Osun Guber Case: Issues before Supreme Court
By Adebiyi Adebisi
Osun guber litigation poses moral and legal burden not just on Supreme Court justices but the entire judicial and political establishment in the country.
The judges who will review two previous judgments are confronted with a case dwelling on triangle of law, facts and morality.
The public expectant with keen interest are watching whether the apex court will retain her pivotal role as the core conscience of the polity.
From the beginning of the case at the election tribunal to the appeal court judgments, basic issue of facts, law and morality have played up and are being deployed by both parties.
The Supreme Court judges are now saddled with the task of shifting through the three planks to determine who is the winner of the Osun governorship election.
Shedding light on the issues is crucial for the sake of justice and equity.
FACT ABOUT OSUN GOVERNORSHIP CASE
On the issue of fact, Osun’s case appears straightforward as supported by actual trajectory of electoral event of September 2018.
Ademola Adeleke, having satisfied the constitutional requirements of majority votes and one-quarter of votes across two-third of the state’s local governments, won the election at the first ballot with margin of 354 votes.
Instead of declaring him winner, the state Returning Officer halted announcement of winner and came back to announce cancellation of seven polling units on the basis of which he declared the election inconclusive and ordered a rerun.
The first fact televised live nationally and internationally confirmed that Adeleke of the PDP indeed won at the first ballot.
Taken the facts further, the rerun was held in the seven units with the whole nation watching in horror the militarisation of the polls with violence unleashed on opposition voters and with direct efforts at stopping voting by pro-PDP voters.
There is unanimous consensus that the rerun was not an election but a violent electoral hijack on the basis of which the supposed winner was declared.
If the winner of September 22 polls was denied victory in violation of the constitution,the rerun also denied his party, the PDP fair opportunity to compete to determine the real winner of the election.
The interesting thing about both September 22nd and 27th polls was the populist attention devoted to the exercise by Nigerians.
The Osun fact file is an open secret known far and near.That a winner was denied of victory was a notorious public fact.
LEGAL ANGLE TO THE CASE
Beyond the facts briefly analysed above, the legal battle was launched with ferociousness never seen before in recent times.
Ademola Adeleke of the PDP filed a strong electoral petition with top flight legal team chaired by Dr Paul Ananaba, SAN and Dr Onyechachi Ikpeazu, SAN.
The defendants responded with equally forceful team lead by Wole Olanipekun, SAN and Akin Olujinmi, SAN.
After weeks of fireworks, it was obvious from day-to-day proceedings that the defendants were in trouble.
While the petitioner called almost 85 witnesses, the defendants were able to call only 12 while the electoral commission could not call any witness to justify her cancellation of September 22 polls, the illegality of cancellation of seven unit results and the multiple electoral violations witnessed at the September 27th rerun election.
The petitioner had posited that by relevant sections of the constitution, Ademola Adeleke should have been declared winner of the election as he clearly won at the first ballot.
Two, the petitioner contended that the State Electoral Officer has no legal power to cancel results of the seven units as such should have been done by the presiding officers at the affected polling units.
The petitioner then affirmed that the decision to cancel the seven units were illegal and therefore the rerun of September 27th was illegal and of no effect.
As to why, the petitioner participated in the rerun, the petitioner had contended that the action was in keeping with the electoral act as amended and several judicial decisions as election is not completed until a winner is announced.
Overall,the petitioner sought and got tribunal’s order to be returned as the rightful winner. This was also based on an unchallenged court decision which had struck down a clause in the electoral act which prohibited tribunal from declaring any petitioner winner of a disputed election.
The judgement had ordered the clause deleted because it attempted to place a limit on judicial powers of the court.
The defendants at the tribunal obviously conducted what many analysts described as a sordid defence.
Certain basic legal points could not be rubbished by the defence team. The actual results of September 22 which showed Adeleke as winner was indisputable.
The illegality of cancellation of the seven units to justify the rerun could also not be disputed by the defendants.
The petitioner’s claim that election is a process completed when a winner is announced and his submission that you cannot challenge an election in which you are not a participants were both not demolished by the defense.
The tribunal judgment which returned Adeleke as the winner based on the September 22 results was based on facts and legal considerations.
The majority judgement integrated facts known to the public and critical legal grounds to arrive at the decision.
The minority judgement on the other hand ignored the fact of the case and dwelt mostly on legality which the petitioner argued were equally twisted to arrive at an end.
At the Appeal court, the judgment appeared to ignore the facts and arrived at majority decision not even on legal ground but on technicality.
The majority judgement basically focused on issue of absence or attendance of the judge who delivered the tribunal majority judgement.
The appeal lead judgement wrongly held in contravention of the extent rules on disputed court records that since the judge who delivered the majority judgement was not in court on particular date, the judgement is invalid.
The rule in disputed court records had requested the affected court to sent in an affidavit to clarify the dispute. This was not done by the lead judges in clear breach of standard court procedure.
The lead judgement also breached known authorities and precedents by holding that that the appellants cannot enjoy grace of September 22 since he has participated at the rerun election.
Several authorities and subsisting decisions faulted that categorisation. It is trite in law and precedents that you cannot challenge an election in which you did not participate.
It is also a fact of law that election is not concluded until a winner is announced. So the appellants acted right by participating at the rerun because no winner was declared after the original poll.
His participation at the rerun does not abolish his right conferred by his winning September 22 poll.
