Does INEC Posses Constitutional Backing to Review Kano Governorship Election Return and Declaration?
In a world press conference held on 21st March, 2021, the legal adviser for the Kano chapter of the All Progressives Congress (APC) demanded the Independent National Electoral Commission (INEC) to review the return and declaration of Engineer Abba Kabiru Yusuf as the duly elected governor of Kano State in the election conducted on the 18th March 2023.
The grounds upon which the legal adviser wanted the election to be reviewed was that “the declaration made by the returning officer is contrary to the combined provisions of section 24, 5 of the Electoral Act, 2022 Article 62 of the INEC Regulations and Guidelines for the Conduct of Election, 2022 and items 4.2.16 Note 32 at page 84 and item 6 of the Table at page 93 of the Manual for Election Officials”.
The legal adviser faulted the returning officer ‘for distinguishing cancellations due to violence and over-voting and deciding only to consider the later in the final consideration of the margin of lead”.
Based on the above, the legal adviser urged INEC to review the declaration, relying with a measure of confidence, on section 65 of Electoral Act, 2022.
Before answering the question whether INEC can review a declaration or return, the provision of section 65 of the Electoral Act is of immense important to us. The section is cited below:
‘The decision of the returning officer shall be final on any question arising from or relating to:
- Unmarked ballot paper
- Rejected ballot paper; and
- Declaration of scores of candidates and the return of candidates.
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. (Underline supplied)
2) A decision of the returning officer under subsection (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceeding under this Act.’
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The proviso in the section is an innovation brought about by the Electoral Act, 2022. There was no such proviso in the repealed Act. It was introduced to cure a mischief experienced in the previous elections where electoral officers were threatened to make declarations involuntarily without their will and the moment such declarations were made, it became binding, notwithstanding the fact that involuntary actions have no legal efficacy.
If the proviso has not been inserted in section 65 of the Act, there would have been no contemplation of whether the electoral body can review declaration and return. The section is wider in scope by using the word ‘involuntary’ instead of the word ‘under duress’ as well as phrase ‘contrary to the provisions of the law; regulations and guidelines, and manual for the election’.
A person can enter into a contract involuntarily without being threatened to do so and can equally make involuntary confessional statement without fear, bodily harm, injury or threat. This could be a discussion for another day.
A dispassionate reading of the provision of section 65 of the Electoral Act vis-a-vis the provisions of the 1999 Constitution and judicial pronouncements will reveal that the power to review election return and declaration is not as easy as the legal adviser wants it to be.
Be that as it may, the section empowers INEC to review declaration and return in two circumstances as follows:
- Where declaration was made involuntary.
- Where the declaration was made contrary to law.
It should be understood that by the provision of section 18 of the Interpretation Act, election guidelines, regulation and manuals are subsidiary legislations and therefore part of our laws. This is in accordance with and plethora of legal authorities.
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There is no dispute that involuntary actions, such as INEC involuntary declaration and return, have no legal efficacy.
However, in this scenario, it was not the claim of the legal adviser that the declaration of Engr. Abba Yusuf was made involuntary. The declaration was voluntarily made.
Our focus will now be on whether INEC, pursuant to section 65 of the Electoral Act, can review declaration and return because it was not made in accordance with Law.
The word ‘review’ as a noun means consideration, inspection, or re-examination of a subject or thing. See Black’s Law Dictionary, 9th edition, page 1434. Review also means an examination of something, with the intention of changing it if necessary.
It is my candid opinion, INEC cannot review the declaration and return of Engineer Abba Kabir for a purported non-compliance with provision of the Electoral Act, 2022, INEC Regulations, Guidelines or Manual.
My reasons for saying that are as follows:
The grievance of the legal adviser was that Abba Kabir Yusuf was not declared and returned in accordance with the law. In other words, he was not validly returned and elected as governor, the mandatory provisions of the law having not been complied with. In other words, there was undue return and declaration.
The legal adviser is calling upon the INEC to review, consider, inspect and or re-examine the declaration and return because it was not validly done. More aptly put, the legal adviser wanted INEC to determine the validity of the declaration and return of Engineer Abba Kabir Yusuf with the intention of changing it if necessary.
