over any other law including the Electoral Act. By the express provisions of Section 1(3) of the 1999 Constitution as amended where any other law is inconsistent with the provisions of the 1999 Constitution, said law shall be null and void to the extent of its inconsistency. It is imperative and trite to state that in interpretation of statutes, more so the Constitution which is the grundnorm of the land, words are not allowed to be inserted other than the primary and exact words used by the statute and in this case the Constitution.



The Courts have in a plethora of authorities and cases enunciated the status of provisions of the Constitution as it relates to interpretation. In F.R.N v. Nwodo (2016) 17 NWLR Pt. 1541 226 at 294 para D posited thus:


"Indeed the Constitution is our supreme law and where it is clear and unambiguous on an issue, it must be the only provision to resort to...". See also: Nafiu Rabiu v. Kano State (1980) LPELR-2936(SC).


In the same vein the Supreme Court in Saraki v. F.R.N (supra) held this



"The construction of the Constitution should be undertaken as a holistic endeavour".



The case of Onashile v. Idowu (1961) 2 SCNLR 53 expanciated further thus “by the literal rule or principle of interpretation of statutes, the words used, employed in the Sections of the Constitution and Electoral Act are to be given their ordinary, natural and grammatical meaning unless to do so will result in absurdity with the provisions of the statute as a whole". See also Lokpobiri v. Ogoala (2016) 3 NWLR Pt. 1499 328 at 363 paras. E-F.


The provisions of Section 179 of the 1999 Constitution as amended were not made subject to Section 63 of the Electoral Act 2010 as amended. Hence the decision of INEC to declare the elections inconclusive is ultra vires the Constitution hence null and void to the extent of its inconsistency. This is more provident considering the fact that the PDP candidate scored more valid votes cast in the elections and is not on equal votes with the APC candidate. More so, having achieved the constitutional landmark of scoring majority of the votes coupled with one-third of votes in at least two-third of the Local Government Areas in Osun State, doing otherwise is unconstitutional.

Conventional error should never supplant constitutional directives, no matter how prevalent. There is no way the Electoral 'Subsidiary' Laws can be more powerful than the constitution. That it is a custom or practice does not in anyway usurp the constitutional provisions in that respect. INEC being a product of law must act and be seen to act by the law in the Osun gubernatorial debacle.



Being a Quick Reaction of Pelumi Olajengbesi Esq., (Public Interest Lawyer) sent to Journalists on the matter of the Osun State Governorship Election. 24/9/2018.