The political logjam in Kogi State, last Sunday, was accentuated, last week, by the death of the APC governorship candidate. OKECHUKWU JOMBO, writes that INEC’s decision to conduct a supplementary election in the state with APC nominating a replacement for late Abubakar Audu, has raised more political and legal questions than answers
While Nigerians are still in shock over the demise of former Kogi State Governor Prince Abubakar Audu, who was coasting home in the recently held Kogi State gubernatorial election, they are more shocked by the decision of the Independent National Electoral Commission, INEC, that the election should continue with the All progressive congress, APC, replacing him with any candidate of their choice.
First to express shock was the Peoples Democratic Party, PDP, who through its National Publicity Secretary, Chief Olisa Metuh, called on INEC to rather declare their candidate the current Kogi State governor, Idris Wada, winner of the election or meet them in court.
The PDP has also called for the exclusion of the APC from the supplementary election which has been fixed for December 5.
The party made this known in a communiqué issued at the end of its national caucus meeting in Abuja.
The PDP insisted that following the death of Abubakar Audu, the APC candidate, the party has legally ‘crashed out’ from the race.
INEC had declared the poll as inconclusive due to cancellation of election in 91 polling units in 18 local government areas and order for a rerun.
The apex electoral body added that supplementary election would be held in units where election was cancelled and had given the APC the opportunity to replace Audu with another candidate before December 5.
The move by the APC has reportedly irked PDP which condemned the electoral body’s position, stating that no known law or constitutional provision allowed for the substituting of candidates, once the ballot process has commenced.
The party threatened to challenge INEC’s decision in the court.
“The PDP completely rejects the decision of INEC in yielding to the unlawful prompting of a clearly partisan Attorney General of the Federation, AGF, Mallam Abubakar Malami, to allow APC to substitute a candidate in the middle of an election, even when such has no place in the Constitution and the Electoral Act.
“With the unfortunate death of Prince Abubakar Audu, the APC has no valid candidate in the election, leaving INEC with no other lawful option than to declare the PDP candidate, Capt. Idris Wada, as the winner of the election,” the party disclosed.
Even Peoples Progressive Alliance, PPA, one of the political parties that contested in the election, thinks otherwise, as according to the chairman of the party, Chief Peter Ameh, only a fresh election is good enough and not continuation as INEC is insisting.
While others are still disagreeing with INECs decision, there are strong indications that Alhaji Yahaya Bello, the runner up in the All Progressives Congress, APC, governorship primaries last month, will likely be nominated as the party’s candidate in the Kogi State supplementary polls slated for next week.
However, this contradicts the APC national chairman, John Odigie-Oyegun’s, remarks, who had earlier suggested in a statement that the party will organise new primaries to pick a replacement for Prince Abubakar Audu who died on Sunday, November 22, shortly after the election was declared inconclusive.
Days after Audu’s death was made public, the INEC handed APC a deadline of December 1, to nominate a replacement for Audu.
The party leaders in the second school of thoughts believe it is in line with the letter of the Electoral Act, which says a party would be allowed to make a substitution if its candidate dies.
These APC leaders also kicked against the appointment of James Faleke, Audu’s running mate, as the party’s substitute candidate because he did not contest in the primaries.
It was also gathered that Faleke is a Lagosian of Kogi ancestry who served as local government chairman in Lagos and is currently serving as House of Representative member for Ikeja federal constituency.
Twenty -seven aspirants contested the APC primary elections in Kogi with late Prince Audu scoring 1,109 votes to emerge victorious.
Other aspirants were Alhaji Yahaya Bello, 703 votes; Senator Nurudeen Abatemi Usman, 400, Sanusi Abubakar, 309, Air Vice Marshal Saliu Atawodi, 183, James Ocholi, 90, Olusola Olumoroti, 58, Suleiman Baba Ali, 28, Rotimi Obadofin,16, Dr Tim Nda Diche, 13, and Abdullahi Suleiman, 11, Clarence Olafemi, the former acting governor of Kogi State,7, Senator Yahaya Ugbane, 8, Yakeen Abdullahi, 8, Idris Danjuma, 5, and Col. Ahmed Usman,6.
In practice, whoever APC nominates has already become the Governor of Kogi State since PDP’s candidate, Governor Idris Wada, cannot possibly close the gap in the supplementary election, hence the high stakes.
