The seeming lacuna created by the unexpected death of Prince Abubakar Audu, the governorship candidate of the apc in the inconclusive kogi election seems to have left many lawyers second guessing on what should be the way forward. Emma alozie takes a look at the legal views and what could be the way out


The constitution of every country can be likened to the scriptural book of that country. Lawyers describe it as the grund norm on which every other thing stands. It serves as a guide in times of constitutional crisis especially to save a country from implosion.
However, the present scenario that arose as a result of the death of the candidate of the All Progressives Congress, APC in Kogi election has simply exposed the imperfections in the written document called the constitution. Both the 1999 constitution and the Electoral Act 2010 as amended never envisaged a situation where a candidate standing an election would die before the conclusion of that election.
The closest these two documents are in this conflict is section 181 of the 1999 constitution and section 36 of the Electoral Actb2010 as amended.
According to section 181, (1) of the 1999 Constitution says, “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.”
Also, Section 36 (1) says, “If after the time for the delivery of nomination paper and before the 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.”
Lawyers are sharply divided on what should be the way out. While some argue that so long as the election in Kogi was declared inconclusive by the INEC, there was no clear winner and therefore, the running mate to the Late Audu, James Faleke cannot validly assume the ticket. Others have also argued that the only way out is to give the running mate the opportunity because he and the late holder of the ticket had a joint ticket.
Former president of the Nigerian Bar Association (NBA), Olisa Agbakoba has called for fresh elections in the state arguing, ‘’The fact that the candidate is dead, invalidates the ticket. You need to have a person and a party to complete the ticket”, adding that had the candidate been declared winner of the election before his demise, “the deputy would have been elevated to the position of the governor’’.
Similarly, Abdul Mahmud, President of Public Interest Lawyers League (PILL) argues that this is certainly a strange legal territory. According to him,
“The death of Prince Audu, Governorship candidate of the APC in the inconclusive Kogi Governorship Poll, held on Saturday 21st November, 2015, has created serious legal and constitutional conundrum that demands urgent and quick judicial address and resolution.
“We are in a strange legal and constitutional territory. The 1999 Constitution and the Electoral Act 2011 do not envisage the unfortunate circumstances the death of Prince Audu in the middle of a poll foists. Recall that INEC declared the Saturday poll inconclusive, which makes the provisions of Section 181(1) of the Constitution, 1999 inapplicable in the circumstances. Whatever positivist interpretation ( an approach the Supreme Court has adopted in a plethora of authorities) commentariat gives to Section 181(1), the phrase, “ if a person is duly elected as Governor”, couldn’t have availed late Prince Audu were he alive because he didn’t meet the conditions set out in Section 179 (2) of the Constitution, 1999. Or that Prince Audu and Gov Wada did not meet the conditions set out in Section 179(2) (b) of the Constitution as aforesaid. And it was for this reason that INEC declared the Saturday poll inconclusive and ordered supplementary poll for 91 polling units. Our view, here, however, is that any positivist interpretation that seeks to clothe the APC with what S.181(1) does not avail it is to inflict violence on the Constitution. Since we are in a strange legal and constitutional territory, no inference can be drawn from Boni Haruna’s case to fit the present circumstances because the facts are not similar.
“As it stands, what should serve as the icebreaker of this seemingly intractable legal and constitutional logjam is the interpretation the court places on Section 36(1) and Section 33 of the Electoral Act, 2011. Our sense, here, is that in resolving the conundrum and breaking the logjam, our court cannot go beyond the purview of Section 36(1) of the Electoral Act, which deals with the death of a candidate and Section 33 of the Electoral Act which sets out the right of a political party to substitute its candidate who has withdrawn his candidacy or has died. The questions our court must address itself to therefore are: 1) What nature of poll does Section 36(1) envisage- fresh election, re-run, or bye-election? 2) Does the INEC-ordered “supplementary poll” fall within the purview of this section? 3) What does the phrase, “dies before the poll” mean?
