Introduction
In Nigeria, resident electoral commissioner (REC) is a title given to a person in charge of the Independent National Electoral Commission (INEC) at the state level. The REC, assisted by relevant government agencies, undertakes the presidential, National Assembly, gubernatorial and House of Assembly elections in a state. The REC acts pursuant to powers delegated to him or her by INEC’s national chairman and the commission. Among others, the duties of the REC include making available all materials required to conduct a free and fair election. The REC also monitors the activities of all ad hoc staff and provides for proper verification of election results. With some of the above functions, are INEC RECs homeless bats that neither belong to the commission at the national level nor accorded recognition at the state level? Today, we shall conclude our discourse on this vexed issue.
Who then is a member of INEC?
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These sections, therefore, make it clear that RECs have a constitutional life of their own and are not subordinated to the commission’s chairman and 12 commissioners. In any event, if we agree with Okoye that RECs are mere delegates of the commission’s power, should not the commission trust and use their reports?
That a REC cannot be present in all nooks and corners of his state at the same time is no reason to ignore his authenticated results and reports distilled from all the commission’s officers and ad hoc persons who worked directly under the HOD and the REC. How can he then not be in a position to certify his records and send same to INEC commissioners in Abuja? And how can the latter ignore RECs’ joint report and purportedly rely only on that of one/two EPM officers sent from the commission’s headquarters who know absolutely nothing about the terrain, nuances and personality traits of the voting population? In any event, an election is monitored and supervised directly by the combined team of the headquarters EPM officers, the state HOD (under whom the EPM officers work), the electoral officers and the REC.
This argument is akin to saying that the Inspector-General of Police (IGP) who was created and empowered like state Commissioners of Police by the same Section 215(1) of the 1999 Constitution, can jettison the reports of his state Commissioners of Police. Just why?
In further support of this my humble argument is Section 8 of the old Electoral Act of 2010, as amended, which provides for the staff of INEC without including the office of the REC. Yet, RECs carried out their duties effectively under the Act until the 2022 Act. The question will then be this: what are RECs under the Electoral Act, if they are not constitutionally recognised as members of INEC and also not recognized as staff of INEC? Are they bats, hermaphrodites that do not belong to any class? Why then should they be recognized at all in the first case in the Constitution? Why not simply allow the chairman and the 12 national commissioners be all-in-all, the beginning and the end of INEC? RECs, it is submitted, are not a mere disposable committee of persons, which INEC can simply appoint and arbitrarily dispense with under Section 7 of the 2010 Electoral Act. Why does the Constitution, which provides for the offices of the President and state Governors also provide for the positions of ministers and commissioners, if the latter were not important or necessary to our polity?
It will be recalled that Okoye had rightly, on 9th July, 2022, reassured Nigerians that “in line with its constitutional and legal obligations, the commission deployed monitors to the various constituencies and received reports of such exercise…the commission stands by the monitoring received from our state offices”.
Why will INEC now ignore these reports, which emanated from the very RECs who are physically on ground? Is it no longer the owner of a house that knows where the yam and knife are kept? Is it a total stranger (the visiting INEC commissioners and officials) who will know the terrain better and what took place before, during and after the primary? Can you have an army general without foot soldiers? I think not. Or, do you?
What is INEC’s reply, for example, to the glaring anomaly in Kano State, where the REC, Professor Riskwua Arabu Shehu, told the whole world that the only governorship primary INEC office monitored in Kano had produced Mohammed Sani Abacha, but with the APC leadership and INEC headquarters arbitrarily changing it to one Ambassador Wali? Yet, this was an election monitored in the full glare of the whole world amid television cameras and the print and social media.
Why will INEC be accepting from political parties names of persons who did not undergo statutory primaries monitored by its state officials, any officials and headed by the RECs and, instead, accept compromised results that lack electoral integrity from political parties on primaries that were never conducted and, where conducted, were never monitored by its state RECs and officials?
These worrisome scenarios are already playing out in many states across Nigeria, including Oyo, Sokoto, Ogun, Kano, Bayelsa, Akwa Ibom and Abia, among others.
How come, for example, that of the 26 candidates of the ruling APC that emerged from valid primaries duly conducted and monitored by INEC, Akwa Ibom State INEC office headed by the REC, Mr. Mike Igini, only two names were extracted and accepted from the entire report by INEC headquarters?
Whatever happened to Section 29(1) of the Electoral Act, which gives INEC teeth that only “candidates that emerged from valid primary” shall be submitted to INEC by political parties for publication? Why will INEC be shying away from and abdicating the statutory powers and duties generously donated to it by section 84(1) of the Electoral Act to compulsorily monitor party primaries and Section 84(13), thereof, to reject names of persons submitted by political parties who have not emerged from valid primaries? I cannot understand. Or, can you?
Summary of the powers of INEC and aspirants
To understand this issue more, it is germane to summarize the relevant provisions of the Electoral Act.
