A Legal Opinion On INEC’s Intervention in Adamawa REC’s Usurpative Return of Madam Aisha Binani As Governor-Elect

By Sylvester Udemezue

There was a Punch Newspapers’ breaking news earlier on 17 April 2023, reporting that “APC Binani declared winner of Adamawa Governorship Election”. According to the Punch, “The Independent National Electoral Commission, INEC, Sunday [17 April 2023] morning declared Senator Aishatu Dahiru Binani the winner of the Adamawa Governorship Election.The Resident Electoral Commissioner for the state, Barrister Hudu Yunusa just made the declaration following the supplementary election held Saturday”.

However, shortly thereafter came another breaking news, to the effect that “INEC Voids Declaration Of Binani As Winner, Summons REC To Abuja”. Daily Trust Newspapers reported therein that “The Independent National Electoral Commission (INEC) was reported to have voided the declaration of Senator Aisha Dahiru, aka Binani, as the winner of the Adamawa State Governorship Election”.

A statement by Festus Okoye, INEC’S National Commissioner, Information & Voter Education reads, according to Daily Trust:
“The attention of the Commission has been drawn to a purported declaration of a winner in the Adamawa Governorship Election by the Resident Electoral Commissioner (REC) even when the process has clearly not been concluded. The attention of the Commission has been drawn to a purported declaration of the winner in the Adamawa Governorship election by the Resident Electoral Commissioner (REC) even when the process has clearly not been concluded. Consequently, the collation of the results of the supplementary election is hereby suspended. The REC, Returning Officer and all involved are hereby invited to the Commission’s Headquarters in Abuja immediately”

As is typical of Nigeria, a controversy immediately ensued among lawyers and members of the public as to the propriety of the actions of the Adamawa REC and the later remedial action by the INEC, with traducers of INEC arguing that by virtue of Section 149 of the Electoral Act, 2022, the action of the REC was valid until set aside by a court of law. Section 149 provides:
“Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission in relation to any notice, form or document made or given or other things done by the official in pursuance of the provisions of the Constitution or of this Act, or any rules made thereunder remain valid, unless otherwise challenged and declared invalid by a competent court of law or tribunal”.

With due respect, it is hereby submitted that section 149 of the Electoral Act has no application or relevance to the legal anathema perpetrated in broad daylight by the Adamawa REC. Reasons:

1. First, only a Returning Officer could make a declaration and return. The Adamawa State Resident Electoral Commissioner, Yunusa Hudu Ari, is not the Returning Officer in the Adamawa Governorship Election and thus has no power to make a declaration and return in the election. The duly appointed Returning Officer for that election is Professor Mohammed Mele, Professor of English and Linguistics from the University of Maiduguri. Section 66 of the Electoral Act, 2022, which assigns the job of making a declaration and return exclusively to the Returning Officer for the affected election.

2. Where a statute prescribes that an act MUST be done in a particular way, that act can only be validly done in the prescribed manner. In SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC), the Supreme Court said (Per KARIBI-WHYTE ,J.S.C pp. 19-20, paras. F-C) that: ‘It is a well-settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory, such power can only be exercised within the limits prescribed by the statute – See Bowaje v. Adediwura (1976) 6 S.C.143.” See also
Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; (1997) SCNJ 600 at 649 – per Ogundare, JSC (of blessed memory)

 3.See also section 64(7) of the Act, which says that where after a result as announced by a Collation Officer at any level is disputed, the Collation Officer has the right to cancel the earlier collation already made and re-collate and announce a new result following the mandatory RESULT DISPUTE RESOLUTION PROCEDURE set out in section 64 (6) of the Act. In the Adamawa case, the duly appointed state Collation Officer (ie, the Returning Officer), Professor Mohammed Mele, had not even announced any results at all. So, how does section 149 become relevant? No way!

4. Even after the Returning Officer, duly appointed, has already officially made a declaration in line with sections 64(7) or (8) or section 66 of the Act, the Act still donates power to the INEC to REVIEW THE DECLARATION AND RETURN. Unlike the Electoral Act 2010, the Electoral Act 2022 affords the INEC a discretionary power to review the election/results where the results are disputed after the declaration and return of a winner have been made by the Returning Officer. The proviso to section 65(1)(c) of the Electoral Act gives INEC the power to review the results after a winner has been declared.

However, such a review (which may take the form of re-collation, cross-checking, verification of the results, or even outright cancellation or suspension and rescheduling or fresh elections) must be conducted within seven (7) days of the declaration and return. Section 65(1) of the Electoral Act 2022 provides that “(1) The decision of the returning officer shall be final on any question arising from or relating to—(a) unmarked ballot paper; (b) rejected ballot paper; and (c) declaration of scores of candidates and the return of a candidate: Provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return were not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election”.

