Does INEC Have The Powers To Withold A Certificate Of Return? By Jimmy Abia

I have read and heard people argue that the law is that once a
Returning Officer announces a winner then that declaration is final
and INEC cannot withdraw it. That is neither wrong nor entirely
correct. We must read the relevant provisions in full and within
context to understand what the law expects of the returning officer
with regard to the said declaration.

Section 68 (a,b & c) of the Electoral Act (with its
amendments) provides that “ the decision of the Returning Officer
on any question arising from or relating to-(a) unmarked ballot
paper; (b) rejected ballot paper; and (c) declaration of scores of
candidates and the return of a candidate shall be final subject to
review by a tribunal or court in an election petition proceedings
under this Act”

Section 75(2) of the Electoral Act, 2010 ( with its amendments)
states that “ where the Commission refuses and, or neglects to
issue a certificate of return, a certified true copy of the order
of a court of competent jurisdiction shall, ipso facto, be
sufficient for the purpose of swearing in a candidate declared as
the winner by that court”

From the above two cited provisions of the Electoral Act it is
abundantly clear that any DECISION of a Returning Officer on
declaration of scores of candidate and the return of a candidate
shall be final, and same shall only be subject to review by a
tribunal or court in an election petition proceedings.

The proper question to ask is: What amounts to a DECISION under
the said section? Oxford English dictionary defines a decision as:
“a conclusion or resolution reached after consideration”

. If a Returning Officer, upon making a declaration, takes a
“decision” to report an alleged coercion and compulsion to make a
declaration to INEC, that report, which is an inextricable part of
result declaration forms the decision on the issue not to issue a
certificate of return to an alleged winner of the election. That
decision not to issue a certificate of return qualifies as part of
the “ decision of the Returning Officer on any question arising
from or relating to …declaration of scores or return of a
candidate…” within the meaning and intendment of Section 68 of the
Electoral Act.

A Returning officer is only to make such declaration voluntarily
and not under duress, or without the free exercise of the will.
That is what makes it a DECISION. An illicit declaration, procured
vi et armies, ought not to give birth to a legitimate return. INEC
is not expected to certify a return where it realises and can
establish as a fraud or where it is aware that its official was
coerced to make such return. Doing so is not only irresponsible but
unlawful. That will be tantamount to INEC knowingly and willfully
certifying a fraudulent declaration or return or one that bears the
deficiency of being procured under duress.

Duress has been defined as threats, violence, constraints, or
other action used to coerce someone into doing something against
their will or better judgement. While it is correct that the burden
of proof of such duress will shift to the person alleging such, yet
that can only be done in court after the person claiming to have
won has put forward evidence to show that the declaration was
properly done in all respects. It doesn’t stop INEC as an election
management body from taking preemptive measures to ensure that only
proper returns are made and certificated by it.

It will be extremely preposterous, ludicrous and ridiculous to
suggest that a “declaration” made by a Returning Officer under any
circumstances is final and only subject to the court, even when the
same officer says he was made to do so under duress. That is not
the intendment of the law. Allowing for such will lead to the
absurd situation where any contestant can become a winner and
receive a certificate of return if he can simply find a way to
coerce the Returning Officer at the relevant time to declare him
winner. That will amount to allowing an offender to benefit from
his crime. The announcement by the officer that he was under duress
was an inextricable part of the declaration which forms the
DECISION. Unless the declaration forms a decision, it is not
final.

However, while the law will not allow a person to benefit from
his crime, the law provides an avenue for a candidate to ventilate
his claims. Section 75(2) is very pertinent in this regard. While
it recognizes that INEC may “refuse” or “ neglect” to issue a
certificate of return, it then provides that in such case, a
Candidate may approach the court or tribunal and a certified true
copy of an order of court shall be sufficient for the purpose of
swearing in a candidate that may be declared as the winner by that
court.

Until such an order is obtained , INEC as the election
management body, and pursuant to its statutory and administrative
powers may for good cause and compelling reasons withhold a
certificate of return.

That is what has happened in the case of Okorocha and I am glad
that his lawyers have rightly advised him to approach the
court/tribunal. It is only the court that will decide his fate, but
INEC acted rightly within the ambits of the law.

Niger Govt to Spend N5.7b on Relocation of Madalla
Market on Abuja-Kaduna Expressway

Apparently disturbed by traffic gridlock, perpetual accidents
and environmental hazzards on Abuja- Kaduna Expressway at Madalla
market in Suleja Local Government, Niger State government has
approved the relocation and construction of a new market.

Commissioner for Investment, Commerce and Industry, Hon. Mudi
Mohammed announced the approval after the weekly state executive
council meeting in Minna, the state capital.

The new market which would be built under a Public Private
Partnership (PPP) arrangement of “ Built, Operate and Transfer”
will cost N5.7 billion.

According to the Commissioner, “Madalla Market has become an
issue of concern for the state government as a result of perpetual
accidents occurring within the market likewise the toll it’s
activities has on free movement of vehicles along Kaduna -Abuja
Express way. This obviously does not speak well for the traders and
commuters on the road and also to commercial activities in the
area.

“It is on this note that the state ministry of investment
proposed for the relocation and construction of the new market
which was duly approved at the cost of N5,705,422,422,032 for a
period of 15 years”

“As planned, the state government will need three years for
construction of new stalls, two years for sales to traders and give
five more years for the management of remaining stalls not sold by
the government, if any. We will be giving five more years for the
developer to recoup his money, in case he fails to do so before
then. ”

Muhammed further said that the government is optimistic that the
relocation will bring about development to the state, eliminate the
unnecessary accidents occurring within the market, improve urban
sanitation and increase the internally generated revenue of the
local government and the state.

He added that “the relocation will, most importantly, provide
employment opportunities to our teeming youths as a lot of jobs
will be created. ”

Alhaji Danjuma Sallau
Hon Commissioner for Information and Strategy