SANs: Polls under threat by Returning Officers' powers

• Published date: 19 January 2023
• Publication title: Nigeria - The Nation

Olanipekun raises concern over Section 65 of Electoral Act

Agbakoba seeks clarification on Section 134 of 1999 Constitution

Two legal luminaries - Chief Wole Olanipekun (SAN) and Olisa Agbakoba - yesterday expressed reservations about certain provisions of the Electoral Act and 1999 Constitution capable of threatening the February and March polls.

Olanipekun, Chairman of the Body of Benchers, said the power vested in Returning Officers by Section 65 of the Act can threaten free and fair elections.

Agbakoba urged the Independent National Electoral Commission (INEC) Chairman, Prof. Mahmood Yakubu, to clarify the commission's position on Section 134 of the 1999 Constitution.

He said Section 134, which provides requirements to be met by a presidential candidate before being declared winner, should be clarified.

Olanipekun faulted Section 65 of the Electoral Act, saying it was capable of being abused.

The section provides: '(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 and guidelines, and manual for the election.

'(2) A decision of the Returning Officer under Sub-section (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceedings under this Act.'

Olanipekun, a former president of the Nigerian Bar Association (NBA), wondered why the section was inserted into the Electoral Act and passed by the National Assembly without thorough scrutiny.

He believes it is a booby trap for a free and fair election.

The foremost legal luminary spoke in Ado-Ekiti, the Ekiti State capital, when he visited Governor Biodun Oyebanji.

Olanipekun said it would amount to grave disaster for the electoral process, should the returning officers begin to review already announced results.

He argued that the officers were not law courts or tribunals with such powers.

The legal luminary noted that the controversial section left much to be desired and posed a potent threat to the nation's democratic process.

The provision amounts to usurpation of the powers of the judicial arm constitutionally mandated to adjudicate...