Where the result/election is disputed but INEC fails to conduct a review within seven days, INEC would thereafter lose power to do anything about the declaration and return. All complaints thereafter are to be channelled to the Election Petition Tribunal. The Grounds For INEC-Review of Declaration and Return Already Made by A Returning Officer include (See the proviso to section 65(1)(c)):

(a) That the declaration and return were not made voluntarily;

(b) That the declaration and return were made contrary to the Electoral Act 2022;

(c) That the declaration and return were made contrary to the Regulations and Guidelines for
Conduct of Elections 2022; or

(d) That the declaration and return were made contrary to the Manual for the elections.

Thus, assuming without conceding that the Adamawa REC can usurp the powers of the duly appointed Returning Officer to make a declaration and return, the argument will still fall like a pack of cards in the face of the POWER given to the INEC by the proviso to section 65(1)(c) of the Electoral Act, to review a declared result. Note that if such a review is not conducted within seven days of the return, INEC would lose the power to do anything about the declaration and return.

5. If section 149 should be relevant anywhere or to any aspect of the Adamawa scenario, it is to the REVIEW action taken by the INEC pursuant to section 65 (1)(c) of the Act. Thus if anyone thinks there is any defect or error arising from the REVIEW action taken or REVIEW Notice given by INEC’S National Commissioner, Information & Voter Education (Festus Okoye) on behalf of and directly under the directive of INEC or its Chairman in pursuance of the provisions of the of this Act of the Regulations and Guidelines or Manual, remain valid, unless otherwise challenged and declared invalid by a competent court of law or tribunal. There is no law at all backing up or authorizing what the ADAMAWA REC; on the other hand, sections 64(6),(7)&(8), 66 and 65(1)(c) of the Electoral Act expressly authorizes INEC to review any result declared against the law.

Therefore, it is respectfully submitted that, pursuant to section 149, INEC’s official Release/Directive/Notice (as issued by the National Commissioner, Information & Voter Education) voiding the earlier usurpative and illegal declaration/return made by the Adamawa REC, stands unless and until “otherwise challenged and declared invalid by a competent court of law or tribunal”. This, it’s respectfully submitted, appears to be the only reasonable and way to make section 149 relevant to the scenario.

CONCLUSION:

What the Adamawa REC did gives him out as an incorrigible recidivist who unfortunately happened to have found his way, perhaps surreptitiously into INEC appointment. But God has helped us to expose his nefarious activities against the rule of law, due process, the electoral Act, the Nigerian nation and all Nigerians. In some countries, he would have been lying dead by now, waiting for interment and already receiving the usual rest-in-peace wishes. But in civilized nations, he ought to have been arrested, arraigned in court, and already undergoing trial while awaiting his conviction and jail sentence.

There are many such criminals inside INEC and other public institutions in Nigeria. They got there by anything but not on merit and competence. Please, I humbly advise, fish them out, from top to bottom, and have them out of the system forthwith, so that we may breathe some fresh air which is necessary for progress. Are we not fed up with the level of brigandage and insanity going on with leadership in a country that ought ordinarily to have joined the leaders of the world? Cruel leaders are replaced only to have new leaders turn cruel, leading to a debasement, desecration and corruption of our best institutions by the very worst among us.

Some have argued that power corrupts and absolute power corrupts absolutely, or that, as Pa Awolowo put it, power enslaves and absolute power enslaves absolutely. Dear Pa Awolowo, I don’t think that this applies in the Nigerian scenario; the opposite, and applicable declaration is found in William Gaddis’: Power doesn’t corrupt people, people corrupt power. So, by way of a solution, I have found through research that there are, indeed, many options for solving Nigeria’s problems. But I think that the one that would work faster in knocking the prevailing insanity out of the heads of some of our country’s leaders was put forward by Leo Tolstoy, “Since [it’s now obvious that] corrupt people unite among themselves to constitute a force, then honest people must do the same.”

If we allow such impunity to stand under the now rampant, criminal-mind-inspired go-to-court mantra, and pretend to rely on whole-inapplicable section 149 of the Act, then, in the next coming round of elections, a Polling Unit Officer could from the Polling Unit, or an INEC driver from the comfort of his car, make a declaration and return for an entire State, and considering that each and both are “INEC officials”, we would accept it based on section 149 and then tell those who don’t like to go to court, and Senator Smart Adeyemi would come out to make the following declaration:
“THOSE UPSET ABOUT 2023 ELECTION OUTCOME SHOULD WAIT FOR 2027 – SENATOR SMART ADEYEMI” Hear Smart Adeyemi on 06 April 2023:
“I speak my mind at any point in time. And let me tell you the truth, I hold the view that this election was free to a large extent and better than the previous election. Those who feel bitter can just wait for the next election” [Channels TV].
But, then, the American concept of what goes around comes around, was there soon enough, somehow, for Senator Smart Adeyemi. See:‘RESULTS WERE READY BEFORE ELECTION’ — SMART ADEYEMI FAULTS KOGI APC GUBER PRIMARY. Hear the same Smart Adeyemi, of Kogi West, on 16 April 2023 (faulting the conduct of the APC governorship primaries in Kogi State on 14 April 2023):

“We witnessed a new phenomenon of electoral malpractices and embedded corruption in the electoral process of our country. I have heard of riggings of elections but I have not heard of the new phenomenon which we must do all we can to stop in this country. Results were prepared, even before the commencement of voting. This is the worst malpractice; the worst form of rigging and unprecedented in the history of Nigeria. The primary election in Kogi was just allocation of votes” [thecable.ng].

