IMO JUDGMENT: WHAT HAPPENS TO THE PEOPLE'S VOTES? ,(3)

By K.C. OKPALEKE
AS an exception, it is not favoured but simply accomodated. However, before it can be accommodated, INEC must show by cogent and verifiable reasons why staggered elections must be accomodated.

For INEC to meet its burden for this exception, she must show likelihood that a serious breach of the peace will occur if the election is proceeded with. In other words, this is a condition precedent to the cancellation and postponement. This means that the proof required to meet section 26 of the electoral Act is pre-election evidence and not a post election matter.

The situatuion leading to the cancellation of the holding of an election must be the basis of the cancellation of an election under the Act. Once the election has been held and results announced, the Act does not make any provision under the law for its cancellation by INEC. The entire section 26 of the Act deals with a pre-election cancellation of its date.

No mention was made by any section of the Act of post voting cancellation of election results. Subsection (2) of section 26 of the electoral Act 2010, cited approvingly by the tribunal and argued by APGA counsel as controlling, simply stated that in the event of cancellation of a date after nomination papers had been distributed. It never dealt with the cancellation of results of voting in an election.

The intendment of the National Assembly that section 26 of the electoral Act 2010 be treated just as an exception to the general rule established by section 47 is further buttressed by section 27. Section 27 draws a line when voting in an election is concluded.

Section 27(1) stated that; 'The results of all the elections shall be announced' starting at the polling unit. This means that once the announcement of the results of a polling unit is made, the election as regards that polling unit is completed. The remaining process of the election is collation of results as announced at the polling centres.

Based on this provision, the election proper is completed once the results of the various polling units in the electoral constituency are announced. The collation process is part of the election process only for the purpose of the tabulation of the various results from the polling units across the electoral constituency.

Election is said to be a measuring stick for how the citizens of an electoral constituency wish to be governed. And the only calibration in this measuring yardstick is through the votes cast by the citizens. This is why, for all intends and purposes, once the votes are ccounted and the results announced at the polling centres, the election is therefore concluded.

The collation process does not involve voting but rather the addition or tabulation of the several results from all the polling centres. Therefore, the collation process is simply an administrative process designed to ensure that the return declared represents the voting results announced at the polling centres.

This is why section 27(2) of the electoral Act 2010 simply states, 'The returning officer shall announce the result and declare the winner of the election.'

There are no where in the provisions that the law grants a returning officer the power or authority to cancel the results already announced at the polling centres, ward collation centres or local government or Area collation centres. Furthermore, the language of section 27(2) is again a mandatory language and the directive from this particular provision left no room for any discretionary judgment on the part of a returning officer.

By not analyzing the provision of section 47, 27, and 26 side by side, the tribunal reached its judgment based on an erroneous interpretation of laws of our elections as it relates to cancellation of election by INEC, and in so doing made conclusion of law that endorses staggered elections by INEC.

The second glaring error of law in the judgment is the statement in the holding which reads 'It is to be borne in mind that only third respondent (INEC) has the constitutional power of declaring the results of an election conducted under the Act, and as long as an election process has not been concluded, no winner can be declared.'

By stating that 'Only the 3rd respondent (INEC) has the constitutional power to declare the results of an election concluded under the Act' this statement of law by the tribunal contracdicts the implication of section 6 of the constituton of the Federal Republic of Nigeria 1999. This particular statement of law forms the basis for no elections in the three local governments at issue.

It is inconsistent with section 6 of the constitution of the Federal Republic of Nigeria 1999. Section 6 of the constitution states the the judicial powers of Federal Republic of Nigeria shall be vested in the courts. It is upon this constitutional pronouncement and the provision of section 285 of the constitution that the tribunal draws its powers.

Section 285 of the constitution states 'There shall be established for the Federation a governorship petition tribunal which shall to the exclusion of any other court or tribunal have original jurisdiction to hear and determine petitions as to whether (a) any person has been validly elected to the office of the Governor or Deputy Governor.

The purpose of filing an election petition is for the tribunal to hear and determine whether any person had been validly elected. This is why the above quoted statement of law by the tribunal is a gross mistatement of the law. The import of this statement is really that a tribunal cannot declare a return in an election because the declaration of a return is constitutionally limited only to INEC.

If this statement of law by the tribunal is an accurate conclusion of law, then there is absoulutely no need for an election petition tribunal under our constitution, and as such, the petition of PDP in this particular situation should have been dismissed for lack of jurisdiction by the tribunal. This is because this statement of law that formed the basis of the holding really questions the jurisdiction of the election petition in its entirety.

This is no doubt or question that the constitution grants INEC the power to conduct election and declare a return but this constitutional power to INEC is necessarily made subject to a petition questioning INEC's role in the conduct and declaration of return of an election, under section 285 of the constitution.

This is why section 285 of the constitution gives the election tribunal the exclusive preserve of determining whether any person has been validly elected once INEC's declaration is challenged by a petition.

This unconstitutional statement of law by the tribunal that only INEC alone is constitutionally empowered to declare a return in an election was made in response to PDP's petition praying the tribunal to declare her the validly elected party in the Imo Governorship election by declaring the results of Mbaitoli, Ohaji/Egbema and Oguta local governments that INEC refused to to declare which became the basis for the inconclusive declaration of Imo guber contest on April 26, 2011.

Based on the above request by PDP's petition, PDP in no way questioned INEC's constitutional authority to conduct election and declare a return, rather the petition by PDP questioned INEC's refusal to declare the results of the three local governments and the declaration of the contest inconclusive on April 26, 2011.

PDP held the view, and rightly so, that once voting was completed and results recorded both at the polling centers and all levels of the collation up to the local government level, INEC's failure or refusal to declare the results by the state returning officer becomes a violation of the law of our election and therefore should be corrected by the tribunal by declaring the results and the appropriate candidate or party returned by the voters.

Mr. Okpaleke, a constitutional expert, is former Information and Strategy commissioner under Ohakim's govt.