Osun: Election as theatre

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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 posteriori protest 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 Rauf 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.