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INEC’s Faux Pas on Rochas Okorocha’s Election

By Okoro Gabriel, Esq

The Independent National Electoral Commission’s (INEC’s) refusal to issue a Certificate of Return to the declared winner of the Imo West Senatorial District election, Governor Rochas Okorocha, has no place in our law, political history or judicial precedent. It is an action capable of sparking off a major constitutional crisis, while causing the country an international embarrassment and encouraging resort to self help, to put it mildly.

It is recalled that the embattled governor contested the Senatorial seat under the banner of the All progressives Congress (APC). He was declared winner by the Returning Officer for the Senatorial District, Professor Innocent Ibeawuchi. While announcing the result, the Returning Officer was reported to have said that he was doing so under duress. Yet, the result of the election was announced and the embattled Governor declared the winner.

On the basis of the above allegation, INEC was later to say that the embattled governor would not be issued a Certificate of Return. In a published list on its website, last week, ahead of public presentation of Certificates of Return to the newly elected Senators, the name for the Imo West Senatorial District was blank except for an INEC remark “Declaration made under duress” thereby generating wide reactions. The Commission’s image maker, Festus Okoye, has since come out to justify this illegality. In a recent TV show, he stated that “The Commission has decided that we will not rewards bad behavior in the electoral process and we recorded bad behavior in result collations in Imo West Senatorial District”.

Quite frankly, and without holding brief for the embattled governor, the Independent National Electoral Commission’s (INEC’S) seems to have allowed itself get too much entangled in the web of Imo State political crisis. One expects INEC to know that once it has declared a candidate the winner in an election, it naturally becomes functus officio, and has no power whatsoever to take any other action regarding the election. Similarly, under our extant laws-Section 75 of the Electoral Act, 2010, as amended precisely-the Commission is under a coercive duty to issue a sealed Certificate of Return to every candidate who has won an election under the Act. In fact, the said Section 75 of the Act uses the words “SHALL” and “WITHIN 7 DAYS” to strip the Commission discretion to act otherwise.

It is unequivocally submitted that the only constitutional body that is vested with the power to withhold or declare a Certificate of Return invalid is the judiciary. The proviso of the afore-stated section 75 clearly declares so. Therefore, the Commission cannot usurp the clear power donated to the court under the Act. To do otherwise is desecrate the principle of separation of power enshrined under the country’s Constitution.

So, where did INEC derive the power to refuse to issue the embattled governor the Certificate of Return after declaring him winner of the election? For neither the Act, nor the Commission’s own “REGULATIONS AND GUIDELINES FOR THE CONDUCT OF 2019 ELECTIONS” so empowers it. Assuming, without conceding, that the latter empowers it to so act, the Commission can still not go outside the express provisions of its establishing Act or the Constitution. Perhaps, the “mistake” the Commission made was to declare the embattled governor the winner of the Senatorial election in the face of the purported coercion, because having so declared him, INEC has no legal backings whosever to withhold a Certificate of Return from the controversial governor or not to recognize him as the winner thereto. The only viable legal option available to the Commission now is to await the constitution and inauguration of an Electoral Tribunal in the state where it can fully articulates its misgivings concerning the election, though this may be unprecedented considering the fact that INEC usually defends rather than opposes an election it conducted.

For the sake of preservation of the sanctity of our electoral laws and not necessarily for the personal benefit of Rochas Okorocha, INEC must be prevailed upon to forthwith issue a Certificate of Return, as prescribed by the Electoral Act, to the embattled governor having declared him winner of the election. This is a duty the Commission owes to the deepening of our constitutional democracy. Thankfully, the embattled governor has now gone to court to challenge this infraction. One is, therfore, optimistic that the court will dispense justice in the case accordingly.

Okoro Gabriel, Esq. writes from Lagos

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