The question now is, what will be the outcome if APC goes ahead to nominate a replacement for Audu? Will the other parties go to court and what will the court rule?
Since the unfortunate incident, many lawyers have expressed different opinions on the matter, especially as the constitution is silent on the matter.
A lawyer, Barrister Asiyanbi Olajide, said: “The death of Audu Abubakar comes with some constitutional questions. What happens to the inconclusive elections? Who becomes the APC’s governorship candidate in the re-run elections in the affected areas. Will a new election be ordered in Kogi State? Many more questions, yet few answers.
According to him “The scenario would have been different if the results of the election were declared before the death of Audu Abubakar. In that case, Section 181(1) of the Constitution of the Federal Republic of Nigeria would have been invoked. ‘Section 181. (1) If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy governor shall be sworn in as governor and he shall nominate a new deputy-governor who shall be appointed by the governor with the approval of a simple majority of the House of Assembly of the state.’
‘’But the scenario in Kogi is different. Nobody has been declared the winner yet. Therein lies the constitutional/electoral challenge. But it is not beyond resolution.
‘’This is where Section 33 of the Electoral Act (as amended) 2010 can be invoked. It provides ‘Section 33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of this Act, except in the case of death or withdrawal by the candidate.’
”Section 33 of the Electoral Act is wide enough to accommodate the scenario in Kogi State, where a candidate dies where the election is declared inconclusive. This is because Section 33 of the Electoral Act is not limited to pre-election substitution of a candidate. Pre-election substitution of a candidate is specifically provided for in Section 36(1) of the Electoral Act. ‘Section 36(1). If after the time for the delivery of nomination paper and before commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner or the Resident Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14 days’. The postponement of the election as contemplated under Section 36 of the Electoral Act is to allow the party to present another candidate.
”However, if the candidate dies where the election is declared inconclusive as in Kogi, the party will be allowed to substitute the death candidate for the re-run election in the affected areas. This is the intention of Section 33 of the Electoral Act. Limiting Section 33 of the Electoral Act will be restricting its intention and deviating from the purposive rule of interpretation.
The party’s garnered votes in the inconclusive election remain valid. This is because the electorate voted for the party not the candidate.
In the end, no constitutional/electoral lacuna exists. The APC should invoke the provisions of Section 33 of the Electoral Act and substitute Audu Abubakar with another candidate, while their votes remain intact as they go in for the re-run elections in the affected areas, declared inconclusive.”
Ibadan-based lawyer, Sharafadeen Abiodun Alli, said:”INEC should approach the Attorney General of the Federation, who may quickly seek interpretation from the Supreme Court as our laws; both the Constitution and Electoral Act, never envisaged the present situation. To do otherwise, any party who feels aggrieved would go to court or tribunal, making it one of the issues for determination.”
Oluwaseyi Leigh, a lecturer at the Olabisi Onabanjo University, Ago-Iwoye, Ogun State,”the nearest solution to the seeming constitutional conundrum is Section 36 (1) of the Electoral Act, 2010 (as amended). The section relates to Death of a Candidate before the Commencement of a Poll.
In my own view, an inconclusive election is to all intents and purposes, akin to no election at all, even if only in those affected areas. Now, with the interposition of death, the equation becomes skewed. Why do I say this? The rerun of the election is now in the future and Audu’s death is now tantamount to the death of a nominated candidate before the commencement of the poll (in this case, the rerun), even in those selected areas for the rerun.
”But in the light of the exigency of death, the rerun will have to be ordered in the whole state. This is because if the party decides to field another candidate apart from the running mate of the deceased at the election, or even if the running mate is fielded at the election, both of them will have to choose a new running mate, which makes them an entirely new set of candidates who are new to the rerun arrangement and therefore cannot take the benefit of what went before.
Even though political parties are, for now, the constitutionally recognised platforms upon which candidates can stand for election and political parties are clothed with the “perpetual succession” fiction of their existence, yet, only natural persons subject to natural and human foibles can be candidates, and where death occurs, the succeeding candidate(s) will also need to undergo the motions undertaken by the departed.
It is an instance of a situation known to lawyers where a “cause of action” dies with a party to the action. Under section 36 earlier referred to, INEC will have to appoint some other convenient date for the election within 14 days.”
With all the arguments, no one for sure can say what will happen at the end but the Supreme Court.