LAWYERS across the country, yesterday, continued to
proffer suggestions on how the country could wriggle out
of the constitutional logjam occasioned by the death of
Prince Abubakar Audu, the All Progressives Congress
(APC) governorship candidate in Kogi State.
Audu before his death was leading in the governorship
election held on Saturday with over 40,000 votes and
looked set to emerge as winner later because only 49000
voters are expected to vote in the supplementary
elections to be conducted in 59 polling units.
The Constitution
and Electoral Act
have no
provisions for a
situation where a
leading candidate
dies during an
election.
APC should
replace Audu for
the re-run polls –
Olajide
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.
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 its 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 electorates 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.”
INEC, AGF should approach Supreme Court for
interpretation – Alli
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.”
There should be fresh polls – Leigh
To 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.”
Fresh polls, the only option – Chukwu
Owerri-base Legal Practitioner, Barr Stanley Chukwu, said:
”The present situation arising from the death of Audu, the
APC gubernatorial candidate in Kogi has created an
unprecedented situation not envisaged in the 1999
Constitution of the Federation as Amended. While Section
181 of the Constitution envisaged a situation where if a
Governor elect dies before taking oath of office his deputy
is to take over. Subsection 2 of section 181 provides that
where both the Governor elect and his deputy die before
taking oath of office, that there will be a flesh election.
”The Kogi situation is that the Gubernatorial candidate
died at a time election has not been concluded and
supplementary election is to be conducted so that a
winner would be declared. In this scenario, APC no longer
have a gubernatorial candidate for the supplementary
election. In fact, supplementary election would be a waste
of time. Audu’s running mate cannot step into his shoe.
There is no provision in the Electoral Act or the
Constitution that assigned any role to a running mate
upon the demise of the Gubernatorial candidate before
declaration of winner. The only option is for an a flesh
election to be conducted in which APC will field a
candidate. Again, this is one scenario which our law fail to
envisage and there is now the need to take care of it in
future constitutional amendment.
”The argument that it is the party that stands for election
will not fly when you analogically consider section 181(2).
of the Constitution which orders for fresh election where
both the Governor Elect and Deputy Governor elects die
before taking oath of office. If the Constitution recognises
the party above the candidate, it would have simply
required the Party to field a new Governor-elect and
Deputy Governor elect but instead, the Constitution
required a new election. So in this case, since Audu has
not been declared, his running mate can only be seen and
not reckoned with. The only option now is conducting a
fresh election.”
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