Inconclusiveness: INEC Erred in Fact and in Law

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 By Biko Agozino

INEC officials erred in law and in fact by declaring that the Anambra State Governorship election was inconclusive. According to the Returning Officer, Professor James Epoke, the Vice Chancellor of my beloved Alma Mater, University of Calabar, there will be a supplementary election in areas with cancelled votes because the cancelled votes were more than the difference between the winning party, APGA, and the runner up party, PDP. Fa-fa-fa foul, as Chief Zeburudaya would say.

The relevant sections of the constitution cited by the eminent Professor of Microbiology do not say anything about such an arbitrary ruling by INEC based on the margin of victory compared to invalid or cancelled votes. What the constitution demands is that the winner must secure 25% or more of the valid votes in at least 2/3 of the local governments, along with the highest number of the valid votes cast. On legal grounds, INEC erred by trying to legislate about the difference between cancelled votes and the winning margin. That requirement is not in the constitution.

According to Section 179 of the 1999 Nigerian Constitution, for any Candidate to be declared winner of a Governorship Election in Nigeria, he/she must satisfy the following requirements: Section 179 (1): The Candidate must score the highest number of Valid Votes cast in the Election. Section 179 (2): The Candidate must secure 25% or 1/4 (one quarter) of the Valid Votes cast in the Election in at least 2/3 (two thirds) of the LGAs in the State (in the case of Anambra State, two thirds is equivalent to 14 Local Government Areas out of 21).

Only the APGA candidate, Willy Obiano, met these Constitutional requirements, having won outright in 16 LGAs and having secured 25% or 1/4 (one quarter) of Valid Votes cast in 18 out of 21 LGAs. The minority parties only come close when the LGAs in which they scored 25% are combined to make 17 which is still less than the total of APGA with 18: (PDP – 9), (APC – 7) and (LP – 1). Supplementary elections are not likely to alter the margin of the APGA victory significantly.

Out of a total of 413,005 valid votes cast, APGA secured 174,710; PDP got 94,956; APC won 92,300 and LP managed 37,446. If the minority parties had combined their votes, they could have won the highest number of valid votes but APGA would still beat them in the number of LGAs in which its candidate secured 25% or more of the valid votes (see the analysis by Ghana News).

On factual grounds, INEC erred because statisticians routinely do not include what is known as ‘missing values’ when calculating the measures of central tendency and measures of dispersion. If you conduct a survey, there are questions that some respondents may leave unanswered. If you record zero as an answer for them, the computer will assume that the zero will be included in determining the average answer to that question.

This will obviously distort the mean or average and for this reason, statisticians will code non-responses as ‘missing values’ to allow the calculation of the mean and the standard deviation to be based on the number of valid answers. If 1000 people completed the questionnaire but 100 people did not answer a particular question, the average and standard deviation for the answers to that question will be based on the 900 valid responses and not on the 1000 sample of respondents.

What the INEC officials decided is unreasonable in law and in fact because, for example, if there is a football match between Nigeria and Mexico at the World Cup and Nigeria is leading by 10 goals to 5, no reasonable umpire will rule that the result is inconclusive and call for extra time just because six goals were disallowed during the match. As everyone knows, disallowed goals are in fact and under football rules considered to be no goals. The same applies to votes cancelled or deemed invalid in an election: they do not count and the constitution made that clear by underscoring that what counts are valid votes.

INEC officials may have made the cautious announcement of inconclusiveness due to intimidation, from a patriotic desire to maintain law and order, or from a human error occasioned by a sleepless night evident in the announcement by Professor Epoke at the unofficial hour of 6:30 AM.

Now that the runners up candidates have had time to reflect on the results, it is time for them to concede gracefully to the winning candidate even if INEC continues to dither. The winning party should reciprocate by including members of the minority parties in the transition team and in the eventual government on the basis of individual merit and expertise.  

Inclusiveness will help to counter the dangerous insinuations that some parties are seen as representing religious sects or ethnic blocs whereas all the citizens deserve to be given the opportunity to serve the public to the best of their abilities irrespective of initial party affiliations or lack of such and places of origin, not withstanding.

However, the large number of cancelled votes and invalid votes is a cause for concern. If someone tried to stuff the ballot boxes with invalid ballots, this should be investigated in line with the on-going investigation into suspicions that some INEC staff attempted to sabotage the election but criminal investigations should not be the excuse for delaying the announcement of the clear winner. Justice delayed is justice denied, a situation that might even provoke the public disorder or ridicule that INEC officials may have been trying to avoid with their timid announcement of inclusiveness.

I commend the people of the state for avoiding mass violence during the election despite the unfortunate tragedy at Uke that some candidates tried to politicize. I commend the presumed winning party for remaining calm even while INEC delays announcing the obvious victory. I also commend the runners up for running a good race that came close to unseating the incumbent party if only they had combined their votes in an alliance from the outset. Finally, I commend INEC for appointing respected scholars as the electoral officers to help increase transparency in the electoral process.

The chaos that we witnessed during the election is not entirely due to the ineffectiveness of INEC’s planning or incompetence in implementation. It is part of what has been theorized as African Fractals – the fact that Africans, due to the experience of having been hunted as prey for hundreds of years, devised complex non-lineal geometrical styles of social organization to make it more difficult for any invaders to capture them, conquer them or enslave them. The democratic element of recursive self-organization in African Fractals may also have been evident in Anambra State where the minority parties may have combined to outspend the winning incumbent party and yet the people themselves clearly indicated that the fish at hand was worth more than two in the river Niger.

Also worrying is the fact that only about one third of the electorate came out to vote while some registered voters could not find their names on the voting list. To improve on this turn-out record, the Electoral Act should be amended to enable INEC to allow provisional ballots to be cast in advance by people who may be too old or too sick to vote on the election day and also allow Diaspora citizens to vote at Nigerian embassies.

Furthermore, the budget of INEC should include millions of naira to be awarded to lucky winners whose voting numbers are drawn in a lottery from valid voters as a way of improving participation in elections. We know what is in it for the politicians fighting for office but a chance to win a lump sum could be something for the voters themselves too. There is no reason why this cannot be done by INEC from the billions of naira that the elections cost each time, the legislature only needs to add this provision to the Electoral Act.