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the independent electoral commission (inec) – powers & duties

Q1445. “THE CHOP-I-CHOP PEOPLES PARTY” was declared the winner of the just concluded general election. However two days later, the Independent National Electoral Commission reviewed this decision on the ground that the declaration was made under duress. Is this proper? Are they legally allowed to do this?

The decision of INEC in this regard is not improper. Before the coming into effect of the 2022 Electoral Act, a declaration by the returning Officer of INEC that Mr A or B is the winner of an election was final irrespective of whether such declaration was made under duress or not. In fact, the result once declared becomes valid and can only be challenged at the election tribunal. However, with the recent amendment, the commission has power to review such declaration within seven days from the date of that declaration. See Section 65(1). See APGA V OHAKIM (2009) 4NWLR (Pt.1130) 116 @ 167.

Q1446. Will there be any consequence if the 21ST CENTURY PEOPLES’ PARTY fail to do this, that is, write INEC to notify it of the error and asking that same be rectified?

No. It is the Party that will suffer for its failure to notify INEC and get the mistake. If the Party fails to do so the law does no longer allow that this will affect other Parties who participated in the election – that error shall not be a reason or ground to invalidate the election. See Section 32(3) Electoral Act 2022.

Q1447. Madam Nwayi-Owerri the Electoral Officer in our polling unit, having first refused to serve on us a copy of the signed and stamped Form in which the result of the unit is entered as requested by us. She further informed us all to drop our working phone numbers and go home, that she will announce the result from her home via text message. How legally right is she on this matter?

All votes cast are to be counted and announced at the polling unit immediately voting ends. The action of Madam Nwayi-Owerri is not right. Where it is shown that the polling officer deliberately flouts the law, he or she is guilty of an office and is liable to a term of imprisonment for at least 6 months or fine or both. Section 60(4)(6) Electoral Act 2022.

Q1453. Where INEC deliberately fails to comply with the Electoral Act 2022 and refuse to publish the list of all validly nominated candidate before the election, what will be the legal consequence?

INEC is mandated to publish, at least 150 days before the date of the election, the full list of persons nominated by their respective parties either on its website or on its office. However, the failure of INEC to do this raises no legal consequence as this function is merely administrative and not binding per se. See Kubor v Dickson (2013) 4 NWLR (Pt.1345) 534 @ 575; Section 32 Electoral Act 2022

Q1459. Having threatened fire and brimstone on Madam Nwayi-Owerri, she finally counted the vote in our presence at the polling station. However we observed that she deliberately inflate the score of our opponent while reducing that of our candidate. We have requested for a re-count but Madam Nwayi-Owerri is having none of it. She insists that vote counted cannot be recounted. Is this right?

No. A candidate or his Agent can where present at the polling unit when counting of vote is completed by the presiding officer demand to have the votes recounted and the polling officer shall ensure the vote is recounted but not more than once. See Section 61 Electoral Act 2022

Q1460. As a result of the pressure to recount the vote, madam Nwayi-Owerri is very angry right now and she is rejecting almost all ballot papers without even looking at them twice. According to her, It is her prerogative to determine which vote is valid or not. At what point can Madam Nwayi-Owerri exercise this prerogative?

Madam Nwayi-Owerri cannot reject ballot papers carrying the votes of electorates indiscriminately. For madam Nwayi-Owerri to exercise this right, she must be sure that the said paper does not bear the official mark of INEC so that on the face of it, it appears fraudulent. However, the absence of the official mark notwithstanding, the returning officer may count the ballot paper as valid if he is satisfied that the paper was indeed provided by INEC and the absence of the official mark was merely an inadvertent omission. See Section 63 Electoral Act 2022

Q1461. Notwithstanding that we of INDABOSKI PEOPLE’S PARTY are unfairly accused of always objecting to almost every action taken by INEC whether in our favour or not, we will not shy away from protesting unlawful actions of INEC officials. We intend to object to the action of Madam Nwayi-Owerri in marking a vote that was cast in our favour as “rejected”. Would we be wrong to do so this time also, and what will be the outcome?

At the point of counting, it will not have much effect beyond showing the protest or displeasure of a candidate. However, if an objection to the decision of a presiding officer to reject a ballot paper is raised by a candidate or his agent at the time the decision is made, the presiding officer will add to the word “rejected” the phrase “but objected to”. The polling officer must make a statement as to the numbers rejected, the serial number of the ballot papers rejected and the reason for rejecting them. He or She must on request allow the candidate to copy the statement. See Section 64(2)(3) Electoral Act 2022.

