INEC can still redeem its image in the Adamawa governorshi election declaration fiasco

On Sunday the 16th day of April 2022, Nigerians witnessed the very ugly scenario that played out in the purported announcement of the result of the Adamawa governorship election by the Resident Electoral Commissioner (“REC” for short). INEC quickly halted the collation of results process but this has left many Nigerians wondering what next and particularly whether INEC is irrevocably bound by the result declared by the REC and if not, whether INEC is lawfully empowered to reverse same or whether  the development is a matter that is ripe to be presented before the Election Petition Tribunal.

The following are the legal positions on the vexed issues and procedural steps available to INEC to take in order to redeem itself from the fiasco.

1. Under the national Constitution, the Electoral Act, 2022 and  Guidelines made thereunder by INEC, it is the INEC (also referred to as “Commission”) that exclusively appoints and designates a Returning officer in any election.

2. Any person found fit by the Commission can be appointed and designated a Returning Officer to an election. It is not open to the REC to assume or take over the duty of a Returning Officer in an election without being expressly appointed and designated by the Commission.

3.The only Returning Officer fixed by law is the Returning Officer for the Presidential Election which is the INEC Chairman. No other person other than the INEC Chairman, who is the Chief National Electoral Commissioner, can make a return in a Presidential election. That responsibility cannot be delegated.

4. Hence, at the risk of repetition, anyone else can be appointed and designated a Returning Officer in the other elections- Governorship, National and State Assembly. The onus of proving the appointment is on he who alleges and in this case the daredevil Adamawa REC.

5. Specifically, if there is evidence that the Adamawa REC was appointed and designated a Returning Officer by the Commission in addition to his core duties as REC, he can lawfully and validly declare the result having acted within authority. Sadly, this is not the case.

6. Where the REC is not so designated (as is apparent in this case), his act of announcing the result is a complete nullity and ultra vires his powers as a Resident Electoral Commissioner. The REC usurped the powers of the Returning Officer for the Governorship election.

7. Following from 6 above, it means that no valid return was made ab initio. The REC had no power to make the return in the first place.

8. INEC is lawfully entitled to disregard the sham return by the Adamawa REC and continue the collation and announcement of the results through its lawful and duly appointed Returning Officer. This is the first and best option available to INEC.

Any of the candidates declared by the authentic Returning Officer from the collated results is the winner.

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9. On the other hand, assuming without conceding that it can by any stretch of imagination be contended that the Adamawa REC acted on behalf of INEC in unlawfully declaring the result, the said declaration can still be reversed by INEC vide the seven day review window embedded in the proviso to section 65(1)(c) of the Electoral Act, 2022.

10. Even where a result is announced by a duly appointed Returning Officer, INEC can still reverse itself within seven days on the strength of the proviso to section 65(1)(c) of the Electoral Act, 2022.

11. Out of abundant caution, section 65(1)(c) of the Electoral Act, 2022 provides as follows:

“The decision of the Returning Officer shall be final on any question arising from or relating to

(a)…

(b) ….

(c) declaration of scores of candidates and the return of a candidate:

Provided that the Commission shall have 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 and guidelines, and manual for the election.”

12. On the state of facts that are in the public domain, the jurisdiction of the Election Tribunal is not yet activated. It can only be activated (i) after the seven days window allowed for review or (ii) if the option of seven days review period is expressly refused by INEC. In any event, this must be by way of an election petition as enacted under section 65(2) of the Electoral Act, 2022.

13. Conclusively, INEC can and should disregard the sham result announced by the audacious REC and embark on proper collation and declaration of result by the duly approved Returning Officer or if that fails, invoke its power of review to do the needful.

14. Any candidate that wins thereafter should be declared in accordance with the procedure stipulated by law.

15. In either of the options outlined above, INEC will still be acting within bounds and parameters set under the electoral laws.

16. Impunity must not be allowed to stand. Any erring INEC staff and or security officers that participated in or aided this charade should be made to face the long arm of the law.

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17. INEC should feel compelled to redeem its battered image in this matter.

14. A well worded apology from INEC to Nigerians on this monumental disgrace is the irreducible minimum expected.

A new normal is possible!