IS THE MARGIN OF LEAD PRINCIPLE A LAWFUL MEANS OF DETERMINING WHO WON A SENATORIAL ELECTION IN NIGERIA?
PURPOSE
This article aims to explore ways by which a winner of a senatorial election in Nigeria is determined vis-à-vis Constitution of the Federal Republic of Nigeria 1999 (as amended), Electoral Act 2022 and INEC’s Regulations and Guidelines for the conduct of Elections 2022.
KEYWORDS
Electoral Act, Margin of lead principle, Election, Constitution, INEC’s Regulations and Guidelines for the conduct of Elections.
INTRODUCTION
Amidst the vibrant tapestry of democracy, one timeless element reigns supreme: the sacrosanct ritual of elections. Nowhere is this revered practice more evident than in the Federal Republic of Nigeria, where it finds its rightful place in the very heart of the Constitution. Truly, the Constitution stands as “the fons et origo,” an unwavering beacon of governance and the “grundnorm”—the bedrock upon which the entire legal framework takes form, meaning and origin from.
In this great nation, the Constitution's hallowed pages breathe life into the democratic spirit, empowering citizens with the profound ability to shape their collective destiny through the power of the vote. As the substantive law for elections in Nigeria, it imparts purpose and authority to the people's voices, making every ballot cast a testament to freedom and self-determination.
But the democratic journey doesn't rest solely on ancient texts; it surges forward with the guiding light of modernity. The Electoral Act 2022, a dynamic and purposeful legislation conscientiously crafted to navigate the complexities of the electoral process. Like a skilled conductor leading a symphony, this act harmoniously orchestrates the conduct of elections, ensuring fairness, transparency, and inclusivity at every turn.
Together, the Constitution of the Federal Republic of Nigeria and the Electoral Act form an indomitable duo, safeguarding the very essence of Nigeria's democracy. Through their partnership, they inspire hope, uphold justice, and embolden the nation to stand tall on the global stage of democratic principles.
POWERS OF THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) TO ISSUE REGULATIONS AND GUIDELINES
In recent times, attempts have been made by the Independent National Electoral Commission (INEC) to ensure that elections conducted in Nigeria are free and fair, hence the issuance of Regulations and Guidelines for the conduct of Elections 2022. The extant INEC’s Regulations & Guidelines for the conduct of election was made 2022.
The power of INEC to issue regulations and guidelines is provided for in Section 148 Electoral Act 2022 which states thus;
“The Commission may, subject to the provisions of the Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration”.
Amongst such Regulations and Guidelines for the conduct of Elections 2022 is the “MARGIN OF LEAD PRINCIPLE”.
The Margin of lead principle is provided for in paragraph 62 of INEC’s Regulations and Guidelines for the conduct of Elections 2022 which provides thus;
“Where the margin of lead between the two leading candidates in an election is not in excess of the total number of voters who collected their Permanent Voters’ Card (PVCs) in polling units where elections are postponed, voided or not held in line with Sections 24 (2 & 3) 47(3) and 51(2) of the Electoral Act 2022, the Returning officer shall decline to make a return in the affected polling units and the results collated into the relevant forms for Declaration and Return. This is the Margin of Lead Principle and shall apply whenever necessary in making returns for all elections in accordance with these Regulations and Guidelines”.
In simple terms, it means when the difference between the scores of two leading candidates in an election is less than the total number of voters who collected their Permanent Voters Card (PVCs) in polling units where elections are postponed, voided or not held in consonance with Sections 24(2) & (3) 47(3) and 51(2) of the Electoral Act 2022, the Returning Officer shall decline to make a return in the affected polling units and the results collated into the relevant forms for Declaration and Return. It can be interpreted that such elections should be declared inconclusive.
