On April 16, the Resident Electoral Commissioner (REC) of INEC in Adamawa state, Hudu Yunusa Ari declared Senator Aishatu Ahmad, popularly known as Binani, of the All Progressives Congress (APC), the governor-elect of the State.
Recall INEC had rescheduled the Governorship election in Adamawa because the March 18 governorship election was declared inconclusive.
The election was declared inconclusive because the cancelled votes were more than the margin of victory between Mr. Fintiri and Binani, the runner-up.
The returning officer, Mele Lamido was not present when Ari announced Binani as the winner of the election.
INEC`s Statement
Following the declaration of Binani as governor-elect, INEC issued a statement saying the declaration was null and void and ordered the suspension of the collation of results in the state.
INEC in the statement noted that the REC’s action is a usurpation of the power of the Returning Officer.
The statement by Festus Okoye, INEC’s spokesperson reads:
The attention of the Commission has been drawn to a purported declaration of a winner in the Adamawa Governorship election by the Resident Electoral Commissioner (REC) even when the process has clearly not been concluded.
‘’The action of the REC is a usurpation of the power of the Returning Officer. It is null, void and of no effect. Consequently, the collation of the results of the supplementary election is hereby suspended.
‘’The REC, Returning Officer and all involved are hereby invited to the Commission’s Headquarters in Abuja immediately. Detailed statement to follow shortly
https://twitter.com/inecnigeria/status/1647640581068279808
What the Law Says
On February 25, 2022, President Muhammadu Buhari signed the 2022 Electoral Act Amendment Bill into law.
As stipulated by the Electoral Act, the REC is not empowered to announce the result as only the Returning Officer for the election is constitutionally mandated to make returns.
Section 64 (4) A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the;
(a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act;
(b) the votes stated on the collated result are correct and consistent with the votes
or results recorded and transmitted directly from polling units under section
60 (4) of this Act.”
However, in the case of Adamawa, The REC declared APC’s Binani governor-elect as against the provisions of the Electoral Act.
The Arguments
One of the arguments parsing from the declaration is what is the position of the law on already declared results and the powers of INEC?
As stipulated by the constitution, INEC is not empowered to cancel already declared results even if there are valid cases of irregularities.
in a plethora of cases including in ABANA vs. OBI (2004), the court held that, once the result has been declared, a winner announced and Form EC8E issued, only the election tribunal has the legal right to cancel or nullify the declaration.
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An election tribunal has the jurisdiction to entertain matters arising from the declaration of election results.
However, in this case, the declaration was made by INEC’s REC who is not constitutionally empowered to announce the result.
Things to note
- As stipulated by the Electoral Act, “The result (in an election to the office of the President or Governor) shall be ascertained by counting the votes cast for each candidate and subjected to the provisions of Sections 133, 134 and 179 of the Constitution, and that the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.”
- Section 65 of the Electoral Act, 2022, empowers INEC to within 7 days, review results declared by a returning officer under duress or where such a declaration was made contrary to the provision of the law, regulations and guidelines, and manual for the election.