The inconclusive governorship election in Kogi

IN the past few days, there has been a cacophony of voices on the analyses of both the Constitution of the Federal Republic Nigeria 1999 (as amended) and the Electoral Act, 2010 (as amended) with regard to what should be done consequent upon the sudden death of Prince Abubakar Audu, the gubernatorial candidate of the All Progressives Congress (APC) while the election continued. A number of respectable analysts lamented the absence of a provision in either the Constitution or in the Electoral Act, 2010 stating what happens if a governorship or any candidate dies when elections are in progress. In view of this omission, they argue and declare that there are lacunae in both documents and that there exists a constitutional crisis.

I beg to disagree with such views. The 1999 Constitution (as amended) in its Section 181 (1) provides that:

“If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and the 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.”

That provision is concerned only with a situation where a governorship election has been pronounced concluded by the Independent National Election Commission (INEC), and a winner has emerged, but before the winning candidate can assume office, he dies or he is otherwise incapacitated either physically or mentally, his Deputy, chosen under the provisions of Section 187 (1) of the Constitution, becomes Governor in his stead. Section 36 (1) of the Electoral Act, 2010 (as amended), on the other hand, stipulates that if, after the delivery of nomination papers but before the commencement of polls, a nominated candidate passes on, the Chairman of INEC or the Resident Electoral Commissioner shall cancel the election and shall appoint some convenient date for the election within 14 days.

Quite clearly, the Constitution deals with what happens after a concluded poll but the candidate dies before he can assume office, whilst Section 36 of the Electoral Act is on what happens if the candidate dies after his name has been submitted to INEC but before the start of the poll.

On Saturday, November 21, 2015, governorship election held in Kogi State. Several political parties fielded gubernatorial candidates in the election, with the People’s Democratic Party (PDP), the ruling party, and the All Progressives Congress (APC), being the major participants therein. At what was thought to be the end of the exercise, the electoral umpire, the Independent National Electoral Commission (INEC) declared the election to be inconclusive by reason of the fact that about 91 polling units, involving about 49,000 voters, would be disenfranchised if the election was declared to be concluded. Prince Abubakar Audu, the APC governorship candidate, was in the lead, with about 41, 000 votes in more than two-thirds of the local governments in the State, thereby fulfilling one of the constitutional requirements for election as Governor of a State (Section 179 (1) (b) of the 1999 Constitution), and would have been declare elected but for INEC’s declaration of the election as inconclusive. INEC’s decision was based on the fact that the margin of lead votes of 41,000 was less than the 49,000 votes expected from the 91 polling units where a re-run election must be conducted.

The argument as to whether INEC was right in declaring the election inconclusive is neither here nor there. The decision of the electoral umpire and its returning officers must be respected. During the election in which he was clearly in the lead, Prince Abubakar Audu, passed on, to the eternal consternation of all Nigerians.

Prince Audu’s sudden death has thrown up a lot of statutory and constitutional questions. So many legal luminaries have wrung their hands in utter frustration about the non-inclusion in either the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or in the Electoral Act, 2010 (as amended) of the death of a candidate during elections. As stated supra, Section 181 of the Constitution deals with a situation in which election has been concluded, but, before the governorship candidate can take and subscribe the Oaths of Allegiance and of Office, he dies, and Section 36 of the Electoral Act is on a governorship candidate who dies before the commencement of the polls. Has the death of Prince Audu, therefore, created a constitutional crisis or has it revealed problematic lacunae in our electoral laws as canvassed everywhere?

In my considered opinion, the Electoral Act, 2010 (as amended) in its Section 33 provides a solution to the seeming problems posed by the sudden death of a governorship candidate. According to that section, “No political party shall 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.” Analysts have focused and dwelt on the main clause of the section, neglecting the subordinate, and more important, adverbial phrase of condition, beginning with “except”: “…except in the case of death or withdrawal by the candidate.” Paraphrased, this provision could read: “Although no party is allowed to change or substitute its candidate after his name and credentials have been sent to INEC, any political party can, however, substitute or change its candidate in the event of death or withdrawal.” In the section quoted above, the operative word is the preposition except. A party can only change or substitute its candidate if such a candidate dies or withdraws. And that change or substitution can only be during the election because section 36 of the Electoral Act, 2010 (as amended) on death before the commencement of the election, cannot be a repetition of Section 33 of the Electoral Act, neither could Section 33 of the Electoral Act be repeating the provisions of Section 181 of the 1999 Constitution with regard to the death of a governorship candidate after a concluded poll. Section 33 of the Electoral Act, 2010, can only be on what happens if the death of a candidate occurs during, not before the commencement, and certainly not after, an election, covered by sections 36 (1) of the Electoral Act, 2010 (as amended) and 181 (1) of the 1999 Constitution!

Quite clearly, the Electoral Act in its Section 33 anticipates such a happening as the death of a candidate during an election, contrary to popular opinion.

You can use any of the canons of statutory interpretation – literal rule, golden rule, ejusdem generis, etc – the conclusion would still be inevitable that the APC has the right to substitute the deceased candidate for another candidate. All other persons/parties are bereft of any such right under the Electoral Act. The APC could, of its own volition, and not under duress, have chosen Hon. James Abiodun Faleke, Audu’s running mate, or any other candidate of its choice, to replace Prince Audu.

Neither the Constitution nor the Electoral Act, 2010 compels a political party to replace a deceased candidate with any particular person during any or inconclusive election. If INEC had pronounced the election concluded and a winner had emerged, then Section 181 of the 1999 Constitution (as amended) would have operated, and the deputy governor would have replaced the deceased governor-elect. As for Idris Wada, the questions to ask and answer are: as at the time Prince Audu died, was the election concluded? Had he, at that time, satisfied the almighty provisions of Section 179 (2) (a) (b) of the 1999 Constitution? How can he wish away the provisions of Section 33 of the Electoral Act?

In view of the foregoing analysis, I am persuaded that both INEC and the Hon. Attorney-General and Minister of Justice were right in their judgment.
• Akiri, a lawyer, wrote from Lagos.