IMO JUDGEMENT: WHAT HAPPENS TO THE PEOPLE'S VOTES?
THE interpretation given to section 26 of the electoral Act 2010 (As amended) by the Imo guber tribunal has given judicial endorsement of staggerred elections by INEC. It is therefore, a recipe for electioneering disaster.
In interpreting section 26 of the 2010 electoral Act, the Imo guber tribunal extended INEC's authority to cancel elections beyond the pre-election cancellations dealt with in section 26 of the electoral Act 2010; to include cancellations after voting has been concluded. In so doing, the judgment effectively blurred the distinction between election cancellation and the cancellation of election results.
A judgment at law has two important components. These components of a judgment are the findings of fact and the conclusions of law. But in a trial, the findings of fact is predicated on legal equation used for the conclussions of law.
This being the case, an erroneous conclussion of law invariably leads to incorrect findings of fact. This is because a trial is usually a mixture of facts and law, and as such the correct interpretation of the points of law is therefore necessary in order to reach the correct findings of fact.
The Imo guber tribunal concluded that there were no elections in Mbaitoli, Ohaji/Egbema and Oguta local governments on April 26, 2010, inspite of the certified true copies of the results admitted into evidence at the trial. This factual finding was reached because of the erroneous interpretation of the electoral laws which formed the legal equation used in the assessment of evidence before the tribunal.
The Tribunal reached the conclusion that no elections took place in these three local governments, and she interpreted the electoral laws by holding;
'Section 27 of the Act requires that results of the election be announced at each level and a winner declared. The pleading in paragraph 14(i) of the petition is to the effect that no declaration and no return were made the third respondent (INEC) concerning the election of 26th of April 2010.
Rather the third respondent declared the said election inconclusive. The implication is that the process was not yet completed. It is to be borne in mind that only the third respondent has the constitutional power of declaring the results of an election concluded under the Act, and as long as an election process has not been concluded, no winner can be declared.
If we accept the interpretation urged on us by the petitioner's counsel, it would amount to absurdity as it wounld amount to basing the results on an incomplete election. Bearing in mind that an election is a process commencing from accreditation, voting, collation of results, it cannot be said that election to office of Governor of Imo state held on 26th of April 2010 was conclusive in view of the non-declaration of results.'
By this holding, the tribunal failed to make the disticntion between announcing results at the polling centres, and declaration of a winner. INEC's polling officers are mandated by law under section 27 of the electoral law Act 2010 (As amended) to announce the results at each polling centre upon the completion of voting of the accredited voters.
The announcement of these results marks the end of the election at the polling centres. Based on the above holding by the the Imo guber tribunal, once INEC decides to withhold declaration of a winner in an election, no matter the reasons for the withholding of a declaration, the election did not hold. This judicial interpretation of INEC's powers, endorses cancellation of election results by INEC.
To properly understand the import of the above holdings, as it relates to our electioneering process, an attempt will here be made to take apart the holding in order to reveal its short-comings.
Firstly, the holding starts by citing section 27 of the electoral Act 2010 (As amended) and its requirement that INEC must announce the results at every level of the process. But the holding failed to interprete the legal reasons or purpose for this requirement.
By glossing over the provision of section 27 of the electoral Act without the purpose for that particular provision, the tribunal committed the first sin of statutory interpretation. It is commonly known that to interprete a statute, one must unveil the intent behind the passage of the statute either through its statutory history or through other provisions of the statute in the same general area.
This process reveals the underlying reasons behind the passage by unveiling the intendment of provision in order to avoid the accusation of engaging in judicial law making which offends separation of powers upon which the constitution of Nigeria is anchored.
With regards to section 27 of the electoral Act 2010, which was cited but never interpreted by the tribunal; the content first appeared in Electoral Act 2010. There were no provision in electoral Act 2006 and 2002 that results of elections should first be announced at each polling centers.
It is therefore very significant that electoral Act 2010 (As amended) incorporated this particular provision, and as such, any judicial interpretation of cancellation of election must endeavor to make sure that the purpose and reason for the inclusion of this particular provision in the act is necssarily given the expected treatment by the drafters.
The National Assembly will not have drafted a new provision of the electoral Act without a purpose and a reason. Any judicial interpretation of cancellation of election that does not take into account the inclussion of section 27 of the electoral Act 2010 (as amended) fails in its interpretative duties under the law.
DR. K.C. OKPALAEKE is a United States trained constitutional Expert and former Imo State Commissioner for Special Duties, and also for Information and Strategy under Ohakim's Government.