Interrogating Power of INEC to Review Return of Winner of Election Made by its Returning Officer within the Context of Constitution (as amended) and Logic

By

Dr. Musa Adamu Aliyu,

Introduction

The recent decision of Honourable Justice E.N. Anyadike of the Federal High Court sitting in Umuahia in the case of Chief Nduka Edede v. Attorney-General of the Federation unreported Suit No. FHC/UM/CS/26/2022 is generating debates within the legal circle.

Section 65 (1) of the Electoral Act, 2022, has also raised a vital legal issue. The Section empowered the Independent Electoral Commission (INEC) to review the declaration and return made by its Returning Officer. The power may be exercised by the Commission on two grounds vis-à-vis where the declaration and return, was made contrary to law, or it was made by the Returning Officer under duress.

The provision gives the Commission, an executive body, seven (7) days within which to exercise the power which is judicial. This write-up seeks to criticize the provision and calling upon National Assembly to amend the provision or in the alternative, the Independent National Electoral Commission should be cautious in exercising the power.

Legality of Section 65 (1) of Electoral Act, 2022, within the Constitutional Framework

Governance in modern societies like ours is designed to safeguard abuse of power by any of the three arms of government. It is the responsibility of the legislative arm of government to legislate for the good governance of a country. Whenever there is a dispute on the interpretation of the law duly made, the Courts, being the judicial arm of government, are saddled with the responsibility of resolving the issue. The moment the controversy is settled, it is a duty on the executive arm of government to ensure compliance with the judicial decision.

The provision of Section 84 (12) of the Electoral Act, 2022, struck down, by Honourable Justice E.N. Anyadike was not the only Section in the Electoral Act that was nullified in the history of this country. In AG Abia State & Ors. v AG of the Federation (2002) LPELR – 611 (SC), the Apex Court found Sections 15, 20(1) & (4), 21 (1) and 25, the proviso to Section 110 (1), Sections 111, 112, 113, 114, 115(1) – (6), 119, 120, 121 and 122, of the Electoral Act, 2001, invalid. From 2002 to date the Supreme Court has consistently rejected any attempt by any persons or authorities to do any act which is an infraction of the Constitution (as it were and now as amended). See AG Abia State & Ors. v AG of the Federation (supra), APC & Ors v Karfi (2017) LPELR – 47024 (SC); Amaechi v INEC (2008) 5 NWLR (Pt.1080) (SC).

The Independent National Electoral Commission is a Federal Executive body empowered by the Constitution to conduct Presidential, Gubernatorial, National and State Houses of Assembly and Area Council elections. The body in discharging its responsibilities (one of which is conducting election) is independent and not to be subjected to the direction or control of any other authority or person. In complementing the Constitutional powers of INEC to conduct an election, the National Assembly in the Electoral Act, 2022, in my opinion, donate judicial function to the electoral umpire. To buttress my assertion, see Section 65 (1) of the Act which empowered the Commission to review declaration and return of an election on the grounds of infractions of the law or where the declaration and return were made under duress:

“(1) The decision of the returning officer shall be final in relation to any question arising from relating to –

unmarked ballot paper;

rejected ballot paper; and

declaration of scores of candidates and the return of a candidate:

officer on ballot paper.

Provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election….”

The National Assembly and independent National Electoral Commission are a creation of the Constitution (as amended). The general power of the National Assembly to legislate on electoral matters derived its legitimacy from the Grundnorm, as such, in law, the legislative bodies are not supposed to make any legislation that may contradict the basic structure of the Constitution which is the Supreme Law of the land.

Constitutionally, one of the responsibilities of INEC is to conduct elections within its competence. Any issue or dispute out of that election is within the exclusive jurisdiction of Courts/tribunals to determine them.  One of the basic structures of the Constitution (as amended) is the doctrine of Separation of Powers which has been firmly entrenched in the Supreme law. It is my humble view that, it is ultravires for the National Assembly, based on the provisions of Section 65 (1) of the Electoral Act, 2022, to empower INEC “within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.”

The foregoing proviso in Sub-section (1) of Section 65 of the Electoral Act contradicts Sections 6 (6), (b); 239 (1), (a), (b) and 285 (1), (2) and (3) of the Constitution (as amended). These provisions donate powers to the Court of Appeal and Election Tribunals to hear and determine election petitions as to whether persons had been validly elected to the offices of the President, Vice President, Governors, Deputy Governors, Members of the Upper and Lower Legislative Houses and State Houses of Assembly and Area Councils. The provision of the Electoral Act under reference in my view has given the INEC judicial powers to determine the authenticity of declaration and return made by its returning officer alleged to have been made contrary to law or under duress.

