INEC’s Guidelines/Manual and the Tyranny of Forms

Introduction 

If there is one thing common to the outcomes of the post-election contests in the various Tribunals across the country, it is the centrality of the operational guidelines and manuals relied upon by the Independent National Electoral Commission (INEC) to shepherd the last cycle of general elections. Their decisive influence on those results was dramatically demonstrated last week, when a tribunal invalidated the election of Governor Abba Kabir Yusuf of Kano State, on the ground that some ballot papers which were cast for him in the election were not signed, dated and stamped by an INEC official, as required by the Manual for Election Officials, 2023 (specifically Paragraph 3.3.2(e), Step 2, at Page 62 thereof, read along with Section 63(1) of the Electoral Act, 2022)

Contrary to the views of most informed (and, not-so-informed) observers, I believe those results are largely (if not exclusively) the unintended consequence of the unilateral execution of the said guidelines and manual by INEC’s Czar – its Chairman.

Those instruments are as follows:

I. The Regulations and Guidelines for the Conduct of Elections, 2022; and the aforesaid

II. Manual for Election Officials 2023.

Before examining them, however, it is pertinent to remember that the relevant clause of the Electoral Act which empowers the Commission to enact the Guidelines/Manual is Section 148 thereof, which provides thus: “The Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration”. 

The Guidelines 

These apply to the conduct of elections to the offices of, inter alia, President, Vice-President, Governor and Deputy-Governor, National Assembly (Senate and House of Representatives) and State House of Assembly. The Guidelines provide that certain Forms be used by the Commission, to document election results. Those Forms include, inter alia, Form EC.8A for the Presidential election and Form EC. 8A(I) for Senatorial elections. See Regulations 69 and 70 of the Guidelines.

The Manual

This was produced by the National Electoral Institute, supposedly a unit of INEC, albeit with its own structure (a nine-member Board – three of whom are non-INEC staff, whilst the rest are staff of INEC). The printed copy of the Manual bears a foreword by INEC’S Chairman, Prof Mahmood Yakubu, dated January 2023, where he recommends the Manual “to election officials and other stakeholders in the Nigerian electoral process”. Just like the Guidelines, Paragraphs 4.2.6 and 4.2.7 of the Manual provide that certain Forms, including Forms EC.8A and EC.8A(I) be used to document elections

The Issues  

I believe that the said power which the National Assembly donated to INEC to make guidelines and manuals as aforesaid, is to be exercised by INEC alone – as a body – and, not unilaterally by any of its members or Commissioners, howsoever called. This point is important because, under the Constitution (Paragraph 14(1) of the 3rd Schedule), INEC consists of a Chairman and 12 

Commissioners. 

To the foregoing extent, the question is: what is the legal status of such regulations, guidelines or manuals, and whether any law prescribes any condition for their due enactment. In this connection, Section 27(2) of the Interpretation Act stipulates, inter alia, that: “where a body established by an enactment comprises three or more persons and is empowered to make subsidiary instruments, any such instrument may be executed under the hand of any two of the members thereof as may be authorised by such body generally for that purpose or especially on any particular occasion”.

I believe that, contrary to this provision, both the Guidelines and Manual are fatally flawed. This is because, they bear the imprimatur of only INEC’s Chairman, thus, prompting the question: Is the Chairman of INEC its alter ego? Does he personify INEC? Can he, alone, exercise the powers which the law confers on INEC as a body? Did the Commission, at any time, delegate such powers to him? If so, is such delegation (if not sub-delegation) legally valid? Does the fact that Section 148 of the Electoral Act uses the word ‘may’ in relation to the powers which it confers on INEC to issue such guidelines/manuals connote a permissive mandate?

I believe this last question is the most pertinent, and I will answer it first. It is settled that the mere fact that the legislature uses either ‘may’ or ‘shall’ is not necessarily conclusive, that either a permissive or peremptory mandate, respectively, is conferred. It depends on the context in which it is used, which, in turn, depends on the construction of the whole statute. See AMASIKE v REG-GEN. OF C.A.C (2010) All FWLR Pt. 541 Pg. 1488. In ADESOLA v ABIDOYE (1999) 14 NWLR Pt. 637 Pg. 28 at 56, the Apex Court held that “although the etymological meaning of the word ‘may’ is permissive and facultative and seldom can mean ‘must’ and imperative, it assumes this last-mentioned character when there is anything in the provision that makes it the duty on the person whom the power is conferred, to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative”.

