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election official in election petition for obvious reasons, which was not contained in the Electoral Act of 2006, the repealed Electoral Acts of 2010 and 2022 had provisions equivalent to 63, 137 and 138(2) of the Electoral Act, 2026.”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 Igini bemoaned about was Section 67 of the repealed Electoral Act of 2006.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).”
“This provision was designed to hold INEC responsible for acts of its agents, that is, all the natural persons who are involved in the electoral pyramid and to avoid the erstwhile irrational practice of joining to an election petition every agent of INEC against whom there is a complaint and INEC itself. The law of agency is that he who does things through another, does it himself. REASON IS THE SOUL OF THE LAW. After all, INEC being a corporate entity, with the right to sue and be sued, should be sued for the acts of its agent. In Section 144 of the Electoral Act, 2006, the non-joinder of an election official will not invalidate an election petition.”
“Mr. Igini seems to have missed the point that election petition is not a criminal trial and that its avow mission is to challenge an undue return. INEC officials whose conduct during an election rise to crimes can still be prosecuted under the Electoral Act, 2026. Section 134(1) of the Electoral Act, 2026 states that an election and return at an election under this Act shall not be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”). presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”
“Note that in the 2006 Electoral Act, Section 144(2) provided that “but if the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party” the result of this was that Election Petitions were unnecessarily lengthy with the names of parties running into several numbers of pages.”
“Also, the pleadings in the election petition were so bulky because the references to these separate individuals. Consider for instance Rivers State, which has over 3,000 (three thousand) polling units, where one complains of irregularities in this polling units you will have to add the names of each and every officer presiding at that unit and make statements relating to them in your pleadings. Another issue is that it was difficult to find out who these officers are, because some of them were youth corpers, or just persons employed for that purpose alone and were not permanent members of the INEC staff and not being able to identify them would make it impossible to make a case against them. It was against these myriads of complications that the other Electoral Acts from 2010 has repealed the practice of joining elections officers.”
“Mr. Igini’s emotional outbursts against Section 138(2) of the Electoral Act, 2026 was not borne out of a proper understanding of the law and once again, this provision is not new to our Electoral jurisprudence. Section 145(2) of the Electoral Act, 2006 (repealed), Section 138(2) of the Electoral Act, 2010 (repealed) and section 134(2) of the Electoral Act, 2022 (repealed) contain identical provisions as Section 138(2) of the Electoral Act, 2026. Section 138(2) of the Electoral Act, 2026, provides that an act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of the Act shall not of itself be a ground for questioning the election.”
“The reason for the above provision is simple; that it is not every wrong done by the Electoral officers that would constitute a ground for an election petition. The Electoral Act itself contains a catalogue of breaches for which a person can complain against, but to question the validity of an election, one must show that it was not just a breach of any guideline of INEC but it was a substantial breach of the provisions of the Electoral Act. The Court has recognized that no elections can be conducted perfectly, and that where the law allows any breach of INEC guidelines to be a reason to question an election, there would be a mountain of complaints and petitions before the Court.”
“The points that have been made here should not be taken to mean that the Electoral Act, 2026 is or are without flaws. No, that is not the intention of this interaction. The purpose of this, is to show that Mr. Igini on the provisions of the Electoral Act, 2026 referenced above and which form the basis of his comments on Arise TV, is flat wrong.”
“Let me show one provision of the Electoral Act 2026 that is not only worrisome but may undermine the due conduct and the integrity of the next election. If you look at Section 60 Electoral Act 2026, you will find that there is no provision mandating a presiding officer to give election result to the police officer or party agent where they are present. That was the position under Section 60(3) of the Electoral Act of 2022, which has been repealed.”
“On the state of this law, even after a party agent has signed a polling unit result sheet, the presiding officer is not mandated to give him a copy. It is possible that INEC may come out with a regulation to fill this gap, but that requirement should not be in the INEC guideline but the Electoral Act, 2026 as was the case in Section 60(3) of the Electoral Act, 2022. What the Electoral Act, 2026 has done in Section 71(1) is to limit the right of political parties through their agents to election results from the level of the wards upwards. There are other provisions in or omissions from the Electoral Act, 2026 that should be revisited, but an in-depth consideration of such is not the mission here” Dr. Fiderikumo concluded.
