Adegboruwa prays court to order fresh Kogi election

Olanipekun wants Faleke declared winner, writes INEC, APC

LAGOS Lawyer and human rights activist, Ebun-Olu Adegboruwa, yesterday filed an action at the Federal High Court, Lagos, praying the court to order INEC to conduct fresh elections to determine the Kogi State Governorship contest.

In a suit filed against the Attorney-General of the Federation (AFG), the Independent National Electoral Commission (INEC), the People’s Democratic Party (PDP) and the All Progressive Congress (APC), the lawyer is contending that under section 181(2) of the 1999 Constitution, whatever makes it impossible for the winner of an election to take benefit of his mandate, whether by reason of death, illness or otherwise, the constitutional dictate is to conduct fresh elections.

The plaintiff insists that the Constitution does not recognise any arrangement whereby votes will be preserved in memory of a dead candidate and then subsequently transferred to another candidate newly nominated and who was not part of the previous election that has been declared inconclusive.

In particular, the plaintiff is challenging the directive of the AGF and INEC, to the APC, to conduct fresh primaries to substitute the late Prince Abubakar Audu.

The lawyer seeks the court’s determination of the following legal issues: “Whether late Prince Abubakar Audu, being the governorship candidate of the 4th defendant in Kogi gubernatorial elections held on the 21st of November, was duly elected in accordance with Section 179 (2) of the 1999 Constitution of the Federal Republic of Nigeria to entitle the All Progressive Congress to substitute him for a supplementary election?

“Whether when a nominated candidate dies in an inconclusive election that is yet to be declared or authenticated by INEC, such an election can still be concluded with a substituted candidate who did not canvass for or was part of the inconclusive election?

“Whether the governorship ticket for the election of a governor in a state is the exclusive preserve of the political party, or a joint ticket of the political party and the candidate nominated such as when the nominated candidate dies in an inconclusive election, the political party will be entitled to nominate another candidate to conclude the said election”.

The plaintiff also wants the court to determine whether when a nominated candidate of a political party dies in an inconclusive election, INEC is entitled to proceed with the said election with liberty to the political party of the dead candidate to substitute him in the said inconclusive election.
He therefore prayed the court to order INEC to conduct fresh election in the state, adding that INEC is not entitled to substitute a dead candidate, nominated for an election that has been declared inconclusive.

The new case, which is Suit No. FHC/L/CS/1786/2015, has not been assigned to a judge for a hearing date.

Meanwhile, the APC governorship running mate to late Abubakar Audu, James Faleke has called on INEC to declare him the winner of the election and urged the party leadership to support the idea.

Faleke’s position is contained in a two separate letters dated November 26, which he wrote to the National Chairman of the party, Chief John Oyegun and chairman of INEC, Prof. Mahmood Yakubu through his counsel, Chief Wole Olanipekun (SAN).

Both the national secretary and legal adviser of the party were copied.

He pointed out that the election was peacefully conducted and results announced all the way from the polling booths to the local governments and was followed through by the media.

According to him, despite all those, INEC “curiously announced that the election was inconclusive, and that a re-run election would hold in some polling units on a day and date yet to be announced.”

He maintained that the election to the office of governor is regulated by the provisions of sections 178 and 179 of the 1999 Constitution (as amended), while nomination to the office is governed by section 187 of the same Constitution.

“Our client believes that election to the office of governor of Kogi State had been conducted and concluded in accordance with the provisions of the Constitution. While our client and all well meaning Nigerians are saddened by the sudden death of Prince Abubakar Audu, who was the Principal to our client at the election, the fact remains that both of them shared a joint ticket, and by the imperatives of section 187 (1) of the Constitution, the late Audu could not have been validly nominated as a candidate for the office of Governor on the plaform of the APC without our client being jointly nominated with him, as his ‘associate for the running for the office of governor’. Under the same section 187, our client was deemed to have been duly elected if his political party qua Principal won the election.

“With very much respect to INEC, it had no reason whatsoever and howsoever for declaring the election as inconclusive. We dare say that the reasons given by INEC are alien to the Constitution and, therefore, unconstitutional. Cancellation of election results by INEC cannot be a ground for declaring any election as inconclusive. INEC also has no constitutional or legal power to order the APC to go and conduct a fresh primary election to nominate a candidate for an already concluded election.

“INEC is advertently or inadvertently instigating a political and legal conundrum, which the APC as a party should distance itself from. What the APC should do and insist on is to ask INEC to comply with the letters, spirit, intention and tenor of the Constitution, by not only declaring APC as the winner of the election, but by also declaring our client as the governor-elect. Precedents abound for this proposition and position of our client”, he stated.

Olanipekun argued that in law and logic, no new candidate can inherit or be a beneficiary of the votes already cast, counted and declared by INEC before that candidate was nominated and purpotedly sponsored.

He said: “Assuming without conceding that INEC is even right to order a supplementary election, the votes already cast, counted and declared on November 25, 2015 were votes for the joint constitutional ticket of Prince Audu and our client. Therefore, no new or ‘supplementary’ candidate can hijack, aggregate, appropriate or inherit the said votes. Assuming further, without conceding, that supplementary election in 91 polling units can hold as being suggested by INEC, it is our client who should be the automatic candidate of the party, since APC cannot conduct ‘supplementary primary election’ for the supplementary election in 91 polling units.”

He reminded the party chairman that the APC was leading the PDP with 240, 867 votes, saying the declaration of result by a returning officer is final under section 61(c) of the electoral Act, 2010 and can only be upturned by an Election Tribunal. According to him, section 181 (1) of the Constitution in unmistakable language states that the deputy governor-elect shall take over and be sworn-in in the event of death.

“Arising from the foregoing, our client enjoins the APC not only to support him at actualising the mandate already given to the party under the joint ticket of himself and Audu, but to also distance itself from the ‘Greek gift’ offer being made by INEC, to wit, that it is allowing the APC to conduct a fresh primary election to nominate a candidate for a supplementary election in 91 pooling units, where only about 25, 000 PVC’s are available; whereas the APC is already leading, by the announced results, with over 40, 000 votes”, he submitted, urging the party to look into the matter speedily and act in his clients interest.

In the same manner, Olanipekun advised the INEC to declare his client the winner of the election because its a constitutional imperative. He also cautioned that any attempt to conduct supplementary election would be challenged.

His words: “Mr. Chairman sir, this is a rather simple and straightforward matter, which does not need any delay, foot-dragging or procastination. It is a constitutional imperative. Put in another way, INEC has a bounden duty to declare our client as the winner of the election. Any attempt to conduct any supplementary election in any unit whatsoever and howsoever will amount to INEC breaching and flouting the Constitution, and our client would definitely challenge it.”