By Chris Iwarah
On Saturday, the Independent National Electoral Commission (INEC) complied with the order of the Owerri division of the Court of Appeal to conduct a fresh election into Abia North Senatorial District. The appellate court gave the order after voiding the declaration of Chief Mao Ohuabunwa of Peoples Democratic Party (PDP) as winner of the exercise by the electoral umpire.
When voting in the rerun poll closed on Saturday, INEC’s Returning Officer for the poll, Dr. Ojike Nwankwo, declared that the exercise was inconclusive. He premised his decision on the problems that reportedly characterised the exercise in some parts of the senatorial district, leading to the cancellation of the results in some wards. He said while the cancelled votes amounted to more than 40,000, the difference between the PDP and Progressive Peoples Alliance (PPA) candidates, Chief Ohuanbuwa and Dr. Orji Kalu respectively, was just 195. For the INEC official, with such high figure of outstanding votes, which could sway victory either way, there was no way a winner could be declared.
There was, however, a new twist to the exercise hours after the returning officer’s declaration. The electoral umpire overruled Nwankwo and reversed itself same day. In explaining the development, the Head of Education and Publicity of INEC in Abia State, Mr. Edwin Enabor, said: “The returning officer erroneously declared the re-run election inconclusive.”
He explained: “This (Nwankwo’s declaration of the election inconclusive) was wrong. In a re-run election, a winner must emerge by simple majority. The margin of lead vis-a-vis the number of registered voters does not arise in a re-run election.”
The electoral umpire subsequently declared Ohuabunwa of PDP winner of the rerun poll with 26,009 votes. The commission also scored PPA candidate in the poll, Kalu, second with 25,814 votes.
Expectedly, INEC’s U-turn is causing ripples in the state. Other contestants in the exercise have insisted that INEC’s position is not in line with the law. State Chairman of APGA, Rev. Augustine Ehiemere, described the result as a sham. He insisted: “It`s all fraud and unacceptable to us.’’
Abia State chairman of PDP, Mr. Emma Nwaka, however, dismissed the views of their opponents. He insisted that the returning officer’s initial declaration of the poll inconclusive was in error.
In the controversy, many have wondered what the law says. This can only be answered on a proper look at the powers of a returning officer in the conduct of an election and the legal status of a rerun poll. These questions are not novel in the nation’s electoral jurisprudence. The issues have not only been pronounced upon by different courts in the country, but have also been finally settled by the Supreme Court.
On Friday, May 9, 2014, the apex court pronounced on the extent of the powers of a returning officer with respect to the conduct of an election and how to validly question the exercise of such power. That was in the case of Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36.
The Supreme Court did not only fault the Resident Electoral Commission (REC) in Kano State for interfering with the conduct of the election into Dala Federal Constituency, but also went ahead to properly delineate the scope of the returning officer’s powers.
Delivering the leading judgment in the case, Justice Kumai Bayang Aka’ahs of the apex court held: “It is a returning officer who has the responsibility to make the return of an election. The state Resident Electoral Commissioner cannot usurp the power and proceed to make an alteration of the result. He has no power to alter the result.”
In the case of the Abia North rerun poll, the returning officer was Nwankwo. As such, no other INEC official is legally empowered to alter any pronouncement he makes on the poll. The sanctity of the returning officer’s power is so protected that not even the returning officer himself can change any pronouncement made on an election in line with the Supreme Court decision in Salik v. Idris. It is immaterial that a mistake was made in making the pronouncement.
For the avoidance of doubt, Justice Aka’ahs properly stated the law when he held: “A returning officer cannot revise the return of an election. Where in the counting of votes cast in an election, an arithmetical error is discovered after the return has been made, the returning officer cannot make a second return. Any return made subsequent to the original return is invalid.”
Section 156 of the Electoral Act, 2010 (as amended), however, gives the word “return” a very narrow definition. It sates: “‘Return’ means the declaration by a returning officer of a candidate in an election under this Act as being the winner of that election.”
