INEC Insists No Certificate of Return for Okorcha

INEC Insists No Certificate of Return for Okorcha

…Human Rights Lawyer Faults Decision, Says It’s Illegal The Independent National Electoral Commission (INEC) has insisted that it would not present a certificate of return to Imo State Governor, Mr Rochas Okorocha. INEC’s National Commissioner, Information and Voter Education, Mr Festus Okoye, said this during his appearance on Channels Television’s Sunrise Daily on Monday. He

…Human Rights Lawyer Faults Decision, Says It’s Illegal

The Independent National Electoral Commission (INEC) has insisted that it would not present a certificate of return to Imo State Governor, Mr Rochas Okorocha.

INEC’s National Commissioner, Information and Voter Education, Mr Festus Okoye, said this during his appearance on Channels Television’s Sunrise Daily on Monday.

He explained that the electoral body took the decision because the returning officer for Imo West senatorial district election said that he declared Governor Okorocha as the winner “under duress”.

While declaring the results, the returning officer had said he was doing so under duress.

Although the governor insisted he won the elections fairly and that his victory was not declared under duress, his name was not on the list of those to be given a certificate of return and despite his protests against the decision, he wasn’t given a certificate when winners got theirs last week.

Asked whether the Commission investigated the claim and confirmed that it was true, Okoye said “Yes”.

He added, “We’ve made it clear on why we didn’t present any certificate of return to him (Okorocha).

“If you look at our website, we said that the declaration and return were made under duress and that we are not going to give any certificate to any person for any individual that procured a return under duress.”

Following the incident in Imo, INEC had warned politicians, especially those seeking to be elected into public offices that it would not condone any form of electoral malpractice.

Chairman of the Commission, Professor Mahmood Yakubu, who addressed a press conference on March 7, said the electoral umpire would not reward “bad behaviour” by presenting a certificate of return to anyone harassing any of their staff.

On Thursday last week, INEC presented certificates of return to those returned elected in the February 23 elections.

In his reaction, Governor Okorocha criticised the Commission for withholding his certificate of return when he briefed reporters elsewhere while the presentation ceremony held at the International Conference Centre in Abuja.

The governor, who insisted that the election was one of the best conducted in the state, said INEC was planning a special event to present him with his certificate.

 

But Human Rights Lawyer, Mr Ebun-Olu Adegboruwa has faulted INEC’s decision, saying the Commission has no power in law to withhold the certificate of return of any candidate declared as winner of any election, no matter the circumstances.

“In this regard, the omission by INEC, of the name of Governor Rochas Okorocha, from the list of those presented with certificates of return, is illegal and ultra vires the electoral body,” he says.

Citing section 68 (1) (c) of the Electoral Act, 2010 as amended, Adegboruwa argues that INEC cannot review election results.

“The decision of the Returning Officer on any question arising from or relating to 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.”

“In the case of Governor Okorocha, there was a DECLARATION of his scores in the election and he was announced and returned as elected, by INEC. However, the Returning Officer claimed that he did the declaration and return under duress to save his life. This is an allegation, coming from INEC. They are facts that will aid the Election Petitions Tribunal to take a decision on whether or not to nullify the election, in view of the alleged violence or duress. But INEC cannot in law raise an allegation of duress or violence and then proceed to investigate it and then take a decision on it. You cannot be a judge in your own cause!”

“Whereas I do not support that any electoral officer should be threatened or compelled to make a declaration, but once when a declaration has been made, it becomes final. It cannot be reviewed, retracted, reversed or investigated by INEC. Section 68 gives that power of review to a Tribunal or Court in an ELECTION PETITION proceedings. This is clear beyond any controversy, from the letters of section 68 above.”

“INEC has no power under the law, to withhold or refuse to issue a certificate of return, to a person whose scores or votes have already been declared, even if done under duress or through violence.”

He cites Section 75 of the Electoral Act provides as follows:

“1. A sealed Certificate of Return at an election in a prescribed form SHALL be issued within seven days to every candidate who has won an election under this Act:

Provided that where the Court of Appeal or the Supreme Court, being the final appellate court in any election petition as the case may be, nullifies the Certificate of Return of any candidate, the Commission shall, within forty-eight hours after the receipt of the order of such Court, issue the successful candidate with a valid Certificate of Return.”

“From the foregoing, INEC MUST issue a certificate of return to every candidate who has been declared to have won an election, it has no discretion in the matter. Whether he won under duress or with violence, is immaterial. Okorocha has been duly declared and INEC has no choice than to issue him a certificate of return. The facts of how he got himself declared are for the Election Petitions Tribunal,” Adegboruwa argues..

“From the provisio to section 75 (1) above, where such certificate of return has become a subject of litigation up to the final court and it is nullified by the Court, then INEC will issue a new certificate of return to the other candidate who has succeeded in the court case, as the old certificate of return stands nullified by the court.”

“Thus, it is not the candidate who has been declared in any election that will go to court to compel INEC to issue him with a certificate of return, but rather for the aggrieved candidate to approach the Elections Petition Tribunal to have the certificate of return nullified.”

According to him, Section 75 (2) of the Electoral Act says:

“Where the Commission refuses or neglects to issue a certificate of return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by the court.”

“Section 75 (2) is simply meant to enforce the PROVISO to section 75 (1). It is about what happens post-litigation. It does not confer INEC with power to withhold certificate of return for a candidate that was originally declared winner of an election.”

The lawyer contends that reading section 75 (1) and (2) together, here is what the law says:

“1. Once a candidate’s score or election results have been declared, INEC MUST issue him with a certificate of return.”

“2. Where that certificate of return has been challenged and is nullified by the court, INEC MUST issue a new certificate of return to the person newly declared by the court as winner of the election.”

“3. If the candidate newly declared by the court is unable to get INEC to issue him with a new certificate of return within 48 hours of the judgment of the court, then he can rely upon a certified true copy of the court judgment for his swearing-in, in place of the certificate of return.”

“It is clear that INEC has no power in law, to review the outcome of election results or declarations and it has no power to withhold certificate of return. We must be careful not to create monsters and terrors from our institutions, where the law has not conferred such powers on them,” he says.

 

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