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In Nigerian elections, can returning officers cancel votes?

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Governor Gboyega Oyetola is now accepted by us all as the governor of Osun state because that is what the judiciary says. That is not to say that we believe he actually won the election. What we believe he won, is the election petition; as decided both at the Court of Appeal and the Supreme Court. Senator Ademola Adeleke, his main opponent at the election, must at this point forget about his grievances and pursue other businesses while analysts and commentators draw attention to the several issues which the election and indeed the election petition brought to the fore of national discourse. Perhaps there are lessons we can as a nation, learn from the Osun election which may hopefully untie the many dubious knots in the conduct of elections in Nigeria. If nothing else, we might be able to put an end to contrived inconclusive elections.

First is the pivotal role of the judiciary in our elections. As the societal institution which presently has the last say in our election process, the nation needs to work out how best to ensure that the substance rather than technicality takes the front burner in the settlement of election disputes which is the segment assigned to the judiciary. In the case of Osun for instance, we were never able to identify the person that the electorates actually voted for. Instead, we ended up knowing the significance of an attendance register for judges during an election petition. So, Oyetola won the election because Justice Peter Obiora whose judgment at the Tribunal favoured his opponent was said to have been absent or did not sign the attendance register on one day.  Of course, Obiora who was found worthy of membership of the Tribunal could not have been unaware of the consequence of being absent any day. Why then did he do it and why is Adeleke the only victim? Will anything happen to Obiora who caused what Justice Rhodes-Vivour of the Supreme Court described as “a fundamental error?”  Interestingly, the higher courts did not even chastise the judge as they often do.

More strangely, there was no proof that Obiora was really absent as alleged. In his dissenting judgment at the Court of Appeal, Justice George Mbaba held that the submission of the appellant that Justice Obiora did not participate in the proceedings of February 6, 2019 remained “speculative and contentious.” Indeed, Supreme Court Justices Kumai Akaas and Paul Galinje revealed that “the actual record of the Tribunal was not before the Court of Appeal.” They also held that it has been the practice of the Supreme Court that judges do not have to sign the certified true copies of the judgment. Is the lay man therefore supposed to understand that the weighty decision was based on speculation? If it had been realized that it was not Obiora that was on trial, perhaps the matter would have been better resolved. In other words, the situation would have been better managed if everyone was genuinely interested in arriving at who the Osun people voted for as their governor

There is also the role played by some unscrupulous officials of the electoral body. Anytime there is an election petition, one notices how edgy INEC becomes. Some of its officials seem to hold the erroneous impression that they are obliged to defend every election result. That is rather unfortunate because the role of the judiciary is to complement INEC to arrive at a fair result. In the Osun contest, the Election Tribunal found INEC to have played dubious roles.  According to the tribunal, while figures on a substantial number of the Certified True Copies of the Forms EC8A were altered, others had figures entered on them in columns 1-8. Again, from the exhibits tendered before the Tribunal, the alteration in figures and fresh filling of the columns were not on the pink copies of the forms distributed to the polling agents of the political parties on the day of the election. In which case, the forms which were in INEC’s custody were altered after the election had ended.

Painfully, the Commission reportedly failed to controvert the findings before closing her case at the Tribunal.  While dealing with the aspect of the appeal filed by INEC at the Court of Appeal, Justice Mbaba came down heavily on the electoral umpire for its failure to live up to expectations in the conduct of the election. Mbaba held that INEC, which did not call any witness at the tribunal or tender any document surprisingly came to the Appeal Court to file an appeal. What then was INEC appealing against? This failure of the supposed umpire to show patent impartiality was more pointedly made at the Supreme Court by Justice Akaas who accused INEC of “rigging the election during the rerun.”

Perhaps the part of the case which should interest society the most was the vexed issue of cancelled votes. The public perception is that whenever the candidate who is programmed by powerful forces to win an election is lagging behind, the relevant returning officer cancels certain votes to make it impossible to arrive at a winner of an election. In that circumstance, the election is declared inconclusive – a new and disturbing trend in the history of elections in Nigeria.  On the cancellation of results in 17 polling units during the Osun election, the Tribunal held that the INEC “returning Officer is not empowered to cancel votes.” At the Court of Appeal, the same point was made in the dissenting judgment that the deliberate cancellation was wrong because. “it is the presiding Officer that has the power to cancel results if need be.” On his part, Justice Galinje at the Apex Court explained that “the decision of the commission to have pronounced the election inconclusive meant that INEC had something up its sleaves.”

One would have thought that all levels of the Judiciary, this aspect of illegal cancellation of votes should have been thoroughly dealt with as it has of recent been rubbishing Nigerian elections. Whereas the guideline was introduced to ensure that professional election riggers do not veto the votes of certain segments of the society through political violence and manipulation, it is quite obvious that politicians have since found a way to negatively use the guideline. In the circumstance, such abuse which in earnest controverts the constitutional requirement for winning elections in Nigeria ought to be shot down by the judiciary in the public interest. It is for this reason that we find the judicial pronouncement on it by the majority members at the Tribunal and the minority panelists at the Court of Appeal and the Supreme Court to be more persuasive. If technicality will not allow our judges deal with cases to the satisfaction of the common man, we may as well return to the old provision which empowers the judiciary to only nullify election, while the electorate gets a second to reaffirm its choice.

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