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.”
Culled from Vanguard