of the All Progressives Congress (APC) in Kogi State, on Sunday, 22nd
November, 2015 has undoubtedly ignited a constitutional crisis.
Among the issues arising from the death of Prince Audu include,
whether the running mate to Prince Audu and the APC deputy
governorship candidate can assume the position and status of the
deceased as the candidate of the APC; if the question in 1 above is
answered in the negative, can the APC substitute the deceased as its
governorship candidate; and whether it is legally permissible in the
circumstance for the Independent National Electoral Commission (INEC)
to cancel the inconclusive election of Saturday, 21st November, 2015
and conduct a fresh throughout Kogi State.
This is unarguably a novel case. This is the first time in the course
of a democratic transition that a validly nominated candidate of a
political party in Nigeria will die after an inconclusive election but
before and without participating in the supplementary election. It is
unprecedented.
On issue one, there is no argument about the fact that a person
nominated as running mate with a Governor or Governor- Elect who was
DULY ELECTED has the constitutional right of succession in the event
of death, permanent incapacity, resignation or removal of the Governor
or Governor-Elect. This proposition is well entrenched in both
judicial and statutory authorities.
However, there are only two categories of persons/running mates that
are entitled to this right of succession.
The first category is a Deputy Governor elected on a joint ticket with
the Governor. Section
191 of the Constitution provides as follows:
"The Deputy Governor of a State shall hold the office of Governor of
the State if the office of Governor becomes vacant by reason of death,
resignation, impeachment, permanent incapacity or removal of the
Governor from office for any other reason in accordance with section
188 or 189 of the Constitution."
There are avalanche of examples of Deputy Governors in Nigeria who had
automatically assumed the office of Governor following the death or
impeachment of their governors'.
The second category arises where a person DULY ELECTED as the Governor
dies before subscribing the oath of allegiance and oath of office.
That is, where a Governor-Elect dies before his swearing in.
In such situation the person elected with him as Deputy Governor (his
running mate/deputy governor-elect) shall be sworn in as the governor.
The authority for this is Section 181 (1) of the 1999 Constitution.
The relevant question is whether any of the two categories above is
applicable to the present case in Kogi State. The answer is clearly in
the negative. The reasons are obvious.
Section 179 of the 1999 Constitution stipulates two mandatory
conditions that a candidate must satisfy before he/she is deemed duly
elected.
Firstly, the candidate must score the highest votes cast at the election.
Secondly, the candidate must obtain not less than one quarter of the
votes cast at the election in each of at least two-thirds of all the
local government areas in the State.
Based on the results declared by the Returning Officer, Emmanuel Kucha
(Vice-Chancellor of the University of Agriculture, Makurdi), Abubakar
Audu of the APC scored 240,867 while Idris Wada of the Peoples
Democratic Party (PDP) scored 199,514 votes.
According to Mr. Kucha, the margin of votes between Messrs Audu and
Wada is 41,353. And that the election was inconclusive because the
total number of registered voters in 91 polling units, in 18 local
government areas, where election was cancelled is 49,953.
That figure is higher than the 41,353 votes with which Mr. Audu is
ahead of Mr. Idris Wada of the Peoples Democratic Party (PDP).
The returning officer in compliance with Sections 26 and 53 of the
Electoral Act refused to make a return until supplementary election is
held in the areas where election were cancelled.
INEC is not allowed by law to make a return if the number of
registered voters in the areas that elections have either been
postponed or cancelled can affect the outcome of the election. 41, 353
cannot be greater than 49, 953. Whether it is possible for Mr. Wada to
garner is a political question.
The law does not operate based on political calculations and
conjectures. Only a supplementary election can legally determine the
ultimate winner of the Kogi State governorship election. It would have
been wrong for INEC to declare a winner as canvassed by some
commentators without allowing the 49, 953 registered voters in the 91
polling units to exercise their constitutional right of franchise.
That would have afforded the aggrieved candidates the right to have
the election nullified by the Election Tribunal.
From the foregoing, the deceased APC candidate Abubakar Audu was not
duly elected as the Governor of Kogi State in the governorship
election held on Saturday 21st November, 2015. Therefore his running
mate cannot be sworn in as the Governor. This argument has become an
academic exercise since INEC has already declared the election
inconclusive and indicated its intention to conduct supplementary
governorship election in the 91 polling units where elections were
cancelled.
Under the current constitutional regime, a Governor, Deputy Governor,
Governor-Elect or Deputy Governor-Elect cannot emerge through an
inconclusive election. The summary on issue one is that Section 181
(1) and 191 of the Constitution are not applicable to Hon. James
Abiodun Faleke, the running mate to the late Prince Abubakar Audu. He
cannot be sworn in as the Governor of Kogi State since Prince Audu had
not been elected Governor before his death owing to the fact that the
election is inconclusive for the reasons stated earlier.
