The Independent National Electoral Commission (INEC) is set to issue a certificate of return to Orji Kalu, a former governor of Abia State, who was controversially declared winner of a senatorial election in the state last month.
The commission listed Mr Kalu as one of the 100 senators-elect from the February 23 election who would be issued return certificates at a ceremony scheduled for Thursday morning in Abuja.
But the results released by INEC for the Abia North Senatorial District showed that Mr Kalu did not win the election outright and should not have been declared winner by the returning officer.
Mr Kalu polled 31,201 votes, according to Charles Anumudu, the INEC returning officer for the district, while incumbent senator, Mao Ohuabunwa of the Peoples Democratic Party (PDP), scored 20,801 votes in the election.
However, 38,526 votes were cancelled during the exercise, a number significantly greater than the margin of 10,400 between Messrs Kalu and Ohuabunwa.
A key guideline for electoral officers required that no winner can be declared in an election in which number of cancelled votes is greater than the margin between the first-two highest votes scorers.
INEC has widely applied the guideline in this year’s cycle, using cancelled results to trigger dozens of re-runs, including in six governorship polls.
The Ondo South Senatorial District election was declared inconclusive because the margin of victory was 27,036 against cancelled votes of 28,047.
The PDP’s candidate, Nicholas Tofowomo, had scored 79,029 against APC’s Yele Omogunwa who scored 51,993 votes. Even though it did not make any difference, since only 1,011 votes were at play, INEC, nonetheless followed through on its guideline and held a re-run before declaring Mr Tofowomo winner.
But the 38,526 cancelled votes in Abia North could decide the winner between Messrs Kalu Ohuabunwa in a re-run.
Festus Okoye, a spokesperson for INEC, told PREMIUM TIMES the commission was ‘helpless’ because a winner had already been declared.
Mr Okoye said when results are erroneously declared, the commission cannot exercise a discretion, but a victim could approach the court for urgent redress.
When reminded that INEC withheld issuance of return certificate to Rochas Okorocha after the returning officer alleged duress, Mr Okoye said the situation was different.
He said INEC exercised ‘discretion’ in Mr Okorocha’s case even though the returning officer had declared the outgoing Imo State governor winner because the official alleged compromise of his safety.
But in the case of Abia North election, the returning officer did not say he declared the result under duress or his life was threatened in any way, and changes cannot be made even though it was obvious an error had been committed.
Joseph Iloh, the resident electoral commissioner for Abia State, echoed Mr Okoye’s position to PREMIUM TIMES. He added that all the party agents signed the erroneous sheet.
Mr Ohuabunwa said his agent is a lawyer and could not have signed the sheet, challenging the electoral chief to present evidence of his claim.
The Electoral Act empowers only the court to overturn a declaration by an electoral officer in an election. It was unclear whether Mr Okorocha had approached the court to challenge INEC’s decision on his matter.
Mr Ohuabunwa said on Wednesday he approached the Federal High Court for an order to prevent INEC from issuing a certificate to Mr Kalu on Thursday, but instead conduct a re-run election for the cancelled polling units.
Election and civic engagement expert, Samson Itodo of YIAGA, has expressed concerns about “arbitrary” application of the law, warning that any fragment of inconsistency could threaten the credibility of the 2019 election on which chief umpire Mahmood Yakubu hopes to build a legacy.