By K.C. OKPALEKE
THE reason the tribunal cited section 27 of the electoral Act 2010 in its judgment is simply because the intendment of the National Assembly in passing this section of the Act was necessary in the determination of the petition filed by PDP.

But the failure by the tribunal to unearth the intendment of this section may have been responsible for the errors of the law in the judgment. To unearth the intendment of the National Assembly with respect to cancellation of elections, section 47, 27 and 26 of the electoral Act 2010 must be interpreted side by side in light of the seeming contraditions between section 47 of the Act and section 26.

Section 47 of the electoral Act 2010 reads; “Voting in any particular election under this bill shall take place on the same day and time appointed by the commission throughout the Federation.”

The language of the above quoted section cannot be said to be unclear. It is not ambigous at all. It focuses on voting, thereby making a distinction between the entire election processes and voting. It also uses a mandatory language “Shall” thereby leaving no room for guesswork.

Furthermore, the languages “Voting in any particular election under the Act….”can only mean voting in any constituency office. In a nutshell, although voting was concluded smultaneously in the past election into the office of the State house of Assembly and the Governor’s office, that is not the meaning of the above quoted phrase.

The phrase was simply talking about voting in an electoral constituency office, that is the Governorship of the state, which has state wide constituency while House of Assembly in Imo state only has a local government as its constituency.

This being the case, any time that the interpretation of section 26 of the electoral Act, would lead to starggered elections or voting, the entire statute known as the 2010 electoral Act must be interpreted side by side to unearth the seeming contradictions of the two sections of the Act, 47 and 26.

No provision of a statute is made in vain. There is always a public policy purpose for every provision of a statute. With regards to section 47 of the electoral Act, the public policy purpose is to avoid staggered elections when necessarily because of the inherrent evil of staggered elections.

Staggered elections are known to create bandwagon effects in the voting process and bandwagon effects artificially created by Election umpire vitiates the intendment of election in a democracy. Electioneering process in any democracy is the cornerstone of that democracy because it is the primary avenue for the citizens to choose who and how they wish to be governed.

An artificial bandwagon effect created by either the law or the executors of the law in an electioneering process denies the electorate the opportunity to make an unadulterated choice on whom and how they wish to be governed.

For these reasons, the National Assembly passed section 47 of the electoral Act. Therefore, any provision of the Act that could be remotely interpreted to contradict section 47 must be interpreted side by side with section 47, in order to understand the intendment of the National Assembly.

The two other provisions of the electoral Act that must be interpreted to syncronize with section 47 above in order to understand the intendment of the National Assembly are section 26 and 27. Section 26 cited approvingly by the tribunal in making its legal conclusions reads;

“(1) where a date has been appointed for the holding of an election, and there is reason to believe that serious breach of peace is likely to occur if the election is proceeded with on that or it is impossible to conduct the elections as a result of the Natural disasters or other emergencies, the commission may postpone the elction and shall in respect of the postponed election, provided that such reason for the postponement is cogent and verifiable.

(2) where an election is postponed under this act, on or after the last date for the delivery of nomination papers, and a poll has to be taken between the candidates nominated, the electoral officer shall on a new date being appointed for the election, proceed as if the date appointed were the date for the taking of the poll between the candidates.

(3) Where the commission appoints a substituteed date in accordance with subsection (1) and (2) of this section, there shall be no return for the election untill polling has taken place in the area or areas affected.

(4) Notwithstanding the provisions of subsection(3) of this section, the commission may, if satisfied that the results of the election will not be affected by voting in the area in respect of which substituted date have been appointed, direct that a return of the election be made.

(5) The decision of the commission under subsection (4) may be challenged by any of the contestants at a court or tribunal of competent jurisdiction and on such challenge the decision shall be suspended untill the matter is determined.”

In order to fully understand the intent of the National Assembly, it is important here to quote verbatim the provision of the section 27. Section 27 of the electoral Act 2010 reads;

“(1) the results of all elections shall be announced by – (a) the presiding officer at the polling unit; (b) the ward collation officer at the ward collation; (c) the local government/Area council collation center; (d) the state collation officer at the state collation center; and the returning officer shall announce the result and declare the winner of the election at – (f) state collation center in tha case of the election of a Governor of a state.”

It is blantantly apparent from the above quoted language used by the National Assembly that the intendment is to make a clear distinction between voting, date of the conduct of elections, and voting results in an election. Section 47 focuses on voting in an election. By so doing, it intended that voting in any particular election must be conducted simultaneously on the same date and time across the entire electoral constituency.

Section 26 of the electoral Act, upon which the tribunal based its decision, is simply an exception to the general rule in the conduct of election under the Act.

As an exception, it is not favoured but simply accomodated. However, before it can be accomodated, INEC must show by cogent and verifiable reasons why staggered elections must be accomodated. For INEC to meet its burden for this exception, she must show likelihood that a serious breach of the peace will occur if the election is proceeded with.

In other words, this is a condition precedent to the cancellation and postponement. This means that the proof required to meet section 26 of the electoral Act is pre-election evidence and not a post election matter. The situatuion leading to the cancellation of the holding of an election must be the basis of the cancellation of an election under the Act.

Once the election has been held and results announced, the Act does not make any provision under the law for its cancellation by INEC. The entire section 26 of the Act deals with a pre-election cancellation of its date. No mention was made by any section of the Act of post voting cancellation of election results.