MORALITY OF THE CASE
A major part of Osun drama was the question of educational qualifications of Senator Ademola Adeleke, the winner of the September 22 guber poll.
Concurrent with the litigation is a fierce onslaught against the Senator bordering on alleged forgery of school testimonial among others.
To date, more than five cases have been instituted against the Senator on the question of his qualifications. In Abuja the certificate question has become a weapon of blackmail to create a regime of morality far and beyond law in determining who actually won the 2018 election.
A bit of due diligence on what the real issue is about revealed certain facts.
First is that all the five cases on educational qualification dwell on the same subject, raising questions on why the multiple cases if political witch-hunt, blackmail and harassment are not the goal.
Secondly, the issue of qualifications has been determined by two subsisting court judgments which affirmed Adeleke’s qualifications to contest for governorship.
Three, Senator Adeleke submitted his secondary educational qualification for the election in question. He did not lie about his grades in subjects. In other words, there is no where the Senator forged any results or certificate as being alleged.
Four, the West African Examination Council under oath and in an affidavit to an Abuja Court after a summon confirmed that the Senator sat tor the secondary school examination.
Five, the principal of his secondary school under oath and in an affidavit to an Abuja High court under court summon affirmed that the Senator was a student of the school who also sat for the said examination.
Six, both WAEC and the School principal absolved the Senator if any allegation of forgery. And more importantly, the Senator fulfilled constitutional requirement of being educated up to secondary school level as a requirement to contest election.
If we are to interpret the last paragraph, we can arrive at certain conclusions. One, Ademola Adeleke did not forge any certificate or testimonial.
Two, the several cases on the issue are designed to malign, dent and soil his image as a governor-elect.
Three, his educational qualification for the governorship is confirmed by the WAEC, the statutory educational body.
Four, WAEC confirmation equally attest to Adeleke’s compliance of constitutional demand that a candidate must be educated at least up to secondary school level.
In effect, the attempt to saddle Adeleke with a moral baggage fails in the face of facts of the case.
If he had lied about his qualifications, the smear campaign could have sticked. The senator was, however, honest enough unlike some prominent politicians.
In that case, on moral ground, Adeleke again triumphed because Osun people are not oblivious of his educational qualifications before they voted for him on September 22.
IF YOU ARE A SUPREME COURT JUDGE
Considering all the three planks on which the guber battle is being fought, it is crystal clear that upholding the letter and spirit of the constitution supersedes all other considerations.
On facts of the matter, Ademola Adeleke is the true winner.
On legal grounds, his appeal for the upholding of the tribunal judgement is fool proof.
On moral ground, Adeleke is a victim of political persecution and witch-hunt designed to destroy his credibility and integrity. Despite the harassment, all facts affirm Adeleke’s innocence.
Beyond the above, the Supreme Court is the conscience of the nation. Our lord justices are not just law interpreter, there decisions are law. They embodied the truth and facts of the constitution and Peoples will. And what exactly does the constitution says?
Section 179 of the 1999 Constitution (as amended) (1), (2), (3), (4) & (5) provides how a winner for governorship must emerge.
As at 22nd September, 2018, Senator Ademola Nurudeen Adeleke had already won the election and fulfilled the requirements of Section 179(2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, supra, in respect of the Osun State Governorship Election held on the 22nd September, 2018, and is the winner by 353 votes margin in the said Election having scored a total votes of 254,698 while Adegboyega Isiaka Oyetola scored 254,345 votes.
The only power that the Presiding Officer possesses at the point of the announcement of the results was to declare the scores of candidates and return of a candidate, which shall be final subject to review by a Tribunal or Court in an election petition proceedings.This point is affirmed by Section 68 (1) ( C) of the Electoral Act, 2010 (as amended).
At the point of declaration of results, the Returning Officer of INEC acted ultra vires not to have returned Senator Ademola Nurudeen Adeleke. For parity of reasoning, the only time the Returning officer of INEC has the power not to return a candidate is where two or more candidates poll equal number of votes being the highest in an election, which scenario was provided for under Section 70 of the Electoral Act, 2010 (as amended).This condition was not applicable on the Osun case.
To stretch further, under the Constitution (supra) also, the only condition where a Returning Officer might not return a Candidate is if the candidate has not scored the highest number of votes cast at the election or such a candidate scored 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.
Again,this does not apply to Osun case.
Based on the collated scores of the candidates as announced by the Returning Officer at the end of the election of 22nd September, 2018, the Senator Ademola Nurudeen Adeleke scored 254, 698 votes while the Adegboyega Isiaka Oyetola, who was his closest rival, scored 254,345 votes.
Premised on the foregoing, Senator Ademola Nurudeen Adeleke ought to have been returned, having scored majority of the lawful votes cast at the election as well as not less than ¼ (One-Quarter) of the votes cast in each of at least 2/3rd (Two-Third) of the Local Government Areas that comprise Osun State in accordance with a community and cumulative effect of the provisions of Section 179 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and Sections 69 and 70 of the Electoral Act 2010 as amended.
The task before the apex court is thus easy,simple and direct-enforcement of the constitution as per the above,a task already done by the election tribunal.Upholding the tribunal judgement therefore covers questions of facts and law while also upholding the will of Osun people unambiguously expressed on September 22,2018.
Adebiyi Adebisi, a public Affairs Analyst sent this piece from Lagos