Powers Of INEC To Retract A Result Already Announced; The Pros And Cons Of Section 65 Of The Electoral Act 2022 As Amended

By Akintayo Balogun Esq.

The several amendments/inclusions that came with the Electoral Act 2022, continue to draw attention and concerns from public affairs analysts, political office holders, politicians, legal minds, and the general public. The dilemma that followed the addition of section 84(12) to the Electoral Act 2022, was finally laid to rest when in a unanimous decision by a seven-man panel of Justices led by Justice Muhammad Dattijo, the Supreme Court held that it lacked the jurisdiction to entertain the suit which it said amounted to an abuse of the judicial process. It held that the President was not a proper person to approach the court with such a suit, owing to the nature of reliefs that were sought. The President and the Attorney General of the Federation had taken the National Assembly to the Supreme Court as the court of first instance to seek the removal of section 84(12) from the Electoral Act as the same was inconsistent with the provisions of Sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution as well Article 2 of the African Charter on Human and Peoples Rights. Following the decision of the Supreme Court, the section since remained a part and parcel of the Electoral Act 2022.

Recently, attention has been drawn to section 65 of the Electoral Act which makes provision concerning the announcement of results by returning officers of the Independent Electoral Commission (INEC). The section is herein produced in full.

65.—(1) The decision of the returning officer shall be final 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 :

Provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations, guidelines, and manual for the election.

(2) A decision of the returning officer under subsection (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceedings under this Act.

This section implies that where a returning officer makes an announcement or takes a decision as it relates to unmarked ballot papers, rejected ballot papers, declaration of scores, and the return of a candidate, that result is still subject to review by INEC, as to whether it was made voluntarily or per not provisions of the law, regulations, and guidelines, and manual for the election. It further implies that the announcement or decision taken by the Returning Officer is not a final decision as the same can be changed based on review by INEC if done within 7 days.

The inclusion of this section in the Electoral Act might not be unconnected to the incident that happened in Imo State stated above, where INEC insisted that Sen. Rochas would not be given the certificate of return having confirmed from its investigation that the returning officer for Imo West senatorial district election had reported that he declared Governor Okorocha winner “under duress”. However, the Abuja division of the Federal High Court ordered the Independent National Electoral Commission (INEC), to with immediate effect, issue a certificate of return to former Imo State governor, Rochas Okorocha, as the senator-elect for the Imo West Senatorial District. The court had stated thus amongst others:

“once the declaration is made under Section 68(c) of the Electoral Act, INEC has become functus officio and INEC has no lawful authority to withhold the certificate of return for any reason whatsoever….Therefore the issue of duress is unknown to both the Electoral Act and the Constitution.”

However, with the introduction of section 65 into the Electoral Act, this judgment of the Federal High Court has been overtaken and is no longer applicable. A returning officer or the commission only becomes funtus officio after 7 days of the announcement of the result.

One interesting thing about this section is that it is not new to the Nigerian electoral system, but this is the first time that it is being codified. We had a few isolated cases in the recent past.

1. In February 2019, the Returning Officer for the Imo West Senatorial District election, Professor Ibeawuchi Innocent, said that he declared Governor Rochas Okorocha the winner of the poll under duress. While addressing the press, they stated thus “I declared this thing before under duress; I’m still under duress declaring this one,” INEC, according to its spokesperson, refused to recognize Rochas as the winner of the election having confirmed that the returning officer declared the said results under duress.
2. During the same election, the Returning Officer for Anambra South senatorial election in last Saturday’s poll, Prof Meshach Umenweke, has denied publication by some national dailies that he declared the candidate of the Young Progressives Party(YPP), Ifeanyi Ubah, winner to save his life. He stated that he never at any point said he announced the result of the Anambra South senatorial election under duress nor in the mode that is implied (by the newspapers). He then re-affirm his declaration that Ifeanyi Ubah, the candidate of the YPP, is the winner of the Anambra South senatorial seat.”
3. On 7th November 2021, The Returning Officer of the Orumba North Local Government Area, Dr. Michael Otu, said he nearly lost his life when thugs attacked the Local Government collation center during the Anambra Governorship Election held in the state. He said that he was teargassed when trouble ensued. He narrated that the score sheets were mutilated and he was made to sign a fake result under duress. He further stated that INEC officers attached to him were compromised.

In my view, this novel section of the Electoral Act comes with its advantages and disadvantages.

The advantage of the section is that it allows the Returning Officer to make retractions where a result has been declared under duress or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election. We know the terrain in Nigeria and how elections have over the years been tainted by hooliganism, ballot-snatching, theft of election materials, kidnapping of political opponents, the assassination of political rivals, arson, assault, and physical destruction of election materials, and even intimidation, and outright molestation or killing of election officials. These listed challenges could affect the returning officer who in turn is forced to announce a result in favour of a particular candidate. But once the coast is clear and the tempers are down, the returning officer with the intervention/investigation of the commission can retract on the result announced and give proper grounds/reasons for the retraction.

The disadvantage of this provision is that a Returning Officer that allows him or herself to be influenced by politicians or moneybags may decide to retract a good result in favour of a tainted result. These are the sides to section 65 which makes it a good legislation and the same time a bad one.

As it stands today, a returning officer can retract a result upon investigation by the commission once it is proven that the announcement of the result was done voluntarily or not done in accordance with the provisions of the law, regulations and guidelines, and manual for the election.  This remains the position of the law and so it remains until it is either set aside by another legislation or by an order of the court. The good part of the legislation is that the decision of the Returning Officer or the commission, whether the original result announced or the reviewed result, both results may be subject to an election tribunal petition proceedings as provided for in Section 65(2) of the Act.

Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice based in Abuja, FCT. A prolific writer, public affairs analyst and commentator on national issues.,akinson6@gmail.com