Withdrawn Certificates-Of-Return & Moves Against May 29 INEC, Parties & Electoral Courts Must Follow Due Process & Stop Observing Laws In Breach…Intersociety – TheNigerialawyer

Onitsha, Nigeria: 21^st May 2019: The
Int’l Society for Civil Liberties & Rule of
Law is again strongly calling on the Independent
National Electoral Commission, INEC, various parties in the 2019
Election Petitions Tribunals (pre and post election litigations)
and the electoral courts handling the electoral disputes to
strictly follow due process and stop observing laws in breach. The
named must also avoid bastardization of the fair hearing principles
clearly outlined in the country’s Constitution 999 as amended and
stop being clever by half or cutting corners in matters of
dispensation of electoral justice in Nigeria or any part
thereof.

Intersociety also strongly stands against
and will continue to stand against persons, bodies and forces
working through courts or using other despicable means to stop or
scuttle the inauguration or swearing in ceremonies next week, being
29^th May 2019, of the newly INEC declared elected
public office holders in Nigeria; be they Governors and their
deputies, Senators, House of Rep Members, State Legislators or
President and Vice President.

Our informed position is sequel to yesterday’s
(20^th May 2019) announcement by INEC through its
National Commissioner/Chairman of Information & Voter
Education, Barr Festus Okoye that “INEC has withdrawn 25
Certificates-of-Return from 25 holders of same, based on court
orders”; out of which 20 were withdrawn from APC candidates,
declared winners by the Commission and given to other APC members
over intra party litigations. The Commission further said that two
of the 25 Certificates-of-Return were withdrawn from PDP members
and given to other PDP members, while three were withdrawn from APC
and PDP and given to other parties and their candidates.

On the other hand, several illegitimate moves through courts and
others by some parties, their lawyers and loyalists are being
publicly reported from right, left and center across the country,
designed to stop or scuttle the swearing-in or inauguration on
29^th May 2019 of some public office holders or
would-be public office holders recently declared returned by INEC
during the recent General Elections.

Apart the pendency of a motion or application filed by the
Presidential Candidate of the HDP before the Presidential Election
Tribunal asking for an order stopping the swearing-in of President
Muhammadu Buhari on 29^th May 2019, the incumbent
Governor of Sokoto State, Mr. Aminu Tambuwal had also few days ago
raised alarms, saying that some forces loyal to APC and its
governorship candidate in Sokoto State are working clandestinely to
stop or scuttle his second term inauguration and swearing-in on
29^th May 2019. These instances are just to mention
but few. We see these as act of desperation and threat to further
undermine the country’s democracy and rule of law.

It saddens our heart that despite the fact that laws guiding the
conduct of elections in Nigeria, issuance of Certificates-of-Return
to candidates declared returned by INEC and court redresses by the
aggrieved parties and their lawyers are clearly written in black
and white and unambiguously spelt out in both the 1999 Constitution
and the Electoral Act of 2010 with their relevant amendments; the
Independent National Electoral Commission, INEC, and some desperate
parties including political parties and their candidates have
chosen to resort to cutting corners than to follow due process and
stick to fair hearing principles enshrined under Section 36 of the
1999 Constitution.

By the clear provisions of the Electoral Act of 2010 as amended,
once a Certificate-of-Return is issued to an INEC declared winner,
the Commission is disempowered by the same Electoral Act and the
Constitution (through its fair hearing provisions) to withdraw same
until the court of last instance or resort revokes or nullifies its
validity.  For purposes of clarity and records, in matters of
pre election litigations in Nigeria with their newly stipulated
time limits, be they Presidential, Governorship or National/State
Assembly; the court of last instance or resort is the Supreme Court
of Nigeria (see S.233 (2) (e, etc) of the 1999 Constitution).

Further, in matters of the National Assembly/State Assembly post
Election Petitions, the Court of Appeal is the court of last resort
(see S. 246 (1) (b) and (3) of the Constitution). In matters of the
post Presidential Election Petitions, the Supreme Court of Nigeria
is the final court or court of last resort (see S. 233 (2) (i) of
the 1999 Constitution); and in matters of the Governorship post
Election Petitions, the Supreme Court of  Nigeria is the court
of last resort (see S.233 (2) (iv) of the Constitution).

While the maximum of ten months is required in disposing all
post Election Governorship cases, terminating at the Supreme Court,
eight months each are required to dispose all post Presidential
Petitions (starting at Appeal Court and terminating at Supreme
Court) and the National/State Assembly post Election Petitions
(starting at tribunal, which is equivalent to a High Court and
terminates at the Appeal Court).

Strikingly, INEC’s lack of constitutional or legal powers to
withdraw or revoke or retrieve or nullify the
Certificates-of-Return especially after they have been issued to
declared and returned poll candidates or withholding of same is
clearly and unambiguously provided in Section 75 of the Electoral
Act of 2010 as amended.  Also where laws are written in black
and white in a statute such as the 2010 Electoral Act of Nigeria,
electoral policies and guidelines become mere tissue papers
especially when such policies and guidelines rise in contest or
conflict with the written law.

Accordingly, therefore, Section 75 (1) of the Electoral Act of
2010 as amended clearly provides as follows: A
sealed Certificate-of-Return at an election in a prescribed form
shall be issued within 7 days to every candidate who has won an
election under this Act-Provided that where the Court of Appeal (in
the case of National/State Assembly) or the Supreme Court (in the
case of Presidential and Governorship or pre Election Petitions)
being the final appellate court in any election petition as case
may be nullifies the Certificate-of-Return of any candidate, the
Commission shall within 48hrs after the receipt of  the order
of such Court, issue the successful candidate (victorious litigant)
with a valid Certificate-of-Return. (And) 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 as the winner by that Court.

By the above provisions, once a candidate declared returned,
whether rightly or wrongly, by INEC at an election is issued with a
Certificate-of-Return, INEC is legally or constitutionally
disempowered to reverse or withdraw the issued C-O-R, except by
order of a court of last resort or court of last instance in a
particular pre election or post election petition.  Also, not
even the order or judgment of the court of first or second resort,
other than court of finality or last resort, can invalidate the
issued Certificate-of-Return; provided the candidate who lost in
the suit exercises within a stipulated time frame his or her right
of appeal and fair hearing in accordance with Section 36 (5) of the
Constitution.

We hereby make bold to say that the present leadership of INEC
in Nigeria is engaging in clear acts of illegality by still
withholding the Certificates-of-Return of the outgoing Governor of
Imo State, Mr. Rochas Okorocha and others yet to be issued with
same. The Commission further observes the laws of Nigeria, i.e. the
Constitution (1999) and the Electoral Act (2010) in gross breach by
magisterially and dictatorially withdrawing the 25
Certificates-of-Return it earlier issued to the declared winners of
various legislative polls across the country. The Commission must
therefore retrace its steps from path of perdition, refrain from
behaving as an outlaw and release all
the Certificates-Of-Return in its
illegal possession to their rightful owners without further
delays.

Signed:

Emeka Umeagbalasi, Board Chair; Obianuju Joy Igboeli,
Head, Civil Liberties & Rule of Law; and Chinwe
Umeche,

Head, Democracy & Good Governance

Contacts: Mobile
Line: +2348182411462,
+2348174090052, Email: [email protected], Website: www.intersociety-ng.org^[1][2]

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