JUSTICE Okon Abang of the Federal High Court in Abuja on
7th June, 2019 ordered the Independent National
Electoral Commission (INEC) to issue a Certificate of Return to
Owelle Rochas Okorocha as Senator-elect for Imo West Senatorial
District following an application he filed against the Commission
for withholding his Certificate of Return. In the judgment, the
judge emphatically stated “Once a declaration is made and returns
thereafter, INEC becomes functus officio and has no power under any
law to withhold Certificate of Returns….action of INEC not to issue
Certificate of Return is unknown to the Constitution and the
Electoral Act”.
The Returning officer in the Senatorial District, Professor
Innocent Ibeawuchi had alleged he declared Okorocha a winner under
duress, and as a result, the Commission withheld the Certificate of
Return. Strangely, apart from the allegations, the Commission has
not presented another version of result as authentic to show the
discrepancies as well as equip other contestants accordingly to
face Okorocha at the Electoral Tribunal. By the silence despite
alleged ‘unadulterated results’, is it possible that INEC is merely
playing on people’s intelligence? Consequently, Okorocha after
scores of futile demand for Certificate of Return approached the
court for redress.
Fundamentally, Section 75(2) of the Electoral Act provides,
“Where the Commission refuses 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 winner by that court”. By the
construction of the above provision, it is undoubtedly, absolutely
unlawful for INEC to withhold under any circumstances, a
Certificate of Return after declaring a candidate as winner. The
terms “refuses or neglects” used in the Act practically, sensibly
show that such actions are offensive, impermissible and a faux pas.
In other words, all that the candidate needs before the court is
the result sheet showing that he was declared a winner. Any other
things can wait at the tribunal. INEC characteristically concludes
its major tasks the moment it announces a winner.
Of course, such weighty allegations of misconducts against an
aspirant to a public office are condemnable and shouldn’t be
condoned. Nonetheless, it doesn’t fall within the duties of the
Commission but exclusively the law enforcement agency – Police.
INEC’s duty commences from organizing, conducting to supervising
elections and not to delve into criminal matters. The statutory
agency that handles civil disorders including people that levy wars
on constituted authorities in the discharge of official duties
exists. Equally, a constituted body is vested with the
responsibility for all redresses vis-à-vis election matters.
Suffice to say that where the Commission has allegations of
irregularities in the course of a poll but didn’t cancel the
exercise, the appropriate action is to formally shift it to the two
relevant agencies; the Police if crimes are involved for
prosecution, and then the Election Tribunal for redress. This
procedure is ethically anchored on the fundamental principle of
law, “Nemo judex in causa sua” (One cannot be a judge in his own
case). Hence, the Commission cannot aptly be a complainant and also
the judge in its own case.
If allowed, winners will begin to emerge at the mercy of INEC
and politicians instead of people’s votes. In fact, allowing INEC
to allege, decide and punish is a clear drift to dictatorship or
tyranny which may turn against any directions someday knowing that
whatever goes around comes around. An Anglo-Irish philosopher,
Edmund Burke said, “Law and arbitrary power are at eternal
enmity”.
Beyond that, a Certificate of Return as a rule, albeit is issued
in the candidate’s names, but essentially, it is the sacred mandate
of the people. It goes beyond a personal property, and commission
of crimes by the holder doesn’t affect the mandate except a court
of competent jurisdiction ruled otherwise. It is only a court that
can nullify a mandate, and therefore immaterial that a candidate
allegedly did this or that, the votes of the people must count
until proved otherwise. That’s the hallmark of universal suffrage –
the people decide.
Do I therefore support or encourage illegalities and unlawful
conducts in the society; a thousand times NO. Anybody that breaks
the law should face the wrath of the law. However, the point is
that withholding Certificate of Returns under any guise is ultra
vires to INEC based on the law that established the Commission. The
same way hoodlums are subjected to prosecution over criminal
conducts during polls will apply to a candidate believed to have
indulged in unlawful conducts during the exercise. But it clearly
has no nexus with people’s mandate. If not, corrupt politicians
will connive with Returning officers and use sundry allegations as
a new ploy to deny electorates their mandate after emerging a
winner. It implies issuance of Certificate of Returns may begin to
trade for megabucks in future.
Of course, the electoral umpire has powers to declare a poll
inconclusive if the criteria are met, otherwise, everything shifts
to the constituted tribunal after conclusion. To sum, there is no
room for discretions to apply as it is an uncomplicated matter
without a trace of lacuna. By Electoral act, INEC has no powers to
interfere with a result once declared. Thus, Justice Abang
distinctively gave a sound judgment devoid of emotions and
sentiments; instead it overwhelmingly synchronized with rule of law
and sense of responsibility. If discretion must be applied by the
court, it should be to award costs against the Commission for its
arbitrariness. Incidentally, court lacks jurisdiction to grant
reliefs not expressly sought (Akinterinwa v Oladunjoye (2000) 4 KLR
(pt 99) 753).
Umegboro is a public affairs analyst and
Associate, Chartered Institute of Arbitrators (United Kingdom).
07057101974-SMS only , https://carlumegboro.com/
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