Following recent presentations on TV by legal practitioner and former INEC Resident Electoral Commissioner, Barr. Mike Igini, on perceived issues around the Electoral Act, another Legal Practitioner, Dr. D. D. Fiderikumo, who also teaches Election Law and the Law of Evidence at the Niger Delta University, Amassoma, Bayelsa State, has countered Igini’s positions.
Reacting to the summation by the former INEC Resident Electoral Commissioner, Dr. Fiderikumo said, “I watched on Arise TV the arguments of Mr. Mike Igini on three provisions of the Electoral Act. 2026 and he seemed to have conveyed the impression that those provisions were new and designed to undermine the forthcoming 2027 elections. The provisions were Sections 63, 137 and 138(2) of the Electoral Act, 2026”.
“Those sections are not new to our election laws. Except for Section 137 of the Electoral Act, 2026, which prohibits the joinder of election official in election petition for obvious reasons, which was not contained in the Electoral Act of 2006, the repealed Electoral Acts of 2010 and 2022 had provisions equivalent to 63, 137 and 138(2) of the Electoral Act, 2026.”
“In fact, Section 63 of the Electoral Act, 2026 which Mr. Igini bemoaned about was Section 67 of the repealed Electoral Act of 2006. Invariably, Section 63 of the Electoral Act, 2026 has been in our election laws for twenty years and to suggest that it something new is misleading. THAT IS NOT TO SAY THAT SUCH PROVISION SHOULD BE IN OUR ELECTION LAWS.”
“Section 63 of the prevailing Electoral Act provides that subject to subsection (2), a ballot paper which does not bear official mark prescribed by the Commission shall not be counted. (2) Where the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the Presiding Officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper. The above provision is the exact one you will find in section 66 of the Electoral Act, 2010 as amended and 63 of the Electoral Act, 2022.”
“In fact, by Sections 73 of both the Electoral Act of 2026 and Electoral Act, 2022 an election conducted in any polling unit, without the prior recording of serial number of result sheets, BALLOT PAPERS, amongst others, invalidate the result from that polling unit and exposes a defaulting Presiding Officer to criminal sanctions. This provision was first introduced to our election law by the 2022 Electoral Act and it has been retained by the current Electoral Act, but was not contained in the 2010 and 2006 Electoral Acts, all of which have been repealed.”
“Section 73 of the Electoral Act, 2026 provides that the forms to be used for the conduct of elections under this Act shall be determined by the Commission. An election conducted at a polling unit without the prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election shall be invalid. A Presiding officer who intentionally announces or signs any election result in violation of subsection (2) commits an offence and is liable on conviction to a fine of N10,000,000 or imprisonment for a term of at least one year or both.”
“In BABA & ANOR V INEC & ORS (2024) LPELR-62230(SC), while commending the above provision, the apex Court held that ‘Shall’ to prescribe a mandatory consequence for failure to carry out the duty imposed therein.
‘Shall’ to prescribe a mandatory consequence for failure to carry out the duty imposed therein. The wordings of S.73(2) do not allow for the application of the Omnia praesumuntur rite esse acta rule or the presumption of regularity of official acts or processes. Once the relevant INEC Forms are not filled with the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials made available by INEC for the conduct of the election, the election in that polling unit shall be invalid. The regularity of the election cannot be presumed to save it. In any case, the basis for that presumption would not exist if the said forms are not filled as prescribed by S.73(2) of the Electoral Act. This is because S.168(1) of the Evidence Act 2011 prescribe as a condition precedent to that presumption that the official act be shown to have been done in a manner substantially regular. (sic)
“Section 137 of the Electoral Act, 2026 provides that “Where the petitioner complains of the conduct of an electoral officer, a presiding or returning officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be — (a) made a respondent; and (b) deemed to be defending the petition for itself and on behalf of its officers or such other persons.” Once again, this provision was contained in section 133 of the Electoral Act, 2022 (repealed) and section 137 of the Electoral Act, 2010 (repealed).”
