Specific provisions of the Electoral Act 2010, as amended, vests on relevant courts of competent jurisdiction the power to compel the Independent National Electoral Commission (INEC) to issue Certificates of Return to candidates who successfully seek its interventions, without their subsequent nullification by superior courts. CHUKS OHUEGBE examines INEC’s curious non-compliance, with the specific example of Hon. Eseme Eyiboh versus INEC & 2 Others
In the aftermath of the last general election, the major issue facing the Independent National Electoral Commission (INEC) is the issuance of certificates of return to validly elected candidates. Besides those whose elections were not contested in the relevant courts of competent jurisdiction, not a few persons who have obtained court judgments that pronounced them the winners of their respective elections are still awaiting the issuance of these certificates of return by the commission. This onerous responsibility was vested on the commission by the Electoral Act 2010 as amended. The Act mandates the commission to issue the certificates of return to candidates who have won elections in compliance with the provisions of the Act.
Specifically, Section 75 (1) and (2) of the amended Electoral Act 2010 stipulates as follows; “(1) A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 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 48 hours after the receipt of the order of such court, issue the successful candidate with a valid Certificate of Return.
“(2) 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 that court.”
?There are pending issues involving the INEC and persons who stood elections in the last general election, who had obtained court judgments, which the commission do not feel obliged to respect. One of such cases that is in the front burner is Suit No FHC/ ABJ/ CS/ 177/ 2011 between Hon. Eseme Eyiboh versus INEC & 2 Others, over the issuance of Certificate of Return to the plaintiff as ordered by a court of competent jurisdiction. On application to the commission for the issuance of the Certificate of Return, the commission refused citing that one of the respondents, Mr. Bassey Dan Abia had appealed the judgment. The question however, is, did INEC act within the provisions of the Electoral Act 2010 as amended?
After the High Court judgment of June 1, 2011 that ordered INEC to issue Hon. Eyiboh the Certificate of Return as the elected candidate of the Peoples’ Democratic Party (PDP) for Eket/ Onna/ Esit Eket/ Ibeno Federal constituency of Akwa Ibom state, in the April 9, 2011 Federal House of Representative election, the commission wrote to its Counsel Chief A. S. Awomolo (SAN) for legal opinion. The learned SAN’s response dated June 3, 2011 and addressed to the Secretary of the commission, Mr. Abdullahi A. Kaugama advised the commission to comply with the court order and issue a Certificate of Return to Hon. Eyiboh.
Chief Awomolo (SAN) legal advice to INEC reads as follows: “From the enrolled order attached to your letter, two members of the Peoples’ Democratic Party (PDP) contested party primaries held at Uyo Township Stadium on 28th and 29th day of January 2011. Hon. Eseme? Eyiboh instituted an action in court in which he claimed declarations and injunctive orders. The judgment of the court delivered on 1st June 2011 made the orders to the effect that:
*“The purported sponsorship of Mr. Dan Abia as the candidate of the Peoples Democratic Party for the election to the office as member of the House of Representative representing Eket/ Ibeno/ Eset/ Onna Federal Constituency for the 2011 general election is hereby set aside.
*That order is hereby made directing the 1st respondent to insert the name of the applicant as the PDP candidate for election to office as member of the House of Representatives representing Eket/ Ibeno/ Federal Constituency.
* That the plaintiff is ordered to be returned as the winner of the election
*That the plaintiff is to take the place of the 3rd defendant”.
“The effect of the judgment of the court is that the Commission with effect from the date of the judgment treats, recognizes and holds that the plaintiff as the candidate for the PDP for Eket/ Ibeno/ Eset/ Onna Federal Constituency. He is the person entitled to receive the Certificate of Return.
“If the Certificate of Return had been issued to the Mr. Dan Abia, before the judgment, the certificate has to be withdrawn and or cancelled. Fresh Certificate of Return which shall be issued to Hon. Eseme Eyiboh in obedience to court order shall be lawful”.
INEC’s Next Step…
From the action of the commission, it was only willing to accept the legal advice in principle and not in practice. The commission’s compliance approach was to a great extent suspicious. In spite of the fact that the judgment of the Federal High Court was declarative, INEC felt safe in only writing to the Clerk of the National Assembly informing him that the Certificate of Return it issued Mr. Dan Abia “is now invalid”. The commission failed to take any further action.
INEC’s letter to the Clerk of NASS dated June 4, 2011 with reference Number INEC/ LEG/ CAN/ 1, signed by the Secretary to the Commission, Mr. Abdullahi A. Kaugama, titled; “Suspension of action on Certificates of Return issued in respect of Anambra North Senatorial District, Katsina North Senatorial District and Eket/ Onna/ Esit Eket/ Ibeno Federal Constituency of Akwa ibom State. The above subject matter refers. This is to request the National Assembly to discountenance the Certificates of Return issued with respect to the under-listed constituencies.”
The Commission’s recommendation for the Eket/ Onna/ Esit Eket/ Ibeno Federal Constituency reads as follows; “Barr. Dan Abia was issued Certificate of Return upon being declared the elected candidate of the Peoples’ Democratic Party (PDP) for Eket/ Onna/ Esit Eket/ Ibeno Fedral Constituency, Akwa Ibom State. The? Federal High Court later gave judgment against the candidature of Barr. Bassey Dan Abia. A Notice of Appeal and Motion for stay of Execution of the judgment have been filed. The Certificate of Return is now invalid.”
The Posers…
Why is INEC picking and choosing which candidate or candidates it would issue with the Certificate of Return? Is the commission aware of the total import of section 75 (1) of the Electoral Act 2010 as amended? Does the commission actually understand the meaning and implication of a declaratory judgment? Does the commission understand the implication to its reputation and the utter disregard to the decisions of the courts of the land, when court declared winners resort to the provision of section 75 (2) of the Electoral Act 2010 as amended, for them to be sworn-in as the elected representatives of their people as Hon. Eyiboh has done?
Is INEC not under obligation to obey court judgments? These posers are subsisting currently.
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