Following the dismal performance of Independent National Electoral Commission (INEC) in the ongoing governorship election in Anambra State, a legal issue that has been thrown up by the fiasco is the extent of the powers of the Commission to cancel the entire election.
It is not in doubt that the election has been marred by serious acts of noncompliance with the provisions of the Electoral Act 2010 (as amended). For instance, there were confirmed reports from the Election Observers that thousands of voters could not find their names on the voters register resulting in the disenfranchisement of about 70 per cent of the electorate.
There were reports that while under aged infants were registered and may have voted in areas such as Anaocha, Njikoka, Awka North , Nnewi North and South, Oyi and Ayamelum LGAs, in other areas like Idemili North, Idemili South, Dunukofia, Anambra East and Anambra West local government areas (LGAs), many registered voters could not find their names on the register and went home disappointed. Personalities whose names were omitted include the PDP candidate, Mr. Tony Nwoye along with his parents, his godfather and business mogul Prince Arthur Eze and many others who could not vote because of INEC bungling of the voter registration.
There were reports of delays in the arrival of electoral materials to various polling units for various reasons.
As a result, INEC cancelled the results in about 210 polling units spread across 16 local government areas and rescheduled what it termed a supplementary election for a date to be announced at the time of writing this script.
It is worth recalling that the same scenario occurred in the 2010 Governorship election where out of 1.8Million registered voters only 301,232 voters or 16.32 per cent of the electorate were able to exercise their franchise in the said election. The winner of the election, Mr. Peter Obi just got 97,843 of the votes.
In the reports by many observers it was found that pictures of Mike Tyson, Gani Fawehinmi, Malcom X, Nelson Mandela, Mariam Makeba and others dotted the register. Pictures of individuals were simply scanned into the register thereby making it totally fraudulent and unreliable. That was under Maurice Iwu-led INEC.
In the 2013 election now declared inconclusive by INEC, three of the candidates namely Senator Chris Ngige of APC, Tony Nwoye of PDP and Ifeanyi Ubah of Labour Party have in several press conferences jointly called for the cancellation of the election while INEC through its spokesperson Kayode Idowu contends once a returning officer announced the result of any election, there is no way the electoral commission can cancel its outcome.
It stressed that any objection to the election results by any aggrieved person should be channeled to the courts or the election tribunal.
The commission advised any political party not satisfied with results declared so far in the last Saturday governorship election in Anambra State to either go to court or the election petition tribunal to seek redress, in line with the 2010 Electoral Act, as-amended.
The major beneficiary of the electoral heist, the All Progressive Grand Alliance, (APGA) supports INEC’s point of view.
Just last Friday, the INEC Chairman addressed a press conference where he admitted that INEC had disappointed many Nigerians in its handling of the Anambra election but in a typical Maurice Iwu style, he boldly rejected the calls for an outright cancellation of the sham election.
I think INEC Chairman is blowing hot and cold at the same time on this point. INEC had on Monday the 18th announced cancellation of results in some 210 polling units across 16 local government areas of Anambra state and fixed a ‘supplementary’ election for November 30.
The question that then arises; on what authority did INEC cancel the results for the 210 polling units now fixed for the ‘supplementary’ election? Was it pursuant to an order of a court or tribunal as now argued by the Commission or was it by the powers vested in it by law?
The simple truth and answer is that it was INEC that cancelled the results from those polling units and wards in the exercise of its powers derived from the Constitution of Federal Republic of Nigeria; 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.
The Electoral Act 2010 (as amended) in several sections gives INEC the power not only to cancel elections but to declare it null and void.
For instance in Section 54(3) of the Act, it is provided therein that “Where the votes cast at an election in any polling unit exceed the number of registered voters in that polling unit, the result of the election for that polling unit shall be declared null and void by the Commission and another election may be conducted at a date to be fixed by the Commission where the result at that polling unit may affect the overall result in the Constituency.”
