Can INEC Legally Withhold a Certificate of Return? – By Jiti Ogunye
We are compelled in the circumstances to weigh in here.
INEC for good cause , in our considered view, may withhold or refuse to issue a certificate of return to a candidate in an election. Such good cause, for example, may be a post declaration awareness or realization that the declaration is not voluntary or made under duress , without the free exercise of the will of the Returning officer, especially if the tabulated of collated votes do not support such a declaration. An illicit declaration, procured vi et armies, ought not to give birth to a legitimate return. Certifying a fraud that INEC realises and can establish as a fraud is not only irresponsible but unlawful . That will mean that INEC knowingly and willfully is certifying a fraudulent declaration or return.
Where is the law?
Section 68 (a,b & c) of the Electoral Act ( with its amendments) provides that “ the decision of the Returning Officer on any question arising from or relating to-(a) unmarked ballot paper; (b) rejected ballot paper; and (c) 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”
Section 75(2) of the Electoral Act, 2010 ( with its amendments) states that “ where the Commission refuses and, 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 that court.”
A combined reading and construction of the above two cited provisions of the Electoral Act make it luminously clear that any decision of a Returning Officer on declaration of scores of candidate and the return of a candidate shall be final, and same shall be subject to review by a tribunal or court in an election petition proceedings. It is our humble submission that if a Returning Officer , upon making a declaration, takes a “decision” to report an alleged coercion and compulsion to make a declaration to INEC, that report, which is an inextricable part of result declaration, can validly lead to a decision not to issue a certificate of return to an alleged winner of the election. It is submitted that the decision not to issue a certificate of return qualifies as one of the “ decision of the Returning Officer on any question arising from or relating to …..declaration of scores or return of a candidate…” within the meaning and intendment of Section 68 of the Electoral Act.
Section 75(2) is even more instructive. The subsection recognizes that INEC may “ refuse” or “ neglect” to issue a certificate of return, and that in that case, a certified true copy of an order of court shall be sufficient for the purpose of swearing in a candidate that may be declared as the winner by that court.
What this subsection implies is that upon a refusal or neglect by INEC to issue a certificate of return, a court action ( election petition) may be filed by a person so declared but denied a certificate of return , to seek declaratory reliefs that he is the winner who should be issued the certificate of return.
Until such an order is obtained , INEC , as the election management body , and pursuant to its statutory and administrative powers may , for good cause and compelling reasons , withhold a certificate of return.
Jiti Ogunye is a legal practitioner, political analyst and a public speaker
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