With the news of the death of former Governor of Kogi, Audu Abubakar coming in just a day (Sunday, November 22, 2015_ after the elections that would have seen him, most likely make a third run at being governor of his state, legal questions arise.
About an hour before the news of Audu’s death broke, the Independent National Electoral Commission (INEC) had just declared the election of November 21 inconclusive. Audu was the candidate of the All Progressives Congress (APC) and putting up a challenge against the sitting governor, Captain Idris Wada of the People’s Democratic Party (PDP). Audu was leading at the polls, however.
News of Audu’s death may may have thrown Kogi State into a completely unprecedented constitutional quagmire.
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The extraordinary event of a Candidate (in clear lead) dying after the elections but before being declared as duly elected is NOT contemplated by the Constitution.
Section 181 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) may provide some guide, but nothing more. The section provides:
181.- Death , etc. of Governor elect before oath of office
(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.
The above sub section which admits of no ambiguity provides that the person elected as Deputy Governor will be sworn in but only in the event that the person duly elected as the winner died before taking the Oath of Office. Emphasis on DULY ELECTED.
Another relevant provision to consider is Section 36 of the Electoral Act which provides:
36.-( I) If after the time for the delivery of nomination paper and before the 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.
From the news reports available to me as at the time the elections were declared inconclusive by INEC, Abubakar Audu was in clear lead (after 21 LGAs) albeit not enough to be declared the winner.
Using the above provision as a guide, it appears to me that there are three options available to INEC in the circumstance:
(1) Declare Abubakar Audu as the winner of the elections and the Deputy Governor is subsequently sworn in.
The first option available to INEC is to conclude the elections at a later date with Abubakar Audu as the Candidate of the APC and if as I expect, he wins the election, INEC will then declare him the winner and his Deputy Governor will be subsequently sworn in as Governor to comply with the Constitution.
This view is supported by the judicial attitude that leans towards party consideration rather than the individual candidate. The courts have ruled several times that it is the party that is voted for, and not the candidate. If therefore a party is on the verge of winning an election, handing over the victory to the party in 2nd place due to the death of the winning party’s flag bearer will do injustice to that principle.
(2) Cancel the elections and conduct fresh elections
The second and probably safer option is to cancel the entire election and conduct fresh elections in 90 days or as soon as practicable. Considering that the tenure of the current governor expires on January 28, which is less than 90 days away, it means that if INEC goes for this option, the Speaker of the Kogi Assembly will be sworn in as Acting Governor. This option is considered safer so as not to create the precedent of conducting elections with a dead candidate on the ballot.
(3) Declare Captain Wada as the winner of the elections.
The last option is to consider the votes cast for Abubakar Audu as frustrated by the event of his unfortunate death and declare the second person, likely Captain Wada as the winner. This option which is without any justification is workable only in the unlikely event that Wada also won ¼ of the total votes in 2/3rd of the Local Government Areas in Kogi State.
Orji Uka is a legal practitioner with one of the top law firms in Nigeria. He was admitted as a Barrister & Solicitor of the Supreme Court of Nigeria in 2012. He is a member of The Trent Voices. An alumnus of Abia State University, Uturu (ABSU). Orji, who is a soccer aficionado currently resides in Lagos, Nigeria and tweets from @orjiuka.
The opinions expressed in this article are solely those of the author.
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