Much ado about Section 65 of the Electoral Act

• Published date: 24 January 2023
• Publication title: Nigeria - The Nation

SIR: Recently, attention has been drawn to section 65 of the Electoral Act which makes provision concerning the announcement of results by returning officers of the Independent Electoral Commission (INEC). The section is hereunder produced.

65. - (1) The decision of the returning officer shall be final 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 :

Provided that the commission shall have the power within seven days to review the declaration and return where the commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations, guidelines, and manual for the election.

(2) A decision of the returning officer under subsection (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceedings under this Act.

This section implies that where a returning officer makes an announcement or takes a decision as it relates to unmarked ballot papers, rejected ballot papers, declaration of scores, and the return of a candidate, that result is still subject to review by INEC, as to whether it was made voluntarily or per not provisions of the law, regulations, and guidelines, and manual for the election. It further implies that the announcement or decision taken by the Returning Officer is not a final decision as the same can be changed based on review by INEC if done within seven days.

The inclusion of this section in the Electoral Act might not be unconnected to the incident that happened in Imo State, where INEC insisted that Senator Rochas Okorocha would not be given the certificate of return having confirmed from its investigation that the returning officer for Imo West senatorial district election had reported that he declared Governor Okorocha winner 'under duress'. However, the Abuja division of the Federal High Court ordered the Independent National Electoral Commission (INEC), to with immediate effect, issue a certificate of return to former Imo State governor, Rochas Okorocha, as the senator-elect for the Imo West Senatorial District. The court had stated thus amongst others:

'once the declaration is made under Section 68(c) of the Electoral Act, INEC has become functus officio and INEC has no lawful authority to withhold the...