If INEC can declare a result from a polling unit where over voting occurs , null and void, then it follows logically that the Commission can declare the entire process in the constituency null and void where it discovers that that there had been widespread disenfranchisement of voters and/ or other electoral malpractices.
In the 2011 General Election, INEC under the leadership of Prof Jega, on April 2, cancelled the election that was ongoing in about 20 states due to late or non delivery of sensitive election materials like result sheets and ballot papers.
The election was subsequently postponed to the 9th of April 2011. Nobody, to the best of my recollection questioned INEC’s power to cancel the process and start on a clean slate.
INEC power to cancel or declare null and void an ongoing election like the one in Anambra State is not in doubt and my position is duly supported by the provision in subsection (4) of Section 53 of the Electoral Act which states that: (4) Notwithstanding the provisions of subsections (2) and (3) of this section the Commission may, if satisfied that the result of the election will not substantially be affected by voting in the area where the election is cancelled, direct that a return of the election be made.
The phrase ‘where the election is cancelled’ can only mean a cancellation done by the Commission for one reason or the other. The meaning may also accommodate a cancellation done by a court or tribunal.
I am not unaware of the provisions in Section 68(1) of the Electoral Act which states 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.”
This section has been construed in a plethora of cases such as —— Enemuo v. Duru (2004) 9 NWLR (Pt 887) 75 and Abana v. Obi (2004) 10 NWLR (Pt.88l) 319 at 365, INEC Vs Abubakar (2009) 2 NWLR (Pt 1124), 29. In the latter case involving the Senate President, David Mark the Returning Officer cancelled the results of two local government areas before making his return.
The lower tribunal approved of the decision and ordered a rerun election. On appeal the Court of Appeal set aside the judgment of the tribunal and held that “It is very clear from the ordinary grammatical meaning of this provision that the power of returning officer is limited to-
(i) declaration of scores of candidates; and
(ii) return of a candidate.
With regard to these two issues, the decision of the returning officer is final subject to review only before an election tribunal or this court.
No power is granted to the returning officer to canceled results of an election and if he purported to have canceled any results, it was ultra vires, his power. And it is a nullity.” Per Belgore JCA
INEC is relying on the above provision to reject the call by well meaning Nigerians including Election Observers for total cancellation of the process.
INEC is wrong to rely on this provision.
The Anambra governorship election is still ongoing unlike in David Mark’s case where the process had ended; Anambra election still at the collation stage awaiting the holding of a ‘supplementary’ election now fixed for Saturday, November 30, 2013.
The process like the situation in 2011, can be aborted at this stage because of the false start by INEC.
It is worth noting that the LGA results were announced after about 16 hours interval of the results being kept at INEC State Headquarters in “tamper proof bags” by the LGA Collation Officers and their public announcement.
The absence of contemporaneity between the submission of the results and its public announcement has robbed the process of any credibility, transparency and integrity.
The State Collation Officer, Prof James Epoke, the Vice Chancellor of the University of Calabar announced that the election had become ‘inconclusive’ because the number of voters in the cancelled areas can make a difference in the final outcome of the election.
Epoke going by the provisions of the Electoral Act is not the Returning Officer for the Governorship election and cannot therefore declare any of the candidates as winner.
Section 27(1) of the Electoral Act makes it clear that the Returning Officer shall be the person to announce the result and declare the winner of the election at the State Collation Centre.
The Act did not combine the duties of collation and returning in one person. INEC cannot use its Election Manual or Guidelines to override or vary the extant provisions of the Act as it had done in its latest manual. Prof Epoke as the State Collation Officer and the Commission CAN cancel the returns from the local government areas.
Therefore, it is submitted in conclusion that at this stage having regard to the serious infractions of the electoral law as observed by the election monitors, the power of cancellation already exercised in respect of some electoral wards and considering the public admission by INEC Chairman, Prof Jega that indeed some of his officials had sabotaged the Anambra process , INEC has the power and indeed the duty to cancel the remainder of the process.
No credible result can emanate from an election as discredited as Anambra 2013 Governorship election. Ex nihilo nihil fit-out of nothing, nothing comes out.
