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).