We are not aware of Audu’s death, says INEC

• Meets over extra polls
• Lawyers split on way forward
WITH the Independent National Electoral Commission (INEC) claiming ignorance of the death of Prince Abubakar Audu, the controversy over the Kogi State governorship election deepened yesterday. Audu was the candidate of the All Progressives Congress (APC) in last Saturday’s gubernatorial election in the state.

According to the INEC, though it had heard the news of Audu’s death, it was yet to be officially notified of the development. It is the responsibility of the party to immediately notify the commission about the death of its candidate. While the APC has announced Audu’s passing, it has not formally informed INEC.

The party has also not made any request as to whether to be granted some days to conduct fresh primaries to pick a new candidate, or to now adopt its running mate in the poll, James Faleke, as its substantive candidate or even to demand an outright cancellation of the election.

Nick Dazang, the Deputy Director of Publicity of the commission in an interview with the News Agency of Nigeria (NAN) in Abuja said: “APC has to do proper notification and accompany it with the certificate of death issued by a medical doctor.

“Once the commission is notified, it will look at relevant clauses of the 1999 Constitution as amended, the Electoral Act 2010 as amended and also the constitution of APC itself,” he said.

The commission which said it was studying the situation went into a crucial meeting presided over by its chairman, Prof. Mahmood Yakubu, to review the poll and come up with a definite date when the commission will conduct a supplementary election.

Addressing party representatives, stakeholders and journalists at the Kogi State INEC headquarters, Lokoja, venue of the collation, the Returning Officer for the election, Prof. Emmanuel J. Kucha, had declared that the 41,353 votes difference between the two leading parties, the APC and Peoples Democratic Party’s (PDP) was lower than the 49,953 cancelled results spread across 91 polling units in 19 local governments in the state, hence no winner could be declared.

But the question remains: Should INEC go ahead to declare the deputy governorship candidate of the Kogi APC, Faleke, the standard-bearer for the gubernatorial election in the state? In attempting to answer this question, which portends a constitutional crisis, lawyers remain divided.

In the election which was declared inconclusive, INEC said that the late Audu, who was the governorship candidate of the APC, was ahead, scoring the highest votes of 240,867 while the incumbent governor of the PDP, Idris Wada, came second with 199,514 votes.

The former Attorney General of Abia State and law teacher, Awa Kalu (SAN) said since the constitution did not envisage such a situation, the best thing to do was to elevate Faleke as the governorship candidate for the election.

His words: “As far as I am concerned, they should conclude it with the deputy elevated to the position of the governor. There are three stages in an election. We have passed the pre-election stage and are now in the election proper. We have a candidate who took an associate, (that is what the law calls him) and the candidate himself has died leaving the associate. As far as I am concerned, they are on a joint ticket. Therefore, the surviving deputy governorship candidate, who is a candidate in the election, should be allowed to continue with the election.

“The election is 90 percent concluded because that represents the results already announced. Some lawyers are saying that the election should be annulled. INEC does not have the powers to annul the election. I think they should conclude the election with his running mate while he chooses his own deputy governorship candidate. The law did not envisage such a thing and would not capture everything.”

Another Senior Advocate of Nigeria, Roland Otaru, agrees with Kalu. He believes that the deputy governorship candidate should naturally step into the shoes of his late boss. “The issues are very clear. Without a deputy governor, there can’t be a governor. I hear people say that there should be a fresh election, but there is a timeline within which to nominate candidates and go into election. Would they amend the electoral act? So it is very easy for the deputy to step into his shoes to conclude the remaining polling units because he also participated in the election”, he stated.

According to him, if the deputy governorship candidate was not nominated, Audu would not have participated in the election in the first place. “There is a time lag within which to nominate candidates. Are they now saying that the APC should go and conduct another primaries? James Faleke will just step into his shoes and nominate a candidate who will be his deputy”, he submitted.

Otaru added that the doctrine of necessity should be invoked in the circumstance, since the constitution did not envisage it.

His words: “In trying to change him, it would violate the provisions of the electoral act, because there are times within which to nominate a candidate, time to submit the names of nominated candidates, time to campaign and all that.”

Also, a Senior Advocate of Nigeria (SAN), Abeny Mohammed, urged INEC to shun any attempt at conducting a fresh governorship election.

Mohammed said a liberal interpretation of Section 181 (1) of the 1999 Constitution should be applied by the INEC.

He said since the election process had commenced before the death of Audu just as INEC had equally declared the results inconclusive, it would amount to short-changing the leading political party in the polls, (APC), if an entirely fresh election was ordered.

He argued that Section 181 (1) of the Constitution had contemplated it.
The senior member of the Bar said INEC should not allow the eligible voters to pass through another round of excruciating voting just as he cautioned against time-wasting and profligacy.

He said: “Expressly, the situation where the election was ongoing and the candidate dies is not captured either in our Constitution or Electoral Act. But the closest to the relevant section is Section 181 (1) of the 1999 Constitution.

