The Propriety of Inconclusive Election Declaration by the Independent National Electoral Commission: Breeding an Unquestionable Electoral Umpire

By Dinne, Israel, Abuja

Chapters 5, 6 and 7 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) established the Legislature, the Executive and the Judiciary arms of Government respectively and did set out their various powers in Sections 4, 5 and 6.

The whole requirements, expectations, duties, powers and means of upholding and implementing the Constitution revolves around these three arms be it at the Federal or State level and this is geared towards making sure that Nigeria is and remains one indivisible and indissoluble sovereign State.

Basically, the powers and duties of the above arms of government remains the making of laws by the Legislature, the enforcement of these laws by the Executive and the interpretation of the laws by the Judiciary.

The Executive which is perceived as the first/highest among equals (primus inter peras) indeed has a lot to do in the implementation of these laws and the constitution is not oblivion of this fact (we must remind ourselves that Nigeria is one of the Countries that has numerous laws).

It is in light of the above that it allowed for the establishment of certain Federal Executive bodies known as Federal Commissions and Councils in section 153 (1) to help in the implementation of the laws and went ahead to list their powers and means of composition in Part 1 of the Third Schedule to the constitution.

Among the 14 mentioned bodies is the Independent National Electoral Commission (INEC) which is stated to be composed of a Chairman, 12 National Electoral Commissioners, a Resident Electoral Commissioner for each of the States and the FCT being persons of a specific age bracket and appointed by the President.

The Constitution did set out a number of things which the Commission has power to do and these among others include; a) to organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State,

and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; b) to monitor political campaigns and provide rules and regulations which shall govern the political parties; c) to carry out such other functions as may be conferred upon it by an Act of the National Assembly.

It is in compliance with (c) above that on the 20th day of August 2010, the National Assembly enacted an Act repealing the Electoral Act 2006 and the Independent National Electoral Commission Act 2004 and then set up the Electoral Act 2010 to aid the Electoral Commission regulate the conduct of Federal, State and Area Council elections and related matters.

Since the inception of the above Act, the Electoral Umpire have conducted its activities in adherence to the provisions therein and sequel to that, several issues and challenges have been experienced as the shortfalls of the 2010 Act in putting up with the 21st century electoral practices among which is the issues surrounding the Card Reader, Electronic transmission of results and others.

The Commission have tried to proffer solution to these challenges by making and giving itself Rules, Regulations and Guidelines for a smooth and better implementation of the provisions of the Electoral Act and its other responsibilities though these have proofed not to be enough.

The last general election conducted by the Commission exposed more issues and areas where the Electoral umpire needs to do more and where it has to be very mindful of its decisions so as not to be seen as trying to constitute itself as the alpha and omega in election matters,

carrying on its business as if its actions and their consequences should not be subjected to scrutiny and answers officially demanded – (this is because the Commission is surely a branch that draws its life from the stem and must work in line with the laid down legal system).

Among the noted challenges are disenfranchisements of some eligible voters, the postponements and the several ‘’inconclusive’’ election declarations by the Commission.

These are in total contrast with the objective of setting up the Commission and its responsibilities.

It is the view of the writer here that it was not and is not envisaged by the Constitution or the Electoral Act (even in its contestable state) that any election be construed or termed as being inconclusive in whatsoever manner by INEC.

A study of the Electoral Act shows that the only section that comes close to empowering/allowing the Commission to reschedule an election is section 26.

For clarity purpose, part of the said section shall be reproduced here. Section 26 (1) ‘’Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the election as a result of natural disasters or other emergencies,

the Commission may POSTPONE the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election provided that such reason for the postponement is cogent and verifiable’’.

It has always been the rule and norm in legal parlance that a draftsman intends the meaning of the word he uses in a legislation, and among many definitions available, the word POSTPONE means ‘’to delay an event and plan or decide that it should happen at a time later than the first scheduled date – a deferral’’.

It therefore means that an ongoing event cannot be postponed in its actual sense and irrespective of the provisions of subsections (3) and (4) of the section, the Commission cannot come under here to declare an ongoing election as inconclusive.

It is believed that even in line with section 26(5) of the Act, that where a date have been fixed for an election and the election have commenced, (having in mind that it is a mandatory duty of the Commission to ensure that all have been put in place ranging from voters/parties education and sensitization, availability and security of the materials,

the security of its personnel, logistics among other requirement for a successful election are on ground) the Commission has the duty to carry it out till completion and declare a result which any contest on the result may be challenged by any of the contestants at a Court or Tribunal of competent jurisdiction.

It is only at this point that the Court or Tribunal as the case may be and being the proper entity empowered to interpret the actions and procedure of an election and make pronouncements can therefore cancel the said election, order for a rerun, declare it inconclusive or make any other pronouncement as it may deem fit in the circumstance.

In reaching any of the decisions above, the Court/Tribunal is expected to ensure that it hears from all the parties or at least the key players involved and interested in the election among which is INEC that is almost always given ALL it demands for a successful, free, fair and a hitch free election on their roles in the said election/result being contested.

Ordinarily it should not be heard that the electoral umpire with all its powers and expertise will return to state that it failed in carrying out its major national assignment and glory in it by unilaterally pronouncing a ‘’judgement’’ over an election and rescheduling same.

Further, the declaration is equal to having the Commission exercise a quasi – judicial power which no body corporate is allowed to exercise unless the law establishing it expressly grants it that, if the Commission that holds a key place in the election arena,

who is expected to be an unbiased umpire is allowed to wield such powers without restrictions and consequences we may get to a point where it will suo moto for whatever reason (be it in the bid to ensure that a particular candidate wins or out of sympathy for any of the contestants) make such declarations.

The well known doctrine of nemo judex incausa sua which translates into ‘’no one should be a judge in his own case’’ is another reason why it is believed that the law could not have intended to allow such decision to be at the discretion of the Commission.

The responsibility of organising and concluding elections remains that of INEC and where it fails, it is expected that it must take responsibility of it, each act or omission of the Commission which is a very crucial Commission goes a long way to affect almost all aspect of the Society,

the Courts are not functioning at its best presently as they are engaged with several cases coming from the election, the Legislature is almost not ready to be inaugurated as many persons who ought to be members of the law making chambers are undergoing another contest in the Tribunals.

The ills of the last general election which are mostly informed by the decisions of INEC are still here with us and shall remain for some time.

The early determination to do the ‘’right thing’’ by the political parties, election candidates, electorates, the electoral umpire (INEC) and those it is their duty to ensure workable society, will greatly help us to desist from making a ‘’mockery’’ of our system among the league of Nations – If the new Electoral Act is assented to and passed into law, it is expected that some of the anomalies experienced so far will be addressed.

Dinne, Israel Chukwuemeka Esq.
08068613825 Abuja