“Our view is that since Section 36(1) does not define the character of the poll or places a nomenclature on the poll, the liberal interpretation is that it envisages the poll expected to be conducted in the 91 polling units as announced by INEC in the immediate aftermath of the Saturday poll. Therefore, it can plausibly be held that Prince Audu died before the expected poll and INEC is thus empowered by the Act to countermand the poll and fix a date for the poll within 14 days. If this position is correct, and we think it is, APC is thus empowered by Section 33 to substitute its dead candidate. It is needless to conduct fresh party primary in the circumstances.”
However, Festus Keyam, chieftain of the APC and human rights lawyer strongly believes that there is no lacuna in the constitution as to who takes over. He argues that the most sensible thing to do is to handover the ticket to Audu’s running mate.
“My simple position is that the Kogi situation fits more into section 181(1) of the 1999 Constitution (as amended) and as such James Abiodun Faleke automatically becomes the governorship candidate of the APC. This is because even though the election in inconclusive, votes have been counted and allocated to Parties and candidates. As a result the joint ticket of Audu/ Faleke has acquired some votes already. James Abiodun Faleke is as much entitled to those votes already counted as much as the late Abubakar Audu. He has a right to cling to those votes going into the supplementary election.
“There is only one problem, though. Who nominates Faleke’s deputy? Unlike section 181(1) of the 1999 Constitution, he cannot approach the House of Assembly of the state to approve a nomination by him of a deputy. This is because, in reality, he is not duly elected yet. Therefore it is only reasonable to conclude that it is APC (Faleke’s political party) that should submit the name of a fresh Deputy Governorship candidate to INEC for the supplementary election. This is the only position in this situation that accords with reason and good sense,” Keyamo submitted.
Still arguing along the line of Keyamo, Jiti Ogunye, a constitutional lawyer contends that the best thing is not for fresh election, rather for the Independent National Electoral Commission, INEC to conclude the inconclusive election and declare a winner.
“The way forward is that the election will be concluded and a winner will be declared. One can hastily opine that the election will have to be cancelled because Audu, who was a leading candidate, is dead and that the election be conducted afresh.
“But Audu and Wada are not the only candidates in the election. The parties that were involved are more than the APC and the PDP and by law; no governorship candidate can emerge without a deputy governorship candidate. It is a joint ticket and the party is also involved and that is why in an election petition challenging an election, the candidate and the party can sue.
“For instance, in Ekiti state, Fayemi said he has accepted the result of the election but the APC said no and when to the tribunal. There is a shared destiny between the party, the deputy governorship candidate and the governorship candidate.
“He didn’t die on the eve of the election to warrant a postponement because the Electoral Act and the constitution allow for the postponement of election if the candidate of a political party dies and provides for the substitution of a candidate,” he argued.
“But in this case, the election has been conducted, certain results have emerged, some results have been cancelled and INEC has declared a supplementary election.
“Because it is not given that if the supplementary election will be conducted, the APC and Audu win because the reason INEC gave for not declaring the result and planning to have a supplementary election is that the number of cancelled votes, put at over 49,000 exceeds the margin of votes between the two leading candidates such that it would affect the outcome of the election.
“So it would be reductionist to assume that if the supplementary election were to be conducted, Audu would win. If Wada were to win, what would happen? Would we still say the election should be cancelled?
“The point is that although the election has not been concluded, if you look at what happened in Adamawa state in 1999 when Atiku Abubakar was elected a governor and thereafter, Obasanjo picked him as a vice presidential candidate thereby making his position vacant which resulted in a legal battle.
“The Supreme Court in that case held that it the deputy governor-elect will step into Atiku’s position and that no new election was required. INEC in that instance was arguing that the governor-elect was not dead but was no longer available and the Supreme Court countered that argument,” Mr Ogunye said.
With the seeming confusion amongst legal eggheads on what should be INEC’s most appropriate move, there are those who believe that the burden should be transferred back to the Supreme Court to untie this legal knot not envisaged by both the framers of the 1999 constitution and the Electoral Act 2010 as amended.

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