Subsection (2) of section 26 of the electoral Act 2010, cited approvingly by the tribunal and argued by APGA counsel as controlling, simply stated that in the event of cancellation of a date after nomination papers had been distributed. It never dealt with the cancellation of results of voting in an election.

The intendment of the National Assembly that section 26 of the electoral Act 2010 be treated just as an exception to the general rule established by section 47 is further buttressed by section 27. Section 27 draws a line when voting in an election is concluded.

Section 27(1) stated that; “The results of all the elections shall be announced” starting at the polling unit. This means that once the announcement of the results of a polling unit is made, the election as regards that polling unit is completed.

The remaining process of the election is collation of results as announced at the polling centers. Based on this provision, the election proper is completed once the results of the various polling units in the electoral constituency are announced. The collation process is part of the election process only for the purpose of the tabulation of the various results from the polling units across the electoral constituency.

Election is said to be a measuring stick for how the citizens of an electoral constituency wish to be governed. And the only calibration in this measuring yardstick is through the votes cast by the citizens. This is why, for all intends and purposes, once the votes are ccounted and the results announced at the polling centers, the election is therefore concluded.

The collation process does not involve voting but rather the addition or tabulation of the several results from all the polling centers. Therefore, the collation process is simply an administrative process designed to ensure that the return declared represents the voting results announced at the polling centers.

This is why section 27(2) of the electoral Act 2010 simply states, “The returning officer shall announce the result and declare the winner of the election.”  There are no where in the provisions that the law grants a returning officer the power or authority to cancel the results already announced at the polling centers, ward collation centers or local government or Area collation centers.

Furthermore, the language of section 27(2) is again a mandatory language and the directive from this particular provision left no room for any discretionary judgment on the part of a returning officer.

By not analyzing the provision of section 47, 27, and 26 side by side, the tribunal reached its judgment based on an erroneous interpretation of laws of our elections as it relates to cancellation of election by INEC, and in so doing made conclussion of law that endorses staggered elections by INEC.

The second glaring error of law in the judgment is the statement in the holding which reads “It is to be borne in mind that only 3rd respondent (INEC) has the constitutional power of declaring the results of an election conducted under the Act, and as long as an election process has not been concluded, no winner can be declared.”

By stating that “Only the 3rd respondent (INEC) has the constitutional power to declare the results of an election concluded under the Act” this statement of law by the tribunal contracdicts the implication of section 6 of the constituton of the Federal Republic of Nigeria 1999. This particular statement of law forms the basis for no elections in the three local governments at issue.

It is inconsistent with section 6 of the constitution of the Federal Republic of Nigeria 1999. Section 6 of the constitution states the the judicial powers of Federal Republic of Nigeria shall be vested in the courts. It is upon this constitutional pronouncement and the provision of section 285 of the constitution that the tribunal draws its powers.

Section 285 of the constitution states “There shall be established for the Federation a governorship petition tribunal which shall to the exclusion of any other court or tribunal have original jurisdiction to hear and determine petitions as to whether (a) any person has been validly elected to the office of the Governor or Deputy Governor.

The purpose of filing an election petition is for the tribunal to hear and determine whether any person had been validly elected. This is why the above quoted statement of law by the tribunal is a gross mistatement of the law. The import of this statement is really that a tribunal cannot declare a return in an election because the declaration of a return is constitutionally limited only to INEC.

If this statement of law by the tribunal is an accurate conclusion of law, then there is absoulutely no need for an election petition tribunal under our constitution, and as such, the petition of PDP in this particular situation should have been dismissed for lack of jurisdiction by the tribunal. This is because this statement of law that formed the basis of the holding really questions the jurisdiction of the election petition in its entirety.

This is no doubt or question that the constitution  grants INEC the power to conduct election and declare a return but this constitutional power to INEC is necessarily made subject to a petition questioning INEC’s role in the conduct and declaration of return of an election, under section 285 of the constitution.

This is why section 285 of the constitution gives the election tribunal the exclusive preserve of determining whether any person has been validly elected once INEC’s declaration is challenged by a petition.

This unconstitutional statement of law by the tribunal that only INEC alone is constitutionally empowered to declare a return in an election was made in response to PDP’s petition praying the tribunal to declare her the validly elected party in the Imo Governorship election by declarinng the results of Mbaitoli, Ohaji/Egbema and Oguta local governments that INEC refused to to declare which became the basis for the inconclusive declaration of Imo guber contest on April 26, 2011.

Based on the above request by PDP’s petition, PDP in no way questioned INEC’s constitutional authority to conduct election and declare a return, rather the petition by PDP questioned INEC’s refusal to declare the results of the three local governments and the declaration of the contest inconclusive on April 26, 2011.

PDP held the view, and rightly so, that once voting was completed and results recorded both at the polling centers and all levels of the collation up to the local government level, INEC’s failure or refusal to declare the
results by the state returning officer becomes a violation of the law of our election and therefore should be corrected by the tribunal by declaring the results and the appropriate candidate or party returned by the voters.

DR. K.C. OKPALAEKE is a United States trained constitutional Expert and former Imo State Commissioner for Special Duties, and also for Information and Strategy under Ohakim’s Government.