Q1463. Our Party’s candidate had good reasons to challenge the sham event they called a democratic election. However, INEC defending the case against us by testifying that the declaration of our great Party as the winner was made under duress by its Returning Officer. At the trial INEC has refused to call as a witness the officer who alleged duress. Is this proper?

It is not the function of any party in a proceeding to produce a witness for his opponent. The tribunal cannot direct or compel INEC in this instance to produce the said witness. CHOP-I-CHOP PEOPLES PARTY is advised to subpoena the said witness. See Aazodo v Audu (1999) 4NWLR (pt. 600) 530 @ 548.

Q1464. Can INEC deliberately withhold or refuse to produce the electoral document and results sheets requested by us for the purpose of our petition?

No. In fact, INEC has a duty to produce electoral documents where requested for by the petitioner or face a committal proceeding where it deliberately defaults to do so. See Adighije v Nwaogu (2010) 12 NWLR (Pt. 1209) 419 @ 478; section 74 Electoral Act 2022.

Q1465. We at 21ST CENTURY PEOPLES PARTY have chosen Mr. Tomato Jos as our presidential flag bearer in the forthcoming election. However, INEC is refusing to recognize him nor our party unless we substitute Mr. Tomato Jos for Mr Kankara Kafachan who happens to be the senior brother to the INEC Chairman. Can INEC interfere with such internal affairs of our party?

The enormous powers of INEC notwithstanding, it cannot legally or validly interfere with and dictate the functions of any political party in any manner whatsoever whether as a result of good conscience or not.

In an action to determine who should be a political party’s candidate for any election, INEC is merely a nominal party whose input is not required. INEC has no duty to interfere or determine the outcome. The role of INEC is to remain neutral. See Emeka v Okadigbo (2012) 18NWLR (Pt. 1331) 55 @ 98 paras F-H

Q1466. What can the 21ST CENTURY PEOPLES PARTY do if they realized that their candidate’s name is not on the list of nominated candidates published on INEC’s website?

The Party can within 90 days from the date to the election notify INEC of this omission in writing signed by the National Chairman and the Secretary to the party supported with an affidavit. See Section 32(2) Electoral Act 2022.

Q1467. INEC has continued to insist that the candidate submitted by our party is not qualified to contest the election regardless of our resistance. INEC has proceeded to disqualify the said candidate. Does INEC have this power so suo motu disqualify candidates?

No. INEC has no business or mandate to disqualify or reject a political party’s sponsored candidate whose name was submitted to it accordingly. See Kubor v Dickson (2013) 4 NWLR (Pt.1345) 534 @ 589.

Q1468. Where it is shown that madam Nwayi-Owerri was correct in rejecting the ballot paper, what will be the effect?

Where it is shown that madam Nwayi-Owerri was correct in rejecting the ballot paper, the ballot paper will not be counted and the word rejected will be marked on it See Section 64(1) Electoral Act 2022

Q1469. DAMBANZA PEOPLES PARTY was declared the winner of the just concluded Governorship Election. However two days later, the Independent National Electoral Commission reviewed this decision on the ground that the declaration was made under duress. Is this proper? Are they legally allowed to so seemingly correct themselves?

The decision of INEC in this regard is not improper. Before the coming into effect of the 2022 Electoral Act, a declaration by the returning Officer of INEC that Mr A or B is the winner of an election was final irrespective of whether such declaration was made under duress or not. In fact, the result once declared becomes valid and can only be challenged at the election tribunal. However, with the recent amendment, the commission has power to review such declaration within seven (7) days from the date of that declaration. See Section 65(1) Electoral Act 2022.

However, they can be challenged to prove the allegation that they announced that result only because they were held hostage. It is a serious allegation and its word cannot be sacrosanct if the party so indicted denies it.

Q1470. Is it mandatory for INEC to post the outcome of elections on its website?

Yes. Before the recent (2022) amendment of the Electoral Act, INEC was only mandated to publish the results of elections on a designated Notice Boards at strategic places. However, the controversy surrounding the mutilation that occurs prior to publication of the result necessitated the need for an immediate upload of all result directly to a dedicated website for that purpose. By Section 68 Electoral Act 2022, INEC is duty bound to not only publish its result on Notice Boards but also to publish same immediately on its official Website so as to avoid any controversy and aid transparency.