It’s Unconstitutional For INEC To Declare Elections Inconclusive By Madaki O. Ameh

As the country grapples with the spate of inconclusive elections by INEC, it is important to examine the powers of INEC to conduct elections and whether the penchant for declaring elections inconclusive is within the scope of its lawful powers under the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act, 2010 as amended.


The relevant provisions of the law and regulations in this respect are Section 179 of the 1999 Constitution, Section 26 of the Electoral Act, 2010 as amended, and Regulation 41(e) of the 2019 INEC Guidelines.

Section 179(2) (a) and (b) of the 1999 Constitution provides the following conditions to be fulfilled in a contested election to be declared Governor of a State : –
1. Securing a majority of the lawful votes cast in the election, and
2. Securing 25% of the votes cast in 2/3rds of the LGAs in the State.

Section 26 of the Electoral Act 2010 empowers INEC to postpone elections in areas where there is a real security threat or natural disaster which makes it impossible to conduct elections in such areas, and if the non conduct of elections in such areas would affect the overall outcome of the elections.

Apparently relying on the above provision of the Electoral Act, 2010, INEC issued Regulation 41(e) of its Guidelines, which provides that where the margin of lead between the two leading candidates is less than the total number of registered voters in the areas where elections were not conducted, the elections will be declared inconclusive until supplementary elections are conducted in such areas.

However, in making regulations pursuant to its powers under the Constitution and the Electoral Act, INEC does not have the powers to make law, or to override the express provisions of the Constitution or the Electoral Act. INEC guidelines can only provide the procedural steps to be followed in the course of conducting elections. Once a candidate has fulfilled the express provisions of the Constitution which qualifies him or her to be declared elected, INEC cannot, by its regulations, deny such a candidate the fruits of his victory by importing its own criteria for declaration of a victor in an election, which was not contemplated by the substantive law.


The proper position of the law therefore is that once a candidate has secured the majority of the lawful votes cast in an election and has also secured 25% of the votes cast in 2/3rds of the LGAs in the State, such a candidate is automatically entitled to be declared elected for the office of Governor, without more. The only condition under which such a person will not be declared winner is if the security situation or natural disaster is of such a nature as to render it impossible for any candidate to fulfill the provisions of Section 179(2) (a) and (b) of the 1999 Constitution.

This position is further reinforced by the fact that voting is not mandatory in Nigeria, and so there is no guarantee that on a rescheduled date, the conditions would be conducive for voting to take place, or that the eligible voters will even turn out to vote.

Moreover, Regulation 41(e) of the INEC guidelines which refers to registered voters is superfluous, because not all registered voters are eligible to vote. It should have referred instead to eligible voters, which is a reference to registered voters who have collected their Permanent Voters Cards (PVCs).

Since it is not the duty of the contestants to provide security for the conduct of elections, it is inappropriate for them to be at the receiving end of the inadequacies of the security agencies whose duty it is to provide security for the conduct of elections, especially in the absurd situation in Nigeria where the conditions of insecurity are often orchestrated, either by the security agencies themselves, or by opposing contenders for public office.

To hold otherwise would be to make all elections in Nigeria potentially inconclusive at the instance of INEC, with the attendant costs and huge implications for Nigeria’s democracy.