EXPLAINER: Could Binani Still Challenge INEC in Court?

The just-concluded Adamawa State supplementary Governorship Election was greeted with much intrigue as Hudu Yunusa-Ari, Resident Electoral Commissioner (REC) in the state stirred reactions after suspiciously declaring Asihatu Ahmed Dahiru Binani as governor-elect.

The declaration was made when the results of 10 local councils were yet to be announced, hence Independent National Electoral Commission (INEC) nulled it and summoned the REC to its headquarters in Abuja. He had since gone into hiding.

Subsequently, the incumbent governor of the state, Umaru Ahmadu Fintiri, was announced as the rightful winner of the poll.

Court Questions Jurisdiction, Declines to Hear Binani’s Motion

But could Binani fight her way out in the court after her pleas to stop INEC from truncating her purported victory were not heard by a Federal High Court in Abuja?

By virtue of its powers and functions, INEC has the sole responsibility of appointing a Returning Officer for any election at all levels and the officer is the only person that can announce election results and declare a candidate winner, section 25 of the Electoral Act 2022, states.

WikkiTimes, though understands that the electoral act is a puzzle and only the court and its marshals could solve it.

In Binani’s case, section 149 of the Electoral Act, 2022 is a puzzle that needs to be solved in a competent court.

“Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission in relation to any notice, form or document made or given or other things done by the official in pursuance of the provisions of the Constitution or of this Act, or any rules made thereunder remain valid, unless otherwise challenged and declared invalid by a competent court of law or tribunal,” the section reads.

LEGAL PERSPECTIVES

Explaining the section, Barrister Abba Hikima Fagge, a Kano-based legal practitioner said the section is particularly talking about actions done by officials of the commission in the course of carrying out their constitutional duties not the “illegal” action of the REC.

“It is clearly illegal because INEC is the one that has the power and capacity to appoint functions to specific officers. Until and unless a Resident Electoral Commissioner is appointed as Returning Officer for an election, he doesn’t have the powers to make a return. So the entire return and declaration was illegal and unlawful and it was the reservation of the powers of the Returning Officer,” Fagge told WikkiTimes.

Whereabouts of Suspended Adamawa REC Unknown, Says INEC

The legal practitioner extolled INEC for quashing Hudu’s declaration and for continuing with the collation process that resulted in Fintiri’s victory.

Fagge added: “The INEC has been given the power to review declarations by the virtue of sections 65 and 147. INEC has the power to review or to undo whatever has been done by any of its officers. Now we talking about REC doesn’t have the power to make a return. Assuming it is the returning officer that made the return, INEC still has the power to review what has been done legally.”

As written in the electoral act, Section 65 reads:

(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 subsection (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceedings under this Act.

According to him, the REC’s action is a clear act of electoral offence and he shouldn’t go unpunished.

Corroborating Fagge’s words, the Executive Chairman of the Centre for Human Rights and the Convener of ‘Save Lagos Group’, Comrade Adeniyi Alimi Sulaiman, said the action of the Adamawa State REC is condemnable in its totality. He described it as a “broad daylight robbery of the democratic process.”

He said the action of the REC is an embarrassment on the face of the electoral commission, which people held with high esteem as it put the integrity of the Commission as to whether it will continue to conduct credible elections or not.

Sulaiman believes the REC only wanted to set Adamawa on fire.

Buhari Okays Suspension of Adamawa REC

“The REC’s action is a criminal offence and as such he has to be prosecuted in a court of law. Let them investigate him thoroughly to find out who bribed him to do such a thing.

“The police have to arrest and investigate him, he has to be tried in a competent court. He didn’t see any results and just wrote something on the paper and announced the winner without uploading the results on the IVR for anyone to see”, he said.

Contrarily, some legal practitioners differ in their opinions. Aliyu Ahmed Yaya Esq, a Bauchi-based legal practitioner said the action of the State REC stands valid and thus represents the decision of the commission as contained in “section 149 of the Electoral Act 2022.”

Unless a court or the tribunal nullified her victory, Binani could be recognised as Adamawa State governor-elect, Yaya said.

“It’s my opinion that his action is binding on INEC unless nullified by a tribunal or a court of law as enshrined under section 149,” he added.

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