Now, can I hear someone saying, “Dear Distinguished Senator Smart Adeyemi, sir, why complain? Just wait until 2027”? This is what happens when we condone brazen impunity and brigandage; they sooner than later pay us some visit. And he who has brought home ant-infested firewood should know that visits by lizards are just a matter of time; inescapable.

Accordingly, we had better come together to find a way to lawfully ditch these bitchly conducts of the bitches in public offices. Else, they would soon grow to consume all who promote and condone them. As e dey sweet us, e dey pain them is a two-way sword, waiting like a time bomb, with the assistance of Karma’s retributive justice, to strike.

Another way to end moral corruption and impunity is to work to create strong watchdog institutions and partnering or monitoring agencies. Hence, Rigoberta Menchú , a Nobel Prize laureate said: “Without strong watchdog institutions, impunity becomes the very foundation upon which systems of corruption are built. And if impunity is not demolished, all efforts to bring an end to corruption are in vain.”

On my part, I shall continue through Law discussions, to write and write, until we write this country out of its multifarious but self-imposed maladies. Like I said earlier, quoting Abraham Lincoln, in a commentary published under the heading, “Overcoming Security and other challenges: why Nigeria needs much more than “spiritual awareness” [01 October 2019; [courtroommail.com], “[Nigeria] will not be destroyed from the outside. If we falter and lose our freedom, it will be because we destroyed ourselves”.

See: “BREAKING: INEC SUSPENDS ADAMAWA REC FOR DECLARING APC’S BINANI WINNER”
4.30pm on 17 April 2023 [dailypost.ng]. INEC in a letter dated April 17, 2023 and signed by its Secretary, Rose Oriaran-Anthony has therefore directed its Administrative Secretary in the state to take charge of its affairs. Part of the letter reads; _“I hereby convey the Commission’s decision that you (Barr. Hudu Yunusa Ari), Resident Electoral Commissioner, Adamawa State should stay away from the Commission’s office in Adamawa State immediately until further notice. The Administrative Secretary has been directed to take full charge of INEC, Adamawa State with immediate effect”.

Meanwhile, there is this rumour that the REC Mr Yunusa Hudu Ari, when summoned by INEC, had claimed that he had to make the declaration because the Returning Officer had “disappeared”.

Issues Arising:
1.Mr Hudu, please which law says that where the Returning Officer “disappears” or is made to “disappear”, the State REC could step into his shoes?

2. By the way, had collation been concluded when you announced the declaration and return?

3. Well, there is no need for further elaboration; (permit my resort to pidgin English) if you think say you get sense pass everyone, the law get sense bigger pass yours because the proviso to section 65(1)(c) of the Electoral Act 2022 had anticipated such bitchly actions as yours. So, the declaration and return UNLAWFULLY made by a bitchly Adamawa REC has now been LAWFULLY REVIEWED by the INEC. Case closes.

COMMENDATIONS:

First, I commend INEC for its timely intervention in the Adamawa scenario. A Law Teacher wrote, Ochem, PhD, “Since the electoral body discovered the mistake timeously and acted with dispatch, it was a decision in the right direction to avoid anarchy. Remember that when an act is void it is in law a nullity. It is not only bad but incurably bad….Per Lord Denning”

Second, I thank God for the makers of the Electoral Act 2022, for their wisdom and foresight in having seen tomorrow that would eventually throw up Mr Yunusa Hudu Ari.

Third, I commend the innovativeness of the Electoral Act 2022. If not for the provisions of sections 64(6),(7)&(8) and 66 of the Electoral Act and the proviso to 65 (1)(c), which quickly came to citizen’s rescue, Adamawa State would have gone up in flames, by now.

Fourth, I thank the lawmakers in the National Assembly for the Electoral Act 2022; it’s a great piece of 21st-century-thinking and progress-minded legal document. Anyone who would take his time, would calm down and read the Electoral Act 2022 with an open mind, would agree that if that legislation could be honestly and religiously implemented by all stakeholders, the USA and the UK would be coming to Nigeria for Evening Lessons on how to conduct credible, transparent elections and generally on election matters. Aristotle wrote: _” It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws”. [Aristotle, Politics 3.16]

I respectfully disagree with the insinuation in some quarters, that “The Electoral Act 2022 is a scam, a fraud”. I submit that it’s our warped implementation of the Act’s clear provisions that is fraught with fraudulent intentions. So, let’s stop blaming the law for our own deficiencies and mischievousness. If we falter and fall, it’s entirely our own fault, not the fault of our laws. Even an imperfect law, if perfectly implemented, can yield perfect results.

My humble opinion though respectfully submitted,
Sylvester Udemezue (Udems).

Source:barristerng