Former Nigerian Bar Association Chief Prosecutor, Mr. Jibrin Okutepa SAN has disagreed with fiery constitutional lawyer, Chief Mike Ozekhome SAN on the declaration of the Osun State  Governorship Election as “inconclusive.”

Throwing his weight behind the Independent National Electoral Commission (INEC), Okutepa said there is a Supreme Court decision to support INEC’s position on the matter.

Ozekhome had argued that “There is no basis whatsoever, whether in law, constitutionalism, or morality, to have declared the election inconclusive.”

But Okutepa thinks otherwise. The full statement is below:

As the legality of the action of INEC to declare the result of governorship election in Osun State inconclusive is ranging on and generating legal controversies, it is necessary I point out here that this is not the first time INEC has done so and had judicial approval even at the highest court of the land.

I was deeply involved in the case of Hon James Abiodun Faleke vs INEC and others.

In that case Chief Wole Olanipekun SAN led me and other eminent senior counsel to argue that the reliance by INEC on its manual for election was unconstitutional because the constitution has already set out the parameters on how and when a governor should be declared elected in Nigeria.

We argued that as at the time INEC declared the result of Kogi State election for governorship inconclusive late Prince Abubakar Audu and Hon Faleke had won the required spread and majority of lawful votes. There was no necessity we argued for the re-run in the polling units whose results or elections were cancelled.

We further made the point that since election is to be done by those who have their permanent voters cards, reference to people on the register of voters was wrong because there was evidence that not all those whose names were on the voters register collected their PVCs.

The trial tribunal, the court of Appeal and the Supreme court did not agree with us.

This is what the Supreme court said as quoted by my learned friend Sylvester Udemezue Esq in a response to Chief Mike Ozekhome SAN position which contend otherwise.

The Supreme Court said this:
“The relevance of INEC’s Manual for Electoral Officers in the proper conduct of elections was acknowledged by this Court in the case of C.P.C Vs INEC (2011) LPELR  8257 (SC) AT PAGES 54 & 55 F – B per Adekeye, JSC thus:
“By force of law the Independent National Electoral Commission has the duty of conducting elections. Besides the constitutional provisions, it is guided by the Electoral Act 2010 (as amended) and the Election Guidelines and Manual issued for its officials in accordance with the Act. These documents embody all steps to comply with in the conduct of a free, fair and hitch free election.” (Emphasis mine).

“Having discovered electoral malpractices in 91 polling units in the State, it was proper for the 1st respondent to consult and apply the provisions of its Manual to determine the next course of action in the circumstances.

“I do not agree with Chief Olanipekun, SAN, with due respect that resort to its manual in the circumstances amounted to a flagrant disregard of the supremacy of the constitutional provisions as contained in Section 179(2).

“Chapter 3 paragraph 3.11, step 14 of the Manual for Election Officials (updated version) at page 325 of Volume 1 of the record provides:
3.11: Final Collation and Declaration of Governorship Election Results at State Level: The State Collation/Returning Officer for the Governorship shall:
Step 14: ‘Where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new Form EC8D and subsequently recorded into a new form EC8E for Declaration and Return.’ (Emphasis mine)

“The provision is clear and straight forward and did not require a foray into any other provisions in the Manual for it to be effected. There is no dispute as to the fact that the margin between the votes scored by the late Prince Audu and the appellant on the one hand and Capt. Wada and Arch. Awoniyi, on the other was 41,619, which was less than the total number of registered voters in the 91 polling units where votes were cancelled.

“I therefore agree with the court below that the 1st respondent was correct to have declared the election inconclusive on the basis of the number of registered voters in the 91 affected polling units. Having regard to the clear provisions of the Election Manual, it would have been wrong for any electoral official to base his decision on any other consideration”

I think as lawyers our duty is to educate the people and avoid commentary that tend to hit up the polity.

Unless we approach the Supreme court to over rule itself, what INEC did in Osun State is within its powers to do.

I therefore suggest that politicians should get set to go and do the rescheduled re-run in those polling units on 27th September 2018 to determine the winner of the election.

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