On the second issue, the law on substitution of candidates has evolved
over the years. A brief history is apposite.
Under the repealed 2002 Electoral Act, the right of political parties
to substitute candidates was not restricted.
This led to series of litigation candidature of political parties. By
Section 34 (2) of the repealed 2006 Electoral Act, substitution of
candidates by political parties was allowable only if a political
party gives "congent and "verifiable reason" for seeking to substitute
a candidate whose name had been submitted to INEC. The cases of
Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 and Ugwu v. Ararume
(2007) 12 NWLR (Pt. l048) 365 were principally decided by the Supreme
Court based on the failure of the political party -the PDP, to give
cogent and verifiable reason for seeking to substitute its candidates
in the 2007 governorship elections in Rivers and Imo States,
respectively.
However, the current position of the law on substitution or change of
candidate is encapsulated in Section 33 of the Electoral Act 2010 (as
amended). It provides as follows:
"A political party shall not be allowed to change or substitute its
candidate whose name has been submitted pursuant to section 32 of this
Act except in the case of DEATH or withdrawal by the candidate."
(capitalized for emphasis).
Also of relevance to the issue of substitution of candidate by reason
of death is Section 36 (1) of the Electoral Act. It states thus:
"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."
The combined effect of Sections 33 and 36 (1) reproduced supra offers
a remedy to the constitutional crisis arising from the death of Mr.
Abubakar Audu. It is humbly submitted that the APC has the right in
law to substitute its deceased governorship candidate in Kogi State.
Audu was supposed to participate in the supplementary poll since the
first poll did not result in the return of any candidate. Any
interpretation of the expression "the poll in which the deceased
candidate was to participate" that excludes 'supplementary poll' will
lead to absurdity and injustice.
Death is a natural occurrence. The death of a candidate is beyond the
control of a political party. The law recognises the right of a
political party to sponsor a candidate for election and equally
provides for remedies where a candidate dies either before or after
the conclusion of polls.
Where a candidate dies before the commencement of polls, Section 36
(1) of the Electoral Act allows the political party that sponsored the
deceased candidate to substitute him/her. But where the death occurs
after the conclusion of polls but before the deceased candidate
subscribes the oath of allegiance and oath of office, Section 181 (1)
of the Constitution mandates the running the running mate of the
deceased candidate to be sworn in as the governor.
I will now address the last issue, that is, whether INEC in the
circumstance can countermand (cancel) the Kogi State governorship
election held on Saturday, 21st November, 2015.
The power of INEC with respect to cancellation of election is very
limited. The law allows INEC to postpone or cancel election in only
two situations, namely: postponement due to violence, insecurity,
natural disasters or other emergencies; and cancellation due to over
voting.
There is no provision in all of the 320 sections of the Constitution
or the 158 sections of the Electoral Act that empowers INEC to
nullify, cancel or void either a concluded election or an inconclusive
election. The death of a candidate of a political party does not
confer any power on INEC to set aside either a concluded or an
inconclusive election. The law has already catered for such
eventuality by allowing for the substitution of the deceased candidate
in the case of an inconclusive election.
Like the Rock of Gibraltar, the inconclusive election held on Saturday, 21st
November, 2015 in Kogi State cannot be altered or interfered with by
INEC. The Supreme Court had settled in the Amaechi's case supra that
votes casted at an election stand to the credit of political parties
and not the candidates.
Although Mr. Abubakar Audu has died, the party that sponsored him -
the APC, is still alive. The votes belongs to the APC and not the
deceased. That is the position of the law in Nigeria today.
Although the Kogi State governorship election is inconclusive and
Section 36 (1) of the Electoral Act allows for substitution if the
death occurs before commencement of poll, it is humbly submitted that
the word "poll" in this context includes supplementary poll. The
rights that accrues to a political party that participated in an
inconclusive election cannot be extinguished merely because of the
death of its candidate as where there is a right there must be a
remedy.
A contrary interpretation will mean that INEC will have to cancel the
entire election in Kogi State and conduct fresh election. Such
interpretation will do violence to the letters and spirit of Sections
33 and 36 (1) of the Electoral Act and occasion a miscarriage of
justice. That cannot be the intendment of the law. In any event, INEC
does not have the power to do so for the reasons stated earlier.
In conclusion, the APC should immediately substitute its deceased
governorship candidate with another person and communicate same to
INEC in writing.
INEC is advised to proceed with the supplementary elections in the
outstanding 91 polling units. The supplementary elections must be held
within 14 days from Sunday, 22nd November, 2015 in line with Section
36 (1) of the Electoral Act after which the candidate that scores the
highest overall votes should be returned elected.
Effiong is a legal practitioner (inibehe.effiong@gmail.com)
-DailyTrust
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