Olanipekun, Agbakoba say Returning Officers’ powers put 2023 election under threat

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Two Senior Advocates of Nigeria, Wole Olanipekun and Olisa Agbakoba have said the 2023 general elections might be under threat over the various sections of the Electoral Act and the 1999 Constitution.

Olanipekun who spoke to journalists after his visit to Ekiti State Governor, Biodun Oyebanji on Wednesday, said he raised concerns over Section 65 of the Electoral Act.

He said the power vested on returning officers by the section might threaten the elections.

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 said: “To me, it is a very dangerous section, so novel in the sense that, here you have a section that empowers a Returning Officer to review his decision within a period of seven days.

“The Returning Officer is not a court of law, not a tribunal, not vested with jurisdiction to exercise quasi-judicial powers or to assume jurisdiction over any matter that is judicial in nature.

“By implication, the Chief Returning Officer, the Chairman of INEC, can return someone as President today, and tomorrow, when there are agitations here and there, he may withdraw his decision, saying: ‘I am revising myself and I am now returning somebody else’.

“By that section, you are giving a returning officer in an election, and by extension INEC, the power to do and undo.

“I am of the firm belief that vesting them with such power to return candidates and review their decisions poses a danger to the polity.”

Olanipekun urged the National Assembly to, as a matter of urgency, delete the controversial section to avert a political crisis capable of consuming the country’s democratic and electoral process.

Agbakoba on his part asked for clarifications from the INEC Chairman over Section 134 of the 1999 Constitution on the declaration of a presidential candidate as the winner.

In the letter to the INEC chairman, Agbakoba said he was “a little worried” about the correct interpretation of Section 134 of the 1999 Constitution that provides requirements to be met by a presidential candidate to be declared the winner.

The section provides: “(1) A candidate for an election to the Office of President shall be deemed to have been duly elected, where, there being only two candidates for the election – (a)  he has the majority of votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of, at least, two-thirds of all the states in the federation and the Federal Capital Territory, Abuja.

“(2) A candidate for an election to the Office of President shall be deemed to have been duly elected where, there being more than two candidates for the election – (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation and the Federal Capital Territory, Abuja.”

Agbakoba stated that a careful review of Section 134 leaves possible interpretations that raise three significant questions.

He said: “(1) The requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 states of the federation: does this mean that the FCT Abuja is incorporated in the 24 states?

“(2) The requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 states of the Federation: does it mean that the presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?

“(3) Can a candidate that scored not less than one-quarter of the votes cast at the election in 36 states of the federation, but failed to score one-quarter of the votes cast at the election at the FCT, be duly elected as President of Nigeria?  

“Finally, Section 134(1)(a) provides that a candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidates for the election, the candidate has the majority of votes cast at the election.

“But Section 134(2) provides that a candidate for an election to the Office of President shall be deemed to have been duly elected where, there being more than two candidates for the election, the candidate has the highest number of votes cast at the election.

“The constitution describes the winner in two different languages.

“One, the winner must score the majority of votes and the other, the winner must score the highest number of votes. This is confusing.

“To be honest, I am not quite sure of the right answers to my questions.  I just thought to bring this to your attention as something you might wish to clarify to the public.”

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