With the death of Abubakar Audu, the candidate of the All
Progressives Congress in Saturday’s governorship election in Kogi State,
a new legal battle may have ensued on the fate of the election.
Mr. Audu was leading his closest challenger and incumbent governor, Idris Wada of the Peoples Democratic Party, by 41,353 votes.
The Independent National Electoral Commission, however, declared the
election inconclusive as possible votes from the 91 cancelled polling
units (49,953) is higher than the margin between the two leading
candidates.
Mr. Audu would have eventually emerge winner after elections are held
in the 91 polling units as the PDP candidate would have needed 100 per
cent turnout and about all the votes for his party to emerge victor.
However, before he could celebrate his potential victory, the APC
candidate died, throwing the country into a unique constitutional
crisis.
Perhaps the closest constitutional section that relates to such a
scenario is Section 181 which states that (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; and (2) Where the persons duly elected
as Governor and Deputy Governor of a State die or are for any reason
unable to assume office before the inauguration of the house of
Assembly, the Independent National Electoral Commission shall
immediately conduct an election for a Governor and Deputy Governor of
the State.
However, as stated by Abdul Mahmud, a constitutional lawyer, the section only refers to when a person is ‘duly elected’.
With INEC declaring on Sunday that the Kogi election was
inconclusive, it is not clear if Mr. Audu could be considered ‘duly
elected’.
“We are in a strange legal territory! The 1999 Constitution and the
Electoral Act do not envisage the unfortunate circumstance that Audu’s
death foists. INEC had declared Saturday poll inconclusive, which makes
S.181(1) CFRN 1999 irrelevant,” Mr. Mahmud said.
“In my opinion, a fresh poll is not necessary. Section 36(1) of the
Electoral Act 2011 empowers INEC to countermand (cancel) the poll for
the 91 polling units it had earlier announced and fix a new date for the
poll within 14 days. The effect of this section is that the power of
countermand can only be exercised on the death of a candidate and after
nomination paper has been filed.
“The poll for the 91 polling units is not a fresh poll; it is the
same November 21 poll, in my opinion. So, what happens to the APC?
Section 33 of the Electoral Act 2011 allows the party to substitute the
dead candidate. Under this section, substitution can only be allowed
when a candidate dies or withdraws.”
Section 36 (1) of the Electoral Act, to which Mr. Mahmud referred, talks about the death of a candidate before an election.
“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.”
However, in the current Kogi case, the poll already commenced and was almost concluded.
Another constitutional lawyer, Jiti Ogunye, called on INEC to
continue with the supplementary election in the state and declare a
winner.
He insisted that it would be hasty for anybody to call for the cancellation of the election because of the demise of Mr. Audu.
He said, “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 argued that Mr. Audu passed on when the election had been
conducted and not on the eve of the election which could have warranted
postponement as indicated in law.
“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.
“In the present case, since the winner has not been declared and the
certificate of return has not been issued, Mr. Ogunye argued that there
is no clear difference with what happened in Adamawa state.
“The election can’t be cancelled at this time because Audu is dead.
He didn’t die on the eve of the election but when the election was
almost concluded. What is called for is a sober acceptance of the law
without drama and insistence that there is going to be a constitutional
crisis,” he cautioned.
However, Sebastian Hon, a Senior Advocate of Nigeria, SAN, said he
would not comment on the matter since he is a party to a similar case at
the Election Appeal Tribunal in Jos.
“I wouldn’t want to comment on the issue and the reason is that I am
involved in the Plateau state governorship election petition,” said Mr.
Hon.
“I am representing the governor and the PDP candidate (who is
challenging the governor’s election also died). It is a similar issue
and I wouldn’t want to commit myself anyhow.
“In spite of the death of Pajok, the PDP has appealed and so it is not fair for me to talk on the matter as it were.”
Other commentators have spoken of the possibility of relying on the
Supreme Court ruling that made Rotimi Amaechi the Rivers State Governor
in 2007 wherein Nigeria’s apex court ruled that it was the PDP that was
presented on the ballot and that won the election; and that having
declared Mr. Amaechi the true candidate of the PDP, he should be sworn
in as governor.
Mr. Amaechi subsequently replaced Celestine Omehia who had occupied
the seat having been the one the PDP initially recognised as its
candidate in the election.
As at the time of publishing this report, INEC, the APC, and the PDP
were yet to offer any opinion on what they believe should be the fate of
the Kogi governorship election held on Saturday.
President of Nigerians in Diaspora Organisation (NIDO) in United
States, Chief Obed Monago has said the December deadline given by
President Muhammadu Buhari to flush out Boko Haram terrorists from
Nigeria is not feasible.