Section 53 deals with Fededral Executive Bodies such as -INEC, NJC, FJSC, NCS, NDC, NSC, RMAFC, PSC, NBC, NDSC
PART 1, Section 14(1), third Schedule to the Constitution provides for a Chairman who shall not be less than 40 years); 12 National Commissioners of 35 years just like the 37 RECs.
Section 15(3) of part 1 to the third Schedule provides for 37 RECs for the 36 States and the FCT in accordance with Section 2(3) CFRN.
Section 15 – All Electoral Commissioners must take the Oath of allegiance (no exception, whether Chairman, 12 National Commissioners or 37 RECs.
Section 15 (a) – INEC Supervises, Monitors, organizes, undertakes election to the offices of President, Vice President, Governors, Deputy Governors, Senators, House of Representatives and Houses of Assembly,
Section 15(h) – Commissioners shall delegate powers to RECs
Sections 155, 156, 157- tenure, and removal are by the president for acts of misconduct, infirmity of body or mind or any other reason- it must be supported by 2/3 majority votes of Senate.
Thirty-six states RECs shall conduct all NASS, State Assembly and Governorship primaries. The state HOD coordinates all staff, including the election political monitoring (EPM) team from the headquarters in Abuja.
Section 14(3), CFRN & Section 4 of the Federal Character Commission Act even impose more stringent criteria to satisfy Federal Character to prevent imposition of one religion, ethnic group, gender, etc.
Sections 214 & 215 CFRN provides for powers between the –IGP and Commissioners of Police.
Can only have one to three EPM staff from Abuja headquarters monitor say 20 constituency centres, 10 federal constituencies and 3 Senatorial Districts in one election? Indeed no staff from Headquarters is authorized to write an independent report of the outcome of primaries, without the authorization of the REC.
A Joint report is issued by both state monitors and Headquarters EPM staff monitors at conclusion of primaries which must be approved and signed by the REC before they are forwarded to Headquarters, Abuja, by the REC with a forwarding letter. Indeed the Headquarters staff must report to a State REC with a letter of deployment from the Headquarters EPM for guidance and liaise with the State HOD, before they act.
Section 29 (1) EA provides not later than 180 days to an election submission of list of candidates by political parties that emerged from valid primaries conducted by the political party.
Section 29 (2) provides that information submitted shall be accompanied by an affidavit sworn to by the candidate at the Federal High Court, FCT High Court stating he has fulfilled all constitutional requirements.
Section 29(3) provides that the Commission shall within 7 days publish above in the candidate’s constituency.
Section 29(5) provides that any aspirant who participated in the primaries and believes that his party’s candidate has provided false documents can go to the Federal High Court.
Section 29(6) provides the Federal High Court will disqualify the candidate and his political party and declare the candidate with the 2nd highest valid votes with necessary spread, winner.
Section 29(8) provides that a political party which presents the name of the candidate who does not meet the qualification commits an offence and shall on conviction be fined 10M.
Section 31 provides that a candidate can withdraw his candidature voluntarily, in writing signed by him and delivered personally to his party and the political party shall convey this to the Commission at least 90 days to the election.
Section 84(3) provides that no political party shall impose qualification or disqualification criteria or conditions on any aspirant or candidate in its Constitution, guidelines or rules beyond those in sections 65, 66, 106, 107, 131, 137, 177, 187 CFRN, 1999.
Section 84(13) provides that where there is failure by a political party to comply with the provisions of this Act in the conduct of its primaries, the Commission shall not include the name of the candidate for the position.
Section 84(14) provides that aspirants who complain that the conduct of primaries regarding guidelines of a political party have not been complied with in the selection or nomination of a candidate may go to the Federal High Court.
Section 285(14) also provides as section 84(14) above. Under section 84(14) of the Electoral Act, (285(14) defines a “pre-election” matter.
Conclusion
I will conclude my contribution as follows. It is crystal clear that the appointment, duration and termination of offices of RECs, including those of INEC chairman and the 12 national commissioners (all of whom form part of Federal bodies established under section 153 (1) of the Constitution), are respectively provided for in sections 154 and 155(1) and (2) of the Constitution. This provision applies with equal force to the chairman, national commissioners and all RECs. No difference could have been contemplated when no other section of the Constitution provides separately for RECs. Even disqualification criteria for membership of INEC is the same under section 156 for both RECs, the chairman and the 12 national commissioners. The same scenario plays out in the mode of removal of members of INEC and other federal bodies from office, under section 157(1). This is by the “President acting on an address supported by 2/3 majority of the Senate praying that he so be removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct”. My humble submission here is that since the Constitution has not made any other provision regarding the mode of removal of RECs, it goes without saying that section 157 (1) also applies to them with equal force, since their office is also a constitutional creation.
Indeed section 6 of the 2022 Electoral Act also replicated Section 157 (1) of the Constitution specifically for RECs.
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