INEC acted rightly within the ambits of the Law in Okorocha’s case – Jimmy Abia.

I have read and heard people argue that the law is that once a Returning Officer announces a winner then that declaration is final and INEC cannot withdraw it. That is neither wrong nor entirely correct. We must read the relevant provision in full and within context to understand what the law expects of the returning officer with regard to the said declaration.

Section 68 (a,b & c) of the Electoral Act (with its amendments) provides that “ the decision of the Returning Officer on any question arising from or relating to-(a) unmarked ballot paper; (b) rejected ballot paper; and (c) declaration of scores of candidates and the return of a candidate shall be final subject to review by a tribunal or court in an election petition proceedings under this Act”Section 75(2) of the Electoral Act, 2010 ( with its amendments) states that “ where the Commission refuses and, 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”

From the above two cited provisions of the Electoral Act it is abundantly clear that any DECISION of a Returning Officer on declaration of scores of candidate and the return of a candidate shall be final, and same shall be subject to review by a tribunal or court in an election petition proceedings.

The proper question to ask is: What amounts to a DECISION under the said section? If a Returning Officer, upon making a declaration, takes a “decision” to report an alleged coercion and compulsion to make a declaration to INEC, that report, which is an inextricable part of result declaration forms the decision on the issue not to issue a certificate of return to an alleged winner of the election. That decision not to issue a certificate of return qualifies as part of the “ decision of the Returning Officer on any question arising from or relating to …..declaration of scores or return of a candidate…” within the meaning and intendment of Section 68 of the Electoral Act.

A Returning officer is only to make such declaration voluntarily and not under duress, or without the free exercise of the will. That is what makes it a DECISION. An illicit declaration, procured vi et armies, ought not to give birth to a legitimate return. Certifying a fraud that INEC realises and can establish as a fraud is not only irresponsible but unlawful. That will mean that INEC knowingly and willfully is certifying a fraudulent declaration or return.

Duress has been defined as threats, violence, constraints, or other action used to coerce someone into doing something against their will or better judgement. While it is correct that the burden of proof of such duress will shift to the person alleging such, yet that can only be done in court after the person claiming to have won has put forward evidence to show that the declaration was properly done in all respects. It doesn’t stop INEC as an election management body from taking preemptive measures to ensure that only proper returns are made and certificated by it.

It will be extremely preposterous, ludicrous and ridiculous to suggest that a “declaration” made by a Returning Officer under any circumstances is final and only subject to the court, even when the same officer says he was made to do so under duress. That is not the intendment of the law. Allowing for such will lead to the absurd situation where any contestant can become a winner and receive a certificate of return if he can simply find a way to coerce the Returning Officer at the relevant time to declare him winner. That will amount to allowing an offender to benefit from his crime. The announcement by the officer that he was under duress was an inextricable part of the declaration which forms the DECISION. Unless the declaration forms a decision, it is not final.

However, while the law will not allow a person to benefit from his crime, the law provides an avenue for a candidate to ventilate his claims. Section 75(2) is very pertinent in this regard. While it recognizes that INEC may “refuse” or “ neglect” to issue a certificate of return, it then provides that in such case, a Candidate may approach the court or tribunal and a certified true copy of an order of court shall be sufficient for the purpose of swearing in a candidate that may be declared as the winner by that court.

Until such an order is obtained , INEC as the election management body, and pursuant to its statutory and administrative powers may for good cause and compelling reasons withhold a certificate of return.

That is what has happened in the case of Okorocha and I am glad that his lawyers have rightly advised him to approach the court/tribunal. It is only the court that will decide his fate, but INEC acted rightly within the ambits of the law.

My opinion

Jimmy Abia, Esq

21/3/2019