INSTANCE WHERE THE MARGIN OF LEAD PRINCIPLE WAS APPLIED IN NIGERIA
The Margin of Lead Principle was applied in the 2015 governorship elections in Kogi State. The election was held as scheduled on 21/11/2015, at the close of the polls, the late Prince Audu/Faleke ticket was leading with 240,867 votes while the Peoples Democratic Party (PDP) was in second place with 199,248 votes. However, as a result of certain electoral malpractices discovered to have occurred in 91 polling units, INEC relying on its Manual for Election Officials (updated version) declared the election inconclusive on the ground that the total number of registered voters in the disputed 91 polling units where elections had been cancelled, which was 49,953, exceeded the margin of votes between the APC and the PDP, which was 41,353 votes and would therefore affect the final outcome of the election.
THE PURPOSE OF INTRODUCTION OF THE MARGIN OF LEAD PRINCIPLE
The Margin of Lead Principle has been introduced in elections in Nigeria to prevent disenfranchisement of a relatively large number of people who collected their Permanent Voters Card (PVCs) with the intention to vote in an election. Notwithstanding its advantage, the principle contravenes the provisions of the Constitution of Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2022. It is important to elucidate here that the Constitution of the Federal Republic of Nigeria 1999 (as amended) is the grundnorm and the apex law in Nigeria while the Electoral Act 2022 is the specific legislation enacted by the National Assembly regulating elections in Nigeria; both legislations provides the criteria to determine the winner of an election in Nigeria.
Section 66 Electoral Act 2022 states thus;
“66. Declaration of result
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 subjected 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”. (Underline mine for emphasis).
Section 133 CFRN 1999 (as amended) states thus;
“A candidate for an election to the office of President shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election-
(a) he has a majority of YES votes over NO votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all States in the Federation and the Federal Capital Territory, Abuja”
Section 134 CFRN 1999 (as amended) states thus;
“(1) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being only two candidates for the election-
(a) he has majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation and the Federal Capital Territory, Abuja.
(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
(a) he has the highest number of votes cast at the election;and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all states in the Federation and the Federal Capital Territory, Abuja.
(3) In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidate shall be-
(a) the candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and
(b) one among the remaining candidates who has a majority of votes in the highest number of states, so however that where there are more than one candidate with a majority of votes in the highest number of States, the candidate among them with the highest total of votes cast at the election shall be the second candidate for the election.
(4) In default of a candidate duly elected under the foregoing subsections, the Independent National Electoral Commission shall within twenty-one days of the result of the election held under the said subsections, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of President if-
(a) he has a majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all States in the Federation and the Federal Capital Territory, Abuja
(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall, within twenty-one days of the result of the held under the aforesaid subsection (4), arrange for another election between the two candidates to which the subsection relates and a candidate at such election shall be deemed to have been duly elected to the office of President, if he has a majority of the votes cast at the election”.
Section 179 CFRN 1999 (as amended) states thus;
“(1) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election-
(a) he has a majority of YES votes over NO votes cast at the election; and
(b) he has not less than one-quarter of the votes at the election in each of at least two-thirds of all the local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations.
(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.
(3) In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be-
(a) the candidate who secured the highest number of votes cast at the election; and
(b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the State, so however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast cast at the election shall be the second candidate.
(4) In default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within twenty-one days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if-
(a) he has a majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of at least two-thirds of all the local government areas in the State.
(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall, within twenty-one days of the result of the held under that subsection, arrange for another election between the two candidates to which that sub-paragraph relates and a candidate at such election shall be deemed to have been duly elected to the office of governor of a State if he has a majority of the votes cast at the election”.
Flowing from the above sections for a candidate to be declared winner in an election whether Presidential, Governorship, Senatorial election the candidate must score the highest number of votes cast in the Election (accompanied with some other requirements for Presidential and Governorship election but which is not within the purview of this discourse). There is no provision for margin of lead principle in the Constitution of the Federal Republic of Nigeria 1999 (as amended) neither is there a provision for margin of lead principle in the Electoral Act 2022. It is important to elucidate further that the Regulations and Guidelines for the conduct of elections 2022 made by INEC (Independent National Electoral Commission) is a guide for the conduct of elections and not a law enacted by the National Assembly. Although, it was said in Faleke v. I.N.E.C (2016) 18 NWLR (PART 1543) 61 @156 thus;
“it is not out of place to say authoritatively therefore that the Manuals for Election Officials 2015 (Updated Version) issued are not mere instructions or directions; rather, they are subsidiary legislations which have the force of law. They have their origin from the Constitution and the Electoral Act.”