By the provision of section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is the exclusive prerogative of the Election Tribunal to determine whether an election, including return and declaration has been conducted in accordance with the Electoral Act. The section provides as follows:
‘There shall be in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Election Tribunals which shall to the exclusion of any other or tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of governor or deputy governor or as a member of the legislative house’
The Supreme Court had stated in many decisions that no person, authority or executive body has power to usurp a power exclusively donated to court or tribunal by the Constitution. In the case of Amaechi v INEC (2008) LPELR-446, the apex court stated that it has no power to question an election or return without same having been brought before it by way of appeal and in post-election dispute that passed through the Election Tribunal. The court held at page 95 -96 paragraphs E-G per Katsina-Alu JSC (as he then was) as follows:
Additionally, this court (i.e. Supreme Court) has no jurisdiction to either cancel an election or order fresh elections since it is not an Election Petition Tribunal as established under sections 285 and 246 of the 1999 Constitution of the Federal Republic of Nigeria. It is clear from the provisions of these sections of the 1999 Constitution that it is only an Election Petition Tribunal as well as the Court of Appeal that have jurisdiction to hear and determine election petitions. It is within their exclusive authority and power to order for cancellation, annulment, or fresh elections as the case may be.
The Court held the same position in the case of ANPP v The returning Officer Abia State and Others (2007) LPELR-425 where the Court held per Oguntade JSC as follows:
Section 285(1) of the 1999 Constitution vests exclusive jurisdiction in an election matter in the Election Tribunals.
To say that whenever an election was not conducted in accordance with the Electoral Act, guidelines, regulations or manual, the INEC has power to review same, then it means that the powers given to Election Tribunal would be usurped by INEC as no election could be filed without allegations that the provisions of either the Constitution Electoral Act, Guidelines Regulation or Manual have been violated.
The constitution vested the power to determine the validity of election return and declaration in the Election Tribunals specifically designed for the purpose. Any attempt to tamper with the powers of the tribunal by an act of the National Assembly or law will be unconstitutional to the extent of its unconstitutionality.
It should be noted that section 65 of the Electoral Act has recognized the powers of Election Tribunal to review the decision of the electoral officer whose powers was described as final.
Another point that could prevent INEC from reviewing return and declaration is the fact that, before exercising the power the Commission has to hear from the other side. In other words, the Commission must afford the other side fair hearing and in doing so, it has to interpret the laws which were alleged to have been violated by the electoral officer, more so in this case where the complaints was that the provisions of the guidelines, regulations and manuals have not been complied with.
But then, it is already settled that it is not within the mandate of the electoral body, being part of the executive, to interpret laws. In the case of the A.G. FEDERATION v GUARDIAN NEWSPAPERS LTD (1999) LPELR 3162 (SC), it was held per Karibi-Whyte, JSC at page 71, paras A – C, as follows:
‘A notable feature of the amended Constitution of 1979 is the distribution of the exercise of governmental function among the three principal and separate departments of the Legislature, the Executive and the Judiciary. The Constitution also prescribed the scope and limits for each department and that within its jurisdiction; the exercise of power is supreme. Accordingly, implicit in the powers so vested, the one was not to interfere in the exercise of the powers of the other, except to the extent to which the Constitution confers such power of interference.
It is not part of the mandate of the electoral body as assigned to it by the constitution to interpret the electoral laws when there is dispute between the parties to an election. It would amount to violation of the doctrine of separation of power for the electoral body to engage in such exercise. Our constitution is very clear and specific on separation of the powers between the three arms of government at both Federal and State levels; thus, none of them is allowed to exercise or usurp the function of the other. In Sokefun v. Akinyemi [1980] 5-7 S.C. (Reprint) the Supreme Court per Fatayi-Williams, CJN said at page 146 as follows:
The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever.”
That being the case, the electoral empire is left with one and single honourable option: that is to advise the aggrieved candidate to channel his grievance to the appropriate quarters. The second limb of section 65 of the Electoral Act is inconsistent with the constitution and any law that finds itself in such and unfortunate state of inconsistency with the constitution shall remain void to the extent of that inconsistency.
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