The Doctrine of Necessity in the unusual scenario in Kogi State favors the supremacy of party over individual-Femi Falana Constitutional Lawyer.
The opinion of Femi Falana is professional but very subjective. While some school of thoughts may agree with him that the scenario in Kogi fits the description in Section 181(1) of 1999 Constitution, I disagree. I will like to pitch my tent with Section 33 of 2000 Constitution.
At this point since the election has been declared inconclusive, and no winner has truly emerged, Section 181(1) cannot apply. The Doctrine of Necessity in the unusual scenario in Kogi State favors the supremacy of party over individual. Moreover, during election, it is assumed(in the eyes of the law) that electorates are voting for the party and not necessarily the individual. This informs the wisdom why pictures of the candidates are not shown on the ballot.
So if the party(APC) chooses to bring the first Runners up in the guber primary i.e 40 yr Billionaire, Alhaji Yahaya Bello to the fray then it has not done something wrong.
The Kogi scenario presents very serious constitutional lacuna, novel legal gymnastics and mental headaches.-Prof.Nnamdi Obiaraeri Legal Luminary!
Legal implications of Audu Abubakar’s Death. – Festus Keyamo
The reported death today, Sunday, November 22nd, 2015, of the APC candidate in the Kogi State Governorship elections, Prince Abubakar Audu, is extremely shocking and sad. I would like to express my condolences to the entire family of Audu and to the people of Kogi State.
However, the real question agitating the minds of everybody is the legal implication regarding the inconclusive Governorship elections at the time of his demise. To state it correctly he was said to have died AFTER the announcement of the results by INEC and after INEC had declared the elections inconclusive. Admittedly, this is a strange and novel constitutional scenario. It has never happened in our constitutional history to the extent that when an election has been partially conducted (and not before or after the elections) a candidate dies. What then happens?
This is a hybrid situation between what happened in the case of Atiku Abubakar/Boni Haruna in 1999 and the provision of section 33 of the Electoral Act, 2010.
In the case of Atiku Abubakar/Boni Haruna [which is now a clear constitutional provision of section 181(1) of the 1999 Constitution (as amended)] the Supreme Court held, in effect, that “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”.
In the case of section 33 of the Electoral Act 2010 it provides, in effect, that if a person has been duly nominated as a candidate of his party and he dies before the election then the political party has the right to replace him with another candidate and not necessarily the Deputy Governorship candidate.
Now, does the Kogi situation fit into section 181(1) of the Constitution as quoted above or section 33 of the Electoral Act mentioned above?
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.
According to a constitutional lawyer, options available to INEC are:
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(1) Declare Abubakar Audu as the winner of the elections and the Deputy Governor is subsequently sworn in.
The first option available to INEC is to conclude the elections at a later date with Abubakar Audu as the Candidate of the APC and if as I expect, he wins the election, INEC will then declare him the winner and his Deputy Governor will be subsequently sworn in as Governor to comply with the Constitution.
This view is supported by the judicial attitude that leans towards party consideration rather than the individual candidate. The courts have ruled several times that it is the party that is voted for, and not the candidate. If therefore a party is on the verge of winning an election, handing over the victory to the party in 2nd place due to the death of the winning party’s flag bearer will do injustice to that principle.
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(2) Cancel the elections and conduct fresh elections
The second and probably safer option is to cancel the entire election and conduct fresh elections in 90 days or as soon as practicable. Considering that the tenure of the current governor expires on January 28, which is less than 90 days away, it means that if INEC goes for this option, the Speaker of the Kogi Assembly will be sworn in as Acting Governor. This option is considered safer so as not to create the precedent of conducting elections with a dead candidate on the ballot.
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(3) Declare Captain Wada as the winner of the elections.
The last option is to consider the votes cast for Abubakar Audu as frustrated by the event of his unfortunate death and declare the second person, likely Captain Wada as the winner. This option which is without any justification is workable only in the unlikely event that Wada also won ¼ of the total votes in 2/3rd of the Local Government Areas in Kogi State.
"...Section 181 of the 1999 Constitution allows the Deputy of a duly elected Governor to be sworn in as Governor if the Governor dies before he is sworn into office. . . .But if the person dies before he is duly elected or while the election is inconlusive the 1st runner up at his party primary election, 40-year billionaire politician, Alhaji Yahaya Bello becomes the candidate of the party. . . By virtue of this INEC is expected to invite Alhaji Yahaya Bello to contest against PDP's Captain Wada"---Bunmni Awoyemi
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