Section 148 Electoral Act 2022 provides thus;
“The Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration.
It is worthy to note that an act contrary to the Instructions of INEC which is not contrary to the provisions of the Electoral Act 2022 cannot be a ground to question an election or determine the winner of an election.
Section 134(2) Electoral Act 2022 provides thus;
“An act or omission which may be contrary to an instruction or directive of the Commission or an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not itself be a ground for questioning the election.”
In NYESOM V. PETERSIDE (2016) 7 N.W.L.R (PART 1512) PG 452 @528 The Supreme Court held thus;
“so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election”.
In CHABO & ANOR V. ACHIR & ORS (2019) LPELR-48757 (CA) ONYEKACHI AJA OTISI, J.C.A (Delivering the Leading Judgment) stated thus;
“In other words, although the 3rd Respondent is endued with powers to issue regulations, guidelines or manuals for smooth conduct of elections, by Section 138(2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election. Therefore, the act or omission complained about by a petitioner must be covered by the Electoral Act itself to qualify as a ground for bringing a petition, and not merely be an act or omission found in the Regulations and Guidelines, albeit made under the Act”.
In Nyesom v. Peterside (supra) a point was strenuously made by the apex Court of the land that the Guidelines and Manual cannot be elevated above the provisions of the Electoral Act. In his concurring opinion, I.T Muhammad, JSC (as he then was) said thus;
“I agree with my learned brother, Kekere- Ekun, JSC that failure to follow the Manual and Guidelines which were made in exercise of the powers conferred by the Electoral Act, cannot in itself render the election void. And, this should not be understood to mean that the innovation of the Card Reader is in conflict with the relevant sections of the Electoral Act.
Permit me, again, Your noble Lordships, to state, with emphasis, that the Card Reader was Introduced by INEC with good intentions. However, a distinction must always be drawn between the effect of a law made by the legislature (National Assembly: i.e. the Electoral Act; the constitution, etc) and a rule of procedure (by whatever name called) by any authority with a view to facilitating smooth running or operation of a given institution. Breach of the former can be severe and fatal than breach in case of the latter”.
In CHABO & ANOR V. ACHIR & ORS (2019) LPELR-48757 (CA) ONYEKACHI AJA OTISI, J.C.A (Delivering the Leading Judgment) stated thus;
“ I agree with Mr. Hyundu that there cannot be any enlargement or addition made to unambiguous provisions of the Electoral Act by the Guidelines and Regulations, more particularly described in FALEKE V.INEC (Supra), a subsidiary legislation.
It is worthy of note that the Regulations and Guidelines for the conduct of Elections, 2019, as did the Approved Guidelines and Regulations for the conduct of the 2015 elections clearly stated:
‘These Regulations and Guidelines complement the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); (Emphasis mine)
The word complement has the following meanings:
‘to make something else seem better or more attractive when combining with it’ ….. Cambridge English Dictionary.
The Guidelines and Regulations therefore complement the Electoral Act more in the light of a policy document to guide officials of the 3rd Respondent in their duties and responsibilities under the Electoral Act. Its provisions remain a guideline and cannot override the Act in any particular. What this simply means is that the effect must be given to every provision in the Electoral Act, which includes Section 138(2) as follows:
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.
“Therefore, having regard to the decision in Nyesom v. Peterside (supra), failure by officials of the Commission to use the margin of lead principle provided for in the Regulations and Guidelines, by itself and without more, is not a competent ground for a petition”.
CONCLUSION
To sum it up, it is worthy to note that the INEC Regulations and Guidelines which is birthed from the Electoral Act can be interpreted as a subsidiary legislation and has the force of law as stipulated in the case of Faleke v. INEC (2016) 18 NWLR (PART 1543) 61, nonetheless, INEC Regulations and Guidelines is inferior to the Constitution and the Electoral Act and both legislations determines who wins an election and not the INEC Regulations and Guidelines.
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