“This section contemplates what happened in Kogi State’s election. It can be liberally interpreted to allow the running mate of the deceased candidate to be declared the winner, if his party eventually wins the required majority votes cast at the end of the whole exercise. This is by far the best and the nearest solution to the seeming logjam.”

Mohammed, while exploring another option, advised the running mate to seek a legal redress based on the already cast votes, praying for his declaration as the governor-elect while relying on Section 181 (1) “rather than ordering an entirely fresh election.”

The former attorney general of Ekiti State, Mr. Dayo Akinlaja (SAN) favours a fresh election that will accommodate new nominees. According to him, everything has to start afresh because as it is now, there is no candidate for the APC that can go for the supplementary election.

“The deputy governorship candidate was just a running mate and not the governorship candidate of the party. There is no legal provision to accommodate his elevation. The constitution did not envisage such a situation. The question we will ask ourselves is that now that the election is inconclusive, what is the import? The point is that nobody has been declared the winner in that election”, he said.

According to him, there is no candidate on the platform of the APC to join the PDP candidate in concluding the election since Audu is dead. He said that the party would have to pick another governorship candidate and then the election would be started afresh.

A Lagos-based human rights lawyer, Festus Keyamo, described the imbroglio as ‘‘a strange and novel constitutional scenario.”

“It has never happened in our constitutional history to the extent that when an election has been partially conducted (and not before or after the election) a candidate dies. What then happens?

“This is a hybrid situation between what happened in the case of Atiku Abubakar/Boni Haruna in 1999 and the provision of Section 33 of the Electoral Act, 2010.

“In the case of Section 33 of the Electoral Act 2010 it provides, in effect, that if a person has been duly nominated as a candidate of his party and he dies before the election then the political party has the right to replace him with another candidate and not necessarily the deputy governorship candidate.
“Now, does the Kogi situation fit into section 181(1) of the Constitution as quoted above or Section 33 of the Electoral Act mentioned above?” he asked.

According to Keyamo, the situation fits more into Section 181(1) of the 1999 Constitution (as amended) and as such Faleke should automatically become the governorship candidate of the APC.

This, he said, was because even though the election was inconclusive, votes had been counted and allocated to parties and candidates. “As a result, the joint ticket of Audu/Faleke has acquired some votes already. Faleke is as much entitled to those votes already counted as much as the late Abubakar Audu. He has a right to cling to those votes going into the supplementary election.”

However, another human rights crusader, Ebun-Olu Adegboruwa, said the combined effect of sections 181, 221 of the 1999 Constitution and sections 33 and 36 of the Electoral Act is for the INEC to conduct fresh elections.

According to him, since results had not been declared officially and no clear winner had emerged before the death of Audu, his ticket cannot be given to somebody else, notwithstanding that he ran a joint ticket with his deputy then.
“From these sections, it is clear that the death of a candidate before the result of the election is officially announced and declared, is to abort that election. It terminated the process completely. In the eyes of the law presently, the Kogi State governorship election is inconclusive and aborted; it is inchoate and nobody can claim to derive any benefit therefrom.

“The confusion, needless litigation and controversy that may trail the substitution or otherwise of Mr. Audu, are better avoided. And there’s no way the People’s Democratic Party or Captain Idris Wada, can claim any benefit under such circumstances”, he stated, urging INEC to prepare to conduct fresh elections in Kogi State, within 14 days.

For another lawyer, Daniel Onwe, the provisions of section 181(1) of the 1999 Constitution is to put the deputy-governor in the shoes of the governor, adding, however, that this would only be so if somebody had been duly elected as a governor.

“Abubakar Audu has not been duly elected as governor as the election was declared inconclusive.

Accordingly, this provision of the law cannot be applicable in this circumstance. Consequently, the running mate of Abubakar Audu cannot automatically be subrogated for Abubakar Audu.

“Prince Abubakar Audu’s running mate, like other running mates, did not cross the Rubicon of election primaries; as such he cannot contest a subsequent election as a gubernatorial candidate. Therefore, to all intents and purposes, APC has no gubernatorial candidate at this stage”, he submitted.

Also, a Professor of Law at the Enugu State University of Science and Technology (ESUT), Frank Asogwa, called on INEC to conduct a fresh election in Kogi State to resolve the impasse created by Audu’s death.

In his reaction, Asogwa said Audu’s sudden death had aborted the election.

“By the death of Audu, in the eye of law the election process started has been aborted. The deputy governorship candidate could have been sworn in if INEC had declared Audu winner before the unfortunate death. But in this case where INEC declared the election as inconclusive, which means the process has not been completed, the only option will be for INEC to fix a new date for a fresh election. The PDP candidate who is a runner-up in the election cannot also be declared winner as he did not get the highest votes in that election,” he said.

Also, Prof. Aloysius Okolie of the Department of Political Science, University of Nigeria Nsukka (UNN), said it would be wrong to catapult the APC deputy governorship candidate to governorship candidate since INEC’s time for substitution had elapsed.