Okorocha V INEC: When The Hunter Is Hunted By Ebun-Olu Adegboruwa, Esq

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Ebun-Olu Adegboruwa

The setting was the office of the Independent National Electoral Commission (INEC) in Orlu, Imo State. The main character was Professor Ibeabuchi Izuchukwu Innocent, of the Federal University of Technology, Owerri, appointed by INEC as the Returning Officer for Imo West Senatorial Zone election of February 23, 2019. The contestants in that election were the incumbent governor, Owelle Rochas Okoroacha, for the All Progressive Congress (APC), Honourable Jones Onyeyiri of the People’s Democratic Party (PDP) and Senator Osita Izunaso of the All Progressive Grand Alliance (APGA).

The real drama started when Professor Ibeabuchi declared that he had been detained at the collation centre for days by persons loyal to Okorocha and he (Ibeabuchi) was only announcing the results under duress to save his life. He said as follows:

“My area commander, my POs, the party agents here present, members of the press, ladies and gentlemen. I have been held hostage here for days so I’m trying to ease off and take my life home back to my children and for the sake of that I am calling these results under duress.”

He then proceeded to reel out the results, but after announcing nine out of twelve local government areas that made up the zone, Ibeabuchi paused at about 9.45pm, leaving out three LGAs of Oru West, Ugwuta and Orlu. Professor Ibeabuchi said he had received an urgent call from the State Resident Electoral Commissioner, Mr. Francis Ezeonu, to return to Owerri to continue the process Monday morning. Supporters of the candidates would have none of it until Professor Ibeabuchi eventually announced the final results as follows: Okorocha polled 97,762, Onyeyiri, 63,117 and Izunaso, 30,932 votes respectively. Okorocha had won, but it was a victory that was short-lived, as his name was not listed by INEC amongst those to receive their certificates of return.

Now back to the run up to the elections. Governor Okorocha had fallen out with the Chairman of his party, Comrade Adams Oshiomole, for whatever reasons. His plan to perpetuate himself in office through his son-in-law, Mr Uche Nwosu, was firmly resisted by all and sundry. In a twist of fate, Okorocha diverted his supporters to Action Alliance Congress (AAC), as the new platform to actualize his plans. It was the height of disloyalty and perfidy, for the very chairman of APC Governors’ Forum, to be engrossed in anti-party activities. With brazen impunity, Okorocha retained his ticket for the Orlu Senatorial Zone on the platform of the APC. It was thus the case of the proverbial rat eating your toes, drawing your blood and then blowing breeze to comfort you. APC responded very strategically and decisively, leading to the present dilemma of Okorocha.

Notwithstanding his seeming treachery however, it is clear that the case of Okorocha for recognition as the Senator-elect of Orlu Senatorial Zone, cannot be faulted in law, as things stand presently. A fact which cannot be wished away is that a declaration has been made, announcing results of elections which showed Okorocha as the winner thereof. INEC as an institution established to conduct elections, has no power in law, to withhold the certificate of return of any candidate declared as winner of any election, no matter the circumstances. In this regard, the omission by INEC, of the name of Okorocha, from the list of those presented with certificates of return, is illegal and ultra vires the electoral body. It cannot stand in law, though it may be a correct way of paying back Okorocha and other alleged election robbers.

By virtue of section 68 (1) (c) of the Electoral Act, 2010 as amended:

“The decision of the Returning Officer on any question arising from or relating to 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.”

In the case of Okorocha, there was a DECLARATION of his scores in the election and he was announced and returned as elected, by INEC. However, the Returning Officer claimed that he did the declaration and return under duress to save his life. This is an allegation, coming from INEC. They are facts that will aid the Election Petitions Tribunal to take a decision on whether or not to nullify the election, in view of the alleged violence or duress. But INEC cannot in law raise an allegation of duress or violence and then proceed to investigate it and then take a decision on it. You cannot be a judge in your own cause.

Whereas I do not support that any electoral officer should be threatened or compelled to make a declaration, but once when a declaration has been made, it becomes final. It cannot be reviewed, retracted, reversed or investigated by INEC. Section 68 gives that power of review to a Tribunal or Court in an ELECTION PETITION proceedings, not in INEC office. This is clear beyond any controversy, from the letters of section 68 above. We cannot come to a point where all that is needed to rob a candidate of victory is for the returning officer to allege duress. That is not right at all. The proper place to punish those who procure votes and election results through violence is at the Election Petitions Tribunal. INEC has no power under the law, to withhold or refuse to issue a certificate of return, to a person whose scores or votes have already been declared, even if done under duress or through violence.

Section 75 of the Electoral Act provides as follows:

“1. A sealed Certificate of Return at an election in a prescribed form SHALL be issued within seven days to every candidate who has won an election under this Act:

Provided that where the Court of Appeal or the Supreme Court, being the final appellate court in any election petition as the case may be, nullifies the Certificate of Return of any candidate, the Commission shall, within forty-eight hours after the receipt of the order of such Court, issue the successful candidate with a valid Certificate of Return.”

From the foregoing, INEC MUST issue a certificate of return to every candidate who has been declared to have won an election, it has no discretion in the matter. Whether he won under duress or with violence, is immaterial. Okorocha has been duly declared and INEC has no choice than to issue him a certificate of return. The facts of how he got himself declared are for the Election Petitions Tribunal.

From the provisio to section 75 (1) above, where such certificate of return has become a subject of litigation up to the final court and it is nullified by the Court, then INEC will issue a new certificate of return to the other candidate who has succeeded in the court case, as the old certificate of return stands nullified by the court.

Thus, it is not the candidate who has been declared in any election that will go to court to compel INEC to issue him with a certificate of return, but rather for the aggrieved candidate to approach the Elections Petition Tribunal to have the certificate of return nullified. How do we begin to ask a victor to proceed to challenge his victory?

Section 75 (2) of the Electoral Act states that:

“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 the court.”

Section 75 (2) is simply meant to enforce the PROVISO to section 75 (1). It is about what happens post-litigation. It does not confer INEC with power to withhold certificate of return for a candidate that was originally declared winner of an election.

Reading section 75 (1) and (2) together, here is what the law says:

1. Once a candidate’s score or election results have been declared, INEC MUST issue him with a certificate of return.
2. Where that certificate of return has been challenged and is nullified by the court, INEC MUST issue a new certificate of return to the person newly declared by the court as winner of the election.
3. If the candidate newly declared by the court is unable to get INEC to issue him with a new certificate of return within 48 hours of the judgment of the court, then he can rely upon a certified true copy of the court judgment for his swearing-in, in place of the certificate of return.

It is clear therefore that INEC has no power in law, to review the outcome of election results or declaration of results and it has no power to withhold certificate of return. We must be careful not to create monsters and terrors from our institutions, where the law has not conferred such powers. It is however instructive that many people in Imo State and indeed all over the country feel comforted that Okorocha has now been given the same pill that he forced others to swallow whilst his tenure lasted. It is indeed a case of the hunter being hunted.

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