THE FINTIRI/BINANI DRAMA - HISTORY AND THE LAW by Sadiq Ibrahim Dasin

2. THE LAW

From Fufore, my beautiful and beloved local government area where the drama started, in the quietness of my house along Ribadu road I write to first pose a question to you, was Fufore LGA Returning Officer (RO) made to declare the result under duress exerted on him by Gov. Fintiri inside the Police station in Fufore, as alleged?

To be honest if Binani can prove this at the Tribunal, that is if she cares to go, her votes from Fufore would be increased by 37, 000+ votes and Fintiri’s votes would be reduced to 10,000+. We all know what the consequences would be.

Let’s delve into a bit of History, a subject quite important to the law. A similar drama played out in February 2019 in Imo state where Sen.Rochas Okorocha, then governor of the state and senatorial candidate of the APC stormed the collation center with police officers, forced the RO to declare him winner for the Imo West Senatorial District, which the RO did “under duress”. Though Rochas won the senatorial election by 92, 622 votes beating Onyerari of PDP who scored 63,117 votes was declared winner by the Returning Officer, INEC struck off the name of Okorocha from the list of the winners of that election because the RO said he declared Okorocha winner “under duress”. On going to the Federal High Court, INEC was ordered to issue Okorocha with a Certificate of Return which was upheld by the Court of Appeal. INEC did not appeal to the Supreme Court. So Okorocaha is now a senator.

This Okorocha’s drama concerns Fintiri/Binani’s own in two ways. First, APC had alleged that it was PDP that forced the relocation of the Fufore collation center to the police station where Fintiri went with police men (like Okorocha) and made the RO Fufore to have declared the Fufore result under duress. I have not seen any video of Fintiri at Fufore police station, something that is not possible in this era of smart phones.

Secondly, Okorocha case is important here because PDP can counter this APC allegation by proving that APC actually sent touts inside the collation center in Fufore who snatched the Form EC 3 when results of 10 out of 11 wards in the LGA had in fact been entered into the Form with APC leading with 4,000+ votes. The boys who did it are well known to us and those who sent them are also known to us.

Sen. Okorocha has made history. Today, the legislature has created S. 65 (1) (c) in the new Electoral Act, 2022 which reads -

“65(1) (c) the decision of the Returning Officer shall be final on any question arising from or relating to -

(a)….

(b)….

Provided that the Commission shall have the power within 7 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”

In subsection (2) of S. 65 of the Act, it is provided thus -

“(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”.

Now two things have arisen from S.65 (1)(c) and (2) quoted above and they are relevant to this case.These are:

1. S. 65(1)(c) said the decision of the RETURNING OFFICER (not the REC) shall be final on any question arising from or relating to DECLARATION OF SCORES of candidates and RETURNS of a candidate, and

2. S. 65(2) said decision of the RETURNING OFFICER (not REC) under subsection (1) may be reviewed by an ELECTION TRIBUNAL or COURT of competent jurisdiction in an election petition proceedings under this Act”.

Judging from the above, please does the former Adamawa state INEC commissioner Hudu Ari, has any right to declare a candidate as winner in this election? The answer is a capital NO.

Secondly, I heard some people saying that Hudu declared Binani winner after ‘review’ of the results in areas where Fintiri was alleged to have falsified his results. Being neither a Tribunal nor a Court of competent jurisdiction, does Ari has the right to REVIEW anything? The answer is again a capital NO.

So if anybody is telling you there was a ‘review’ before the declaration by Hudu, he is lying to you.

I have also seen arguments by some lawyers on Watsapp making reference to S. 149 of the Electoral Act. The section said -

“149 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”.

To these lawyers, most of whom appear to be young, only “a competent court of law or tribunal” can declare the action of Hudu invalid and therefore invited the attention of Gov. Fintiri to go to court. I laugh at this.

You don’t need to go to the Law School to know the essence rules of interpretation of statutes. The rules are actually made to help the courts of law determine the ‘intention’ of the law maker in making the law sought to be interpreted. Can we therefore say, in all honesty, that what the makers of the Electoral Act, in this case, members of the National Assembly, intended by section 149 is that “any defect or error” arising from any actions taken by an official of INEC can only be invalidated by a court? The answer is a capital NO.

Why because, if it were so, if a driver or toilet cleaner in the employment of INEC picks a microphone and declare his friend (who contested election) as winner, INEC cannot do anything about it until the tribunal says otherwise. In that case the friend, even if he was toilet cleaner, would be sworn in at Mahmud Ribadu square on May 29 if the case at the tribunal could not be concluded before then. This weird interpretation is not only preposterous and against common sense, but will do violence to the letter and spirit of the Electoral Act.

As far as I am concerned therefore, the proper interpretation to be given to S. 149 is that the act or omission of an INEC official that can remain valid until set aside by the tribunal, is any act or omission done by official AUTHORISED to do the Act or who, though authorised to do the act, omitted to do it.

There is no gainsaying the fact therefore that Hudu was not AUTHORISED by the Act to declare any candidate as winner of any election in Adamawa state. It is the RO that was authorised. In the eyes of the law therefore Hudu has succeeded in doing nothing that can be validated or invalidated by a tribunal. So it clearly means that no valid return was made ab-initio (from day one) to warrant going to the tribunal. The law is clear since 16 August, 1958 in the case of Mac Foy Vs UAC Ltd. that, “you can’t put something on nothing”. It will fall down. Hudu’s action is a complete nullity and ultra vires his powers as Adamawa state Resident Electoral Commissioner. INEC was therefore right to have ignored him completely and brought in the proper person authorised by law, that is the RO, to have completed the collation and declared the winner.

Again, we need to know that it is Prof. Mahmood Yakubu who, as chairman of INEC, that has all the powers of the Commission and can, by the provision of S. 147, delegate such powers to INEC commissioners and he can also withdraw it from any person. S. 147 said -

“147. Without prejudice to other provisions of this Act, the Commission may delegate any of its powers and functions to any National Electoral Commissioner, Resident Electoral Commissioner, electoral officer, any other officer of the Commission or any other officer appointed under the provision of this Act subject to any conditions or limitations which it may consider necessary or expedient to impose and no such delegation shall be construed to limit the right of the Commission to exercise such power, itself”.

Acting promptly and decisively by Commissioner Festus Okoye, as he did, by announcing the withdrawal of the powers the commission delegated to Hudu, was fit and proper.

TO BE CONTINUED TOMORROW…