The pertinent question is, why should INEC be a judge in its own cause? Its official, in this circumstance the returning officer, had made a declaration and return, and the same body is empowered to review the decision of its agent? That is contrary to one of the twin rules of natural justice that a person cannot be a judge in his own cause as contained in Section 36 of the Constitution (as amended).

Moreover, for INEC to determine any allegations of infractions of law in the return of election or declaration and return made under duress, the Commission has to receive a formal complaint, listen to evidence, assess the testimonies of witnesses, examine documents and decide the complaint either way. These exercises are within the exclusive powers of the court/tribunal. In Amaechi v INEC (supra), the Supreme Court, per Aderemi, JSC (as he then was) in an explicit language ruled that INEC lacks vires to exercise judicial function – “the Commission lacks the power to disqualify any candidate on its own. The power … belongs exclusively to the …. Court…” In AC & Anor v. INEC (2007) LPELR – 66 (SC) the Apex Court through Honorable Justice Katsina-Alu (of blessed memory) in a strong language held that:

“The jurisdiction and authority of the courts of this country cannot be unsolved by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever.”

The Court of Appeal in Abana v Obi (2004) 10 NWLR (Pt. 881) aptly stated where the functions of INEC start and ends per Honorable Justice Isa Ayo Salami (as he then was) at p. 367, paras. C – G:

“…the duties of INEC under Section 78 of the Constitution ends with the declaration of the result and return those of the tribunal and courts kicks off with conclusion of the conduct of the election by the declaration and return of winner under section 59(c) of the Act. The Commission’s supervisory jurisdiction of the returning officer probably exists by way of vetting the result before it was announced and return made. Thereafter there is no longer “conduct of election” to be supervised by the Commission. The power of the Commission is to ensure that the registration of voters and conduct of the election are properly carried out but, once it goes awry, after the result is declared it is incompetent to correct the error, resort would have to be made to the tribunal or court.”

Similarly, in Idris & Anor v. Salik & Ors (2009) LPELR – 8518 (CA) Honourable Justice Abubakar Abdulkadir Jega (of blessed memory) followed the reasoning of the Court of Appeal in Abana v Obi which drew inspiration from the Apex Court’s decision in Okunola v. Ogundiran (1962)1 SCNLR 150 where the Supreme Court through a lead decision of Honourable Justice Adetokumbo Ademola CJF (as he then was) affirmed the decision of trial High Court which pronounced that once the declaration of result and return was made any subsequent declaration and return is invalid.

Application of Section 65 (1) Based on Logic and Commonsense

Honourable Justice Nwali Sylvester Ngwuta, JSC (of blessed memory) in Nigerian Ports PLC v Beecham Pharmaceutical PLC (2012) LPLELR – 15538 (SC) opined that “Often times, law and logic cannot be separated.” It is a fact that the atmosphere of most of the venues where declarations and returns of elections are being made in Nigeria are charged or not conducive for the Commission to contemplate reviewing declaration and return of an election made by the returning officer.

The first challenge INEC will face is that the provision of Section 65 (1) of the Electoral Act will open floodgates of formal complaints by political parties and their candidates through their lawyers, challenging declaration and return of election on either of the grounds provided by the law. How will INEC determine the authenticity of the complaints? What rules will it use in settling the dispute? Does INEC have competent staff to handle such complaints?

It will be difficult for the supporters and agents of the contestants returned as winners to allow the Commission period of seven (7) days to review and possibly set aside the victories of their candidates. Certainly, any attempt to alter the result even if there are genuine errors in my view might be difficult for the Commission to have the comfort of correcting the errors. Just imagined during the Orubebe saga, Professor Jega was empowered to look into the allegations raised by Mr. Orubebe.

I am sure any attempt by the Professor of Political Science to consider the complaints would have met serious resistance. It will serve the best interest of the public and the safety of INEC staff for the Commission to be circumspect in exercising the powers donated to them by the National Assembly under Section 65 (1) of the Electoral Act, 2022.

Conclusion

Application of Section 65 (1) of the Electoral Act, 2022 will be a huge challenge to INEC. Legally speaking the provision is faulty and its application is bound to be chaotic. Determination of whether a declaration was made in accordance with the law is the exclusive jurisdictions of the Courts/Tribunals. Whoever alleges that declaration has been made contrary to law should approach the appropriate Court/Tribunal manned by persons with expertise to determine the claim. To empower INEC, the body that conducted the election through its agents, to review the declaration and return made by its ad-hoc or permanent staff, is awkward. It is my suggestion that the National Assembly should take immediate step to amend the Electoral Act and repeal the provision of Section 65 (1) of the Electoral Act, 2022. In the event, the provision remains in the law there is need for the Independent National Electoral Commission to be circumspect in exercising that power.

Dr. Musa Adamu Aliyu is the Attorney-General of Jigawa State

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