I humbly submit that Section 148 of the Electoral Act imposes a duty on INEC to ensure that any Guidelines, Regulations or Manuals which it issues are properly authenticated. How can this be achieved? I believe it is only if such instruments are executed by, at least, two of INEC’s Commissioners. I submit that any other interpretation would be a licence for dictatorship and one-man rule; it would embolden INEC’s Chairman to act unilaterally and exercise an autonomy, which is neither desirable nor justified under the law. He is just one of 13 Commissioners of the Commission. He might be the first among equals, but he is not superior to the other Commissioners. Accordingly, he cannot unilaterally exercise a power which the law confers on the Commission as a whole. That would be ultra vires.

This is because of the settled principle of law, that where a statute prescribes a particular mode or method for doing any act, then whatever is done by any other means will be a nullity. See CROSS RIVER STATE UNIVERSITY OF TECHNOLOGY v OBETEN (2011) LPELR-4007(SC).

I believe that such a strict interpretation of INEC’s Guidelines and Manual is demanded by the fact that they impinge on our right to choose our representatives, which is guaranteed under Article 13(1) of the African Charter on Human and Peoples Rights. For the imperatives of strict construction of statutes which encroach on individual rights, see EZE v GOV. OF ABIA STATE (2010) 15 NWLR Pt. 1216 Pg. 324

In making the foregoing submission, I concede that the Interpretation Act has been held to be inapplicable to the computation of time in election petitions (see OKECHUKWU v INEC (2014) 9 SCNJ 47 at 78. I, however, hasten to add that that principle does not apply to other issues in electoral contests. This is because of the trite principle of law, that a decision is only authority for what it actually decides (O’ODUA INVESTMENT v TALABI (1997) 10 NWLR Pt. 523 Pg. 1). Accordingly, in other circumstances (such as the validity of the INEC Guidelines and Manual in the instant case), I humbly submit that the Interpretation Act applies with full force.

In practical terms, this means that the Forms prescribed by INEC’s Guidelines and Manual, such as Forms EC8A, EC8A(I), and EC25B (where ballot papers are listed under Serial No. 2) – and, indeed, the entire Guidelines and Manuals – are not mandatory, and a party ought not to be penalised if he or she mixes them up – or even fails to either depend on or refer to them by those monikers in his/her pleadings or evidence. The same goes for the ballot papers, which proved to be Governor Yusuf’s undoing. 

If (as is clearly the case), the copies of such papers which were tendered at the Tribunal were certified by INEC, does that not cure any antecedent defects therein – such as the purported absence of date, etc? What is the intention behind that provision of the Manual (and even Section 63(1) of the Electoral Act)?. Is it not for purposes of validation? Is that requirement not met  by their subsequent certification as aforesaid? Can INEC retroactively repudiate the affected ballot papers, having previously affirmed their regularity through certification as aforesaid? Would that not be approbating and reprobating? Can INEC do that? Is the rejection of the papers, in the circumstances, not a triumph of form over substance?. Does equity not look at the substance, and not the form? (Pun intended). Your guess is as good as mine . . . 

Conclusion   

I believe the only question left, is whether the Guidelines and Manual can be saved in any way, without jeopardising the purpose which they were meant to serve. Well, perhaps – maybe if we apply the ut res magis valeat quam pereat canon of statutory construction. This rule obliges the interpreter to adopt a construction which will achieve the manifest purpose of a statute, rather than one which would defeat it. See Black’s Law Dictionary 8th ed. Page 1583. 

However, I believe that the circumstances for the invocation of this rule in respect of the subject Guidelines/Manual are non-existent. This is because, as previously submitted, to accept that INEC’s Chairman alone can authenticate them, would give room for abuse. Power corrupts, it is said, and absolute power corrupts absolutely. Accordingly, the alternative view – that the Guidelines/Manual must be co-executed by, at least, one other INEC Commissioner – is to be preferred. This would strengthen the case for their due authentication, thus, enhancing the fulfilment of the intention of the legislature to achieve free, fair and credible elections. which are conducted in accordance with due process of law.