* Cautions judiciary against determining winners of elections
With about two weeks to the general election, the decision of the Osun State Election Petitions Tribunal nullifying the victory of Governor Ademola Adeleke in the July 16, 2022, governorship election on the basis of over-voting despite the deployment of Bimodal Voters Accreditation System (BVAS) has raised concerns with former President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba (NBA) urging the Independent National Electoral Commission (INEC) to deal with corrupt and unethical practices of its members of staff to protect the entire electoral process.
The tribunal had, in its judgment, invalidated the election of Governor Adeleke of the People's Democratic Party (PDP) and declared the immediate past governor and All Progressives Congress (APC) candidate, Gboyega Oyetola as the winner of the election.
Delivering its judgment, the tribunal led by Justice Terste Kume held that the governorship election was characterised by over-voting, adding that after deducting the excessive votes, Oyetola's figures rose to 314, 921, while Adeleke's came down to 290, 266.
The tribunal's decision was based on non-compliance with Sections 47 (2) and Section 51 (2) provisions Section 47 (2) of the Electoral Act 2022.
But Agbakoba, in a paper he co-authored with Collins Okeke, an Associate Partner in his law firm, Olisa Agbakoba Legal (OAL), said having read the judgment of the tribunal, two issues stand out: "The first is the capacity of INEC to organise free, fair, and credible elections; and the second is in relation to orders made by the tribunal."
In the document titled: 'Thoughts on the Judgment of the Osun Governorship Election Tribunal,' the human rights lawyer contended that regarding INEC's capacity, what this judgment shows is that the commission did not deliver credible elections even with the use of technology.
He wondered how over-voting became possible with BVAS and INEC Results Viewing (IReV) portal when the introduction of the BVAS and IReV portal was to deal with over-voting.
The former NBA boss said with the general election about two weeks ahead, INEC must work very hard to ensure the process is free, fair, and credible in strict compliance with its regulations and the provisions of the Electoral Act
He advised the commission to deal decisively with the corrupt and unethical practices of its staff, as proven in the judgment of the Osun State Election Petitions Tribunal.
The senior lawyer warned the judiciary to resist the temptation of determining winners in an election, saying that the power to decide who is elected into political office ought to be the voters.
Though he argued that judicial recourse is perfectly allowed and preferable to extra-judicial measures to redress perceived electoral errors, it should be an exceptional option to rectify an electoral impropriety.
"The 2023 general election is a crucial election for Nigeria. INEC must work very hard to ensure the process is free, fair, and credible. There must be strict compliance with provisions of the electoral act and INEC regulations.
"INEC must also deal decisively with corrupt practices and unethical practices of its staff as proven in the Osun governorship; otherwise, it could undermine the entire electoral process.
"The Judiciary must resist the temptation to determine winners in an election. The power to decide who is elected into political office ought to be in the hands of the voters. Judicial recourse is perfectly allowed and preferable to extra-judicial measures to redress perceived electoral errors.
"But this should be an excellent option to rectify an electoral impropriety. Making a habit of bypassing elections to determine elected officials due to electoral irregularities and constantly forcing the judiciary to annul elections doesn't bode well for Nigeria's fledgling democracy.
"The current trend could cause a loss of confidence by the electorate and embolden politicians to forego the polls and instead try to "win" elections by influencing the judiciary in underhand ways.
"In relation to orders made by the tribunal, the learned tribunal was right when it ordered the cancellation of votes in areas where over-voting was established.
"This is in accordance with Section 51 (2) of the Electoral Act 2022. However, the decision of the tribunal to deduct excessive votes, tabulate the results, and declare Oyetola winner of the especially election seems to run counter to the provisions of the Electoral Act Section 51 (2)&(3), which provides that 'Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit." (3) "Where the result of an election is canceled in accordance with subsection (2), there shall be no return for the election until another poll has taken place in the affected polling units.
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"The combined reading of the sections strongly suggests that the appropriate order the tribunal ought to have made is fresh order polls in the affected 744 polling units.
"Justice would have been best served if the tribunal ordered fresh polls in the affected areas as its decision disfranchises all voters that participated in the election from the affected areas who in no way should be held responsible for the over-voting or be made to bear responsibility for its occurrence.
