Against rerun, election malpractice, in Abia

FOLLOWING the judgement of the Court of Appeal on the governorship election in Abia State, it is expected that the ruling PDP will allow Abians enjoy their God-given peace. However, Abia State Government and the PDP have remained adamant and unwilling to concede power.  This is bad of a political party and a government attempting to twist facts and cajole the Supreme Court ahead of its consideration of the appeal. But there was a governorship election in Abia; and Dr. Alex Otti and his party APGA were voted into power. Unfortunately, those who seek power through brutish force and violence did what pleased them, but displeased the electorate.
In this last battle, the opposition have continued to question the declaration of Otti as governor. However, they should recognise the empirical legal facts from where the Appeal Court derived its wisdom and powers for its verdict.
S.140(3) of the 2010 Electoral  Act states that if a tribunal or court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the election tribunal or the court as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the constitution and this Act.
In effect, for one to be declared the governor he must satisfy two conditions. (1) The constitutional requirement of spread in 2/3 of the local government and (2) score the highest number of lawful votes.
What is lawful vote? Lawful votes are those votes cast in accordance with the electoral Act. In HDP vs Obi (2012) 1 (NWLR) (PT 1282) 464 , “Invalid means without validity, efficacy, weight or cogency and having no effect.” An invalid vote is not a vote at all and after it has been detected as being invalid, it cannot be used to compute the number of votes cast in an election. The court went further to say that “it will be like counting both the living and the dead in census exercise”.
APGA and its candidate prayed that votes recorded for Obingwa, Osisioma and Isialangwa North were characterised by malpractice, invalid and were not real and should be cancelled. The prayer was upheld.
The Appeal Court agreed with the position based on empirical facts laid before it. One of them was that the tribunal misunderstood the case and held that there were rerun in these areas and that Otti and his party participated. This error led the tribunal to a wrong direction. It ruled that having gone through a rerun, all exhibits tendered by Otti’s witnesses to show substantial non-compliance and over voting will not be considered.
The position of the law is that once there is an over voting, you cancel the results of those areas. If then the leading candidate has enough spread constitutionally, he will be declared. After the cancellation of the invalid votes, Otti won the required number of lawful votes and met the constitutional requirement, and was duly and unanimously declared the governor by Appeal Court.
There are precedents:
In Aregbesola vs Oyinlola, 10 local governments areas where over-voting occurred were cancelled including the local government area of Oyinlola. Aregbesola was returned after more than 300,000 votes  were invalidated.
In Agagu vs Mimiko, the court held: “There are therefore no relief seeking that the election be nullified and a fresh one conducted. In the absence of such a relief seeking the avoidance of the elections of the Governorship election held in Ondo State on April 14, 2007, this court is not competent to accede to that request”. The results for wards in Ese Odo, Okitipupa and Akoko North East were nullified and Mimiko declared the winner.
Fayemi vs Oni: Results were also invalidated and Fayemi  returned as having scored the majority of lawful votes. INEC vs Oshiomhole: Results for Etsako Central and Akoko Edo LGA and several wards were cancelled; still Oshiomhole was declared governor. It is only when there is no winner of majority votes and with constitutional spread that a rerun can be ordered.
On the allegation of disenfranchising voters, the only evidence produced before the court came from the petitioners, which showed what appeared in the card reader contrary to what was declared.
The three contentious local councils are nowhere near the local governments  with the highest voters’ registration in the country. Across the state and the whole federation, voters turn out was less than 35%. For example, Aba North and South had over 190,000 registered voters each, yet didn’t record up to 30% each, while the controversial local councils recorded 95% turnout each.
Contrary to the information about the card reader, it is just conclusive of persons accredited to vote. Even though the process may be manipulated in the sense that you can use someone’s PVC to clear the first stage of accreditation but will fail the second stage.
The first stage is to prove that the PVC is for the particular unit after that, it is to show that the card belongs to the presenter by authenticating the finger print.
The incident forms are for purposes where the card reader is genuine for the units but fails to read the finger print. The data shows both successful and unsuccessful columns, tally of which will be given incidence forms as part of the total number of card reader data. In effect, the column showing unsuccessful will be substantiated by the same number of incidence forms.
The demand for a rerun is curious since no cross appeal was filed. They also did not file a respondents notice. They did not also tender evidence at the lower tribunal to show the voting strength of those local councils.
The protest and the condemnation of the Appeal Court judgment has a lot to do with pursuit of stomach infrastructure of some godfathers The law and rules guiding election are for  all, and cannot be selective. While voters in the 14 local councils adhered to these rules, other people set and respected their own rules. If the electoral crimes of shooting, ballot-snatching and stuffing, threat  to innocent lives and invasion of INEC headquarters and burning down of INEC offices for purposes of rigging election is not decisively punished, the perpetrators and the beneficiaries would be strengthened to adopt more dangerous measures in the future.
Election rigging must have far reaching consequences meted out without caring whose ox is gored.
As has been rightly observed before, election rigging is responsible for insecurity, armed  robbery, political assassination, kidnapping, terrorism and other dangerous vices that are swiftly sinking our  nation. Granting a rerun is like compensating criminality.
• Ekeoma writes from Aba, Abia State.

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