ANALYSIS: INEC and the legality of withholding certificate of return

A senior lawyer, Jiti Ogunye, has stated that electoral commission, INEC, has the power to withhold a certificate of return for an election under some circumstances.

Mr Ogunye stated this amid the controversy surrounding the decision of INEC to withhold the certificate of return from Governor Rochas Okorocha.

PREMIUM TIMES reported how the returning officer in Imo West stated that he was forced ‘under duress’ to declare Mr Okorocha winner of the senatorial election in the area.

INEC, which issued certificates of return to senators-elect on Thursday declined to issue Mr Okorocha with the certificate for the reason stated by the presiding officer.

Read Mr Ogunye’s legal opinion on the matter below.

CAN INEC LEGALLY WITHHOLD A CERTIFICATE OF RETURN ?

We are compelled in the circumstances to weigh in here.

INEC for good cause, in our considered view, may withhold or refuse to issue a certificate of return to a candidate in an election. Such good cause, for example, may be a post declaration awareness or a realisation that the declaration is not voluntary or made under duress, without the free exercise of the will of the returning officer, especially if the tabulated or collated votes do not support such a declaration. An illicit declaration, procured vi et armies, ought not to give birth to a legitimate return. Certifying a fraud that INEC realises and can establish as a fraud is not only irresponsible but unlawful. That will mean that INEC knowingly and willfully is certifying a fraudulent declaration or return.

Where is the law?

Section 68 (a,b & c) of the Electoral Act ( with its amendments) provides that “ the decision of the Returning Officer 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 shall be final subject to review by a tribunal or court in an election petition proceedings under this Act”

Section 75(2) of the Electoral Act, 2010 (with its amendments) states that “where the Commission refuses and, or neglects to issue a certificate of return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing in a candidate declared as the winner by that court.

A combined reading and construction of the above two cited provisions of the Electoral Act make it luminously clear that any decision of a Returning Officer on the declaration of scores of a candidate and the return of a candidate shall be final, and same shall be subject to review by a tribunal or court in an election petition proceedings. It is our humble submission that if a Returning Officer, upon making a declaration, takes a “decision” to report an alleged coercion and compulsion to make a declaration to INEC, that report, which is an inextricable part of result declaration, can validly lead to a decision not to issue a certificate of return to an alleged winner of the election. It is submitted that the decision not to issue a certificate of return qualifies as one of the “decision of the Returning Officer on any question arising from or relating to …..declaration of scores or return of a candidate…” within the meaning and intendment of Section 68 of the Electoral Act.

Section 75(2) is even more instructive. The subsection recognises that INEC may “refuse” or “neglect” to issue a certificate of return and that in that case, a certified true copy of an order of court shall be sufficient for the purpose of swearing in a candidate that may be declared as the winner by that court.

What this subsection implies is that upon refusal or neglect by INEC to issue a certificate of return, a court action (election petition) may be filed by a person so declared but denied a certificate of return, to seek declaratory reliefs that he is the winner who should be issued the certificate of return.

Until such an order is obtained, INEC, as the election management body, and pursuant to its statutory and administrative powers may, for good cause and compelling reasons, withhold a certificate of return.