Clamour for Exclusive Power to INEC

As members of the National Assembly committee are currently busy collating views on the review of the 1999 Constitution, stakeholders are clamouring for exclusive power to be given to the Independent National Electoral Commission to declare the result of an election instead of the judiciary, Davidson Iriekpen writes

A different perspective was added to the ongoing debate to review the 1999 Constitution when former Governor of Edo State, Prof. Oserheimen Osunbor, kicked against what he termed the courts’ usurpation of the sole powers of the Independent National Electoral Commission (INEC) to declare winners in electoral contests in the country. In a memorandum he forwarded to the constitution review committee collating views, Osunbor argued that the law could not have envisaged that INEC will share its powers with any other authority or organ of government.

The professor of law who is also a former two-term senator representing Edo Central senatorial district, described as a serious aberration, for the commission to conduct an election and declare a winner and for other persons who took no part in the conduct of the election to declare a different person as winner. He maintained that the courts’ decisions have rendered the word “independent” in the name of the commission worthless and meaningless, noting that it is inherently wrong.

Whether in legislative or governorship elections, several cases involving electoral contests between parties in Nigeria in the past have been eventually decided by the courts despite of the outcomes of such elections. Sometimes due to the petitions filed to challenge the elections, courts or tribunals have had cause to snatch victories from the winning parties to others. These have had to not only put the judiciary in bad light, but make democracy in the country a mockery.

A case in point was in Imo State in January 2020 where the Supreme Court in controversial circumstances, nullified the election of Emeka Ihedioha of the Peoples Democratic Party (PDP) as the Governor of Imo State. A seven-man panel of the apex court led by the Chief Justice of Nigeria, Justice Tanko Muhammad, had unanimously declared Hope Uzodimma of the All Progressives Congress (APC) as winner of the March 9, 2019 governorship election and the validly elected governor of the state.

The decision did not go down well with many politicians. Since the judgment, the state has been in the eye of the storm as rampaging hoodlums raze INEC offices, vehicles, generators, as well as police stations in the state and its environs. Cases of assassination have also been recorded in the state.

This is why Osunbor who had himself been a victim of this anomaly when the Court of Appeal sacked him from office as the Governor of Edo State in 2008 and replaced him with Adams Oshiomhole, said this is wrong. According to him, this has given rise to the emergence of elected officials who were rejected at the polls by the voters, but emerged through the courts as winners in total disregard for the will of the majority of the people that heeded the call to perform their civic duty.

“The essence of democracy is thus defeated. Elections to that extent, have ceased to reflect the will of the people but the will of the judges sometimes by a split decision of 2:1, 3:2, etc, as the case may be. Elections should be won at the polls, not in a court of law. They should be a reflection of the will of the voters, not the brilliance of election petition lawyers or the will of courts of law or other extraneous consideration. Every vote must count because this goes to the very foundation of democracy,” he emphasised.

According to the former dean of law at the Lagos State University (LASU), former President Goodluck Jonathan and Oshiomhole, himself a beneficiary of a court-ordered electoral victory, have recently spoken against the usurpation of the constitutional rights of voters to elect their leaders through the ballot. He further listed Prof. Itse Sagay (SAN), a member of the team of lawyers that secured electoral victory in the court for Oshiomhole in 2008, as having echoed his opposition to the hijacking of the powers of INEC by the judiciary.

For instance, last April, during a visit to TOSTV Network studios in Abuja, Jonathan himself had called for the strengthening of the nation’s electoral laws in a way that only the ballot paper, and not the courts, is allowed to determine the winners of elections. The former President stressed that the standard practice is that the electoral management bodies exercise the sole responsibility of returning candidates and declaring winners while the judiciary complements by either upholding declared results or nullifying flawed elections and ordering a rerun.

He said: “I had already made a public statement on that to the effect that the ballot paper and not the judiciary should determine who wins elections or select political leaders. The ballot paper should be the only basis for selecting political leaders.”

Jonathan further noted that countries that conduct free and fair elections experience less election-related litigations while numerous court cases following elections are the hallmark of fragile democracies.