In line with the rules of interpretation, the definition ascribed to the term “return” is exclusive and not inclusive. In other words, the definition stands alone; it does not admit of any expansion to accommodate any other similar situation. It is, however, doubtful that the employment of the word by the Supreme Court in the case of Salik v. Idris was in the narrow sense it was used in the Electoral Act. It, perhaps, makes more sense to insist that the use of the word in Salik v. Idris extends to any decision made by a returning officer in the conduct of an election.
In this connection, it may be well submitted that once Nwankwo pronounced the Abia rerun poll inconclusive, nobody could legally alter the decision. Neither the returning officer nor any other INEC official for that matter could say anything otherwise. This still appears to be the case even where the pronouncement was made in error.
Where a mistake was made by the returning officer, only a tribunal or court of competent jurisdiction may be invited to address the perceived wrong. The Supreme Court said this much in the case of Salik v. Idris when it stated: “The Resident Electoral Commissioner for Kano State purportedly usurped the power (of the returning officer) and proceeded to make the alteration of the result…He had no power to alter the result…The option open to the appellant was to question the election of the 1st respondent under section 145(1)(d) of the Electoral Act, 2006 (now section 138(1)(d) of the Electoral Act, 2010 as amended).”
In other words, the only way to challenge the decision of the returning officer to declare the election inconclusive is to go to court under any of the grounds stated in section 138(1) of the Electoral Act 2010 (as amended). In the case of the Abia North rerun, the relevant provision may be section 138(1)(b) of the Electoral Act, 2010 (as amended), which allows dissatisfied persons to challenge an election on the grounds that it “was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.”
But even beyond the issue of the powers of a returning officer in the conduct of an election, INEC appears to have been influenced in its decision to overrule Nwankwo on the thinking that he should not have declared the election inconclusive because it was a “rerun.” So, what is a rerun election? What is the relationship between a rerun election and a cancelled election? What is the legal status of a rerun election?
The Supreme Court has long answered these questions. In Suit No. SC.98/2008, Labour Party v. INEC decided on Friday, February 13, 2009, the apex court maintained that a rerun election is synonymous with a fresh election.
Even more, the court held that where an election is nullified, the nullified poll is deemed never to have taken place in the eyes of the law.
In the lead judgment delivered by Justice Ikechi Francis Ogbuagu in the case, the Supreme Court held: “Once an election is declared null and void, the law regards whatever was purportedly done in the name or guise of an election, as not having taken place at all. In the eyes of the law, the election is void ab initio, and a fresh election is conducted as if the earlier one did not take place at all.
“I will, therefore, pause here to ask, if the consequence of a nullification of an election, means, on the admission of the appellant, ‘fresh election’, ‘or starting afresh’, is a ‘re-run’ not the same thing as ‘re-start’?”
From the foregoing holding of the apex court, INEC may just be in gross error to insist that a rerun election cannot be declared inconclusive. That position is tantamount to saying a first ballot cannot be declared inconclusive, which is not the case.
In line with the decision of the Supreme Court in Labour v. INEC, once an election is declared null and void, it is deemed that the nullified election never took place. In the case of Abia North, the rerun election goes back to the general election. Given the nullity of the first election in the senatorial district, the position of the law would be that the area was left out during the conduct of the 2015 general election.
As such, if INEC would not quarrel with declaring the original election that was nullified inconclusive, if there was a reason to do so, it has no basis in law to do otherwise with respect to the rerun election. This is so because the rerun is the “general election rerun” in the district. In other words, the rerun election is, in the eyes of the law, the original election postponed and later conducted. A rerun election, therefore, goes with all the attributes of an original or first ballot poll.
A look at INEC’s argument, however, tends to suggest that it erroneously considered a rerun poll synonymous with a runoff election, where one of the two leading candidates must emerge the winner – usually by simple majority.
Speaking on the development, Mr. Gordy Uche (SAN) likened a rerun election to asking competitors in a race to return to the starting point to restart their contest.
For his part, Mr. Aham Njoku stressed that the only option open to those aggrieved at INEC’s volte-face was to approach the courts for redress.