ELECTION PETITIONS ARE HERE PT. 3

The second ground upon which the Petitioners (Peter Gregory Obi & the Labour Party) are bringing their Petition is “The election of the 2^nd Respondent (Senator Bola Ahmed Tinubu) was invalid by reason of corrupt practices or nom-compliance with the provisions of the Electoral Act 2022”

It is no news that INEC had promised, in fact, it had sworn that it would not only use BVAS but also upload the result of each polling unit to its server. This was not just a promise, it was statutory.

As far as I am concerned, the procedure was enshrined in the Electoral Act 2022 and the INEC Guidelines, so INEC was bound to act in accordance.

Section 60 (4) (5) of the Electoral Act 2022 provides:

“ (4) The Presiding Officer shall count and announce the result at the Polling Unit

 (5)    the Presiding Officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission (INEC)”

The question is what is the manner prescribed by the Commission?  The prescribed manner was not expressly stated in the Electoral Act, but in the Regulations and Guidelines for the Conduct of Elections, 2022. This Regulations and Guidelines was drafted and created by the Commission itself. Now Clause 38 of the Guidelines provides as follows:

“Upon completion of all the Polling Units voting and results, procedures, the Presiding Officer shall:

i)Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as         prescribed by the Commission.

ii)Use BVAS to upload a scanned of the EC8A to INEC Result Viewing Portal (IReV), as prescribed by the Commission.

From the above it is established that when you read section 60 (4) & (5) together with Clause 38 of the Guideline, the Presiding Officer (P.O) SHALL transfer the results including the total number of accredited voters and results of the ballot electronically to the collation system. The PO is also to use BVAS to upload a scanned copy of the EC8A to the INEC Portal.

The question here is, is the electronic transfer of results and uploading to INEC portal COMPULSORY? My answer to the above would be yes, a big yes. This is because the word “Shall” was used in both the Electoral Act and the INEC Guideline. “Shall” is a compulsory word. It means the said act must be done and the PO does not have discretion.

There are a few of my colleagues who believe that the INEC Guidelines is a subsidiary legislation (that is a law not made by the legislators i.e the National Assembly or the State House of Assembly. The National Assembly delegates authority to agencies like INEC to make its own rules, and it is done for proper management and running of things. The truth is, subsidiary legislations are secondary (lower in ranking) to the laws enacted by the National Assembly). According to their argument, the INEC Guideline being a subsidiary legislation need not be complied with by the Commission. Therefore, the Commission can decide not to comply with it. I do not share this view. First and foremost, the Electoral Act which is a law by the National Assembly and is binding on all electoral officers provides in section 148 that:

“The Commission MAY, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and its administration”

Now, the Electoral Act said the Commission “MAY” issue a guideline. The word “MAY” is not compulsory, so there was no obligation on INEC to release the guideline. However, it did. On doing so, what is the effect? It becomes binding on the Commission and all involved in the electoral process. No where in the Electoral Act did it say that INEC “MAY” act in accordance with the provisions of the Guideline. It only stated that it “MAY” issue it, upon issuing it, INEC becomes obligated to comply with it. Secondly, there are cases where the court (although it was the Court of Appeal whose decision can be upturned by the Supreme Court) has held that the INEC Guidelines form part of the Electoral Act. This means that the Guidelines and the Act are one, and both must be complied with.

Back to some of my colleagues’ submission that INEC need not comply with the Guidelines. The law is that, subsidiary legislations will not be complied with only if they are in conflict with the primary legislation. The Guideline did not conflict the Electoral Act. One did not say “upload result” and the other say “do not upload”, in fact, they complimented each other.

There is also the argument that it was not clearly stated that the uploading must be done immediately. Well, the word “Immediately” was not used, but really and truthfully speaking, when do you think the drafters of the INEC Guideline intended for it to be done? Six months after the elections?

To this writer, the above provisions are not the problem. The problem is, now that it is obvious to all that there was non-compliance on the part of INEC, what happens?

First and foremost, let me state that once the election process has begun, no returning officer has the power to halt the process because of non-compliance with the above sections.  Even the Courts are prohibited from stopping it. Once it commences, it only stops after the declaration of results. This explains why the INEC chairman did not stop the declaration of the results. Section 65(1)(c) only gives the returning officer the powers to review the declaration and return within seven days, when the said declaration was made involuntarily or not in accordance with the provisions of the laws, regulations and guidelines. Meaning that the officer has 7 days after the declaration of the results to review the results if there was no compliance. NOTE: it is seven days after the election.

This obviously did not happen. So, what next? Section 149 of the Electoral Act simply says that even if the returning officer or any INEC official fails to do his/her duty his actions remain, the election remains valid, unless declared invalid by a competent court of law. This means that nothing any of the officers of INEC did can invalidate the election , unless the Court says so.

At this point, I do not know what to say. It is like making a law that is not binding.

Well, the Act did say that the Court is there to declare such actions invalid. So, the big question is, will the Courts deem it fit to declare the elections invalid due to this non-compliance?