He said further: “I have said this before and I will always repeat it. I am not saying the judiciary is not doing well. But my point is that our laws should suppress the issue of the judiciary returning candidates. If a candidate is declared winner after a flawed electoral process, what the courts can do is to annul the election and order a fresh one, where a winner will finally emerge through the ballot. The ballot paper should decide who holds any elective office from the councillorship to the presidency. That is democracy.”

Osunbor noted that amending the law to rectify the anomaly would help to preserve the integrity of the judiciary, preserve democracy, reduce voters’ apathy, reduce the spate of litigation, including frivolous ones by fortune-hunting litigants. He called for a new insertion, wherein if elections to any particular office are repeatedly nullified by the tribunal or courts due to flagrant violations of the law, substantial irregularities or substantial non-compliance, the INEC officer responsible may be removed from office for gross misconduct by a motion supported by not less than two-thirds majority of all members of the Senate.

Even a former INEC’s National Commissioner, Prof. Lai Olurode, towed this line of argument last week when he featured in an interview on the state of affairs in Imo State. He said the judgment of the Supreme Court sacking Ihedioha and installing Uzodimma in January 2020 provoked the attacks on some INEC offices in the state. According to him, it is antithetical for the courtroom to take the position of the electorate which is an expression of the popular will of the people.

The don also said a fresh election should have been ordered in Imo State for the sake of peace. He described the situation as unfortunate but said the isolated attacks on INEC offices should not be taken as an attack on democracy.

He said, “Having judges decide a governor cannot be taken to be synonymous with the expression of popular will through the ballot box. The ballot box should remain sacrosanct. There is no way the courtroom and their lordship can take the position of the electorate; it is antithetical, it is not going to work because the ballot box is an expression of the popular will of the people. In India, they have warned that the court should not take over the role of the electorate, it is antithetical, it is obnoxious. It is like annulling the will of the people. People will look for other means of expression, it is not that it is good because it is like returning to the law of the jungle which should not be allowed but when the court annuls the popular will of the people, this is going to create its own effect which may be damaging.”

Continuing, the former INEC commissioner said, “The judiciary can only sit down and make rulings when there is peace but when there is no peace, nobody can do anything and that is why the clamour for peace should be the primary goal. So, an election should mediate conflict and not provoke conflict. We had the same thing in 1983, Ondo State burnt. The court should not assume the role of the voters.

“We can order a fresh election if we are not sure of what to do rather than now annulling the popular wish of the people.”

While many lawyers may not agree with these positions, the submission of the retired justice of the Supreme Court, Justice Olabode Rhodes-Vivour means that it is worth experimenting for the country’s democracy to move forward.

For instance during a valedictory session organised in his honour during his retirement as a judge of the Supreme Court recently, Justice Rhodes-Vivour while advising on how to improve on election petitions and justice for litigants in the country, had urged the National Assembly to amend the Electoral Act to shift the burden of proving the credibility of any disputed elections on INEC rather than the petitioner. The jurist while expressing displeasure at the increasing reliance on the courts to resolve election disputes, noted that electoral disputes were protracted because some politicians were never satisfied with the result announced by the electoral umpire. He then advocated for a review of the Electoral Act to shift the burden of proof to INEC to prove that it conducted a fair and credible election.

He expressed displeasure at the increasing reliance on the courts to resolve election disputes, noting that electoral disputes were protracted because some politicians are never satisfied with the result announced by the electoral umpire. He recalled his previous opinion in Udom v Umana 2016 case where he stated that the petitioner “is always saddled with “difficult requirements and procedures.”

“Elections in Nigeria are protracted. The stakes are too high. Consequently most elections are usually resolved by the courts, simply because most politicians are never satisfied with the results announced by the regulatory body charged with the conduct of elections (INEC). In Udom v Umana (No1) (2016) 12 NWLR (Pt.1526) p. 179 this is what I has to say: ‘A careful reading and understanding of decided authorities show that a petitioner has an uphill task proving his petition in accordance with the Electoral Act. The Petitioner is always saddled with difficult requirements and procedures….’

“It is suggested by me that the Electoral Act should be amended to shift the burden of proof to INEC to prove that it conducted a fair and reasonable election.”

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