The jigsaw puzzles created by the sudden death of Prince Abubakar Audu, candidate of the All Progressives Congress in the Saturday November21 governorship election in Kogi state, are stirring issues over the nation’s 1999 Constitution and Electoral Act. KENNEDY EMETULU in this analysis raises critical questions begging for answers.
The passing on of Prince Abubakar Audu, the gubernatorial candidate of the APC in the Saturday, November21Kogi governorship election has a legal question to be decided by INEC and the courts is unquestionably before us, because the Constitution and the Electoral Act seemingly make no provisions for death of a candidate at this point of an inconclusive election. It’s the sort of challenge that the new INEC leadership under Professor Mahmood Yakubu would not have prayed for.Let’s consider where we are. We have had an election held on Saturday, November 21, 2015.
INEC has come out to announce that the election is “inconclusive”, because, according to the Returning Officer, Professor Emmanuel Kucha, the collation of results from the 21 local government areas of the state showed that the cancelled votes were higher in number than the margin between the leading candidate, Prince Abubakar Audu of the APC and the PDP candidate, Captain Idris Wada who was the runner-up. The Commission therefore decided on a supplementary election to determine the winner, but with no date fixed yet. So, in a de facto and de jure sense, the election is still ongoing. But then, something happened after this decision was taken.
One of the candidates, Prince AbubakarAudu reportedly died before the conclusion of this election or before the proposed supplementary election that should have concluded the whole process.
So, what does our law say? Here is what the Constitution says:
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”.
Clearly, this provision does not apply to the situation on the ground, because Prince Abubakar Audu was not the Governor-Elect before he died. So, Abiodun Faleke, his running-mate was not elected the Deputy-Governor and therefore cannot be sworn into office in line with Section 181(1).
How about the Electoral Act 2010 (as amended)? Here is what it says:
Section 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”.
Again, technically speaking, this section does not seemingly apply to the situation we are in. This is because the poll has already commenced, but is yet to be concluded before the candidate died.
Further, with regard to the change or substitution of a candidate by a political party, the Electoral Act in section 33 says: “A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 32 of this Act, except in the case of death or withdrawal by the candidate”. Section 32 (1) of the Electoral Act referred to above says: “A candidate for an election shall be nominated in writing by such number of persons whose names appear on the register of voters in the constituency as the Commission may prescribe”.
So, what section 33 is saying is that a political party cannot substitute the name of anyone duly nominated under section 32(1) with another name or candidate except in the case of (1) death and (2) withdrawal.
As it concerns the withdrawal of a candidate, section 35 of the Electoral Act says: “A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to the election”.
All this taken together, the only provision that seems to give us a little room to manoeuvre is section 33 of the Electoral Act. But following the strict reading of the law, there is an impediment here in the fact that the candidate died during the election itself and not before the commencement of the poll. This ordinarily means the political party cannot substitute this candidate on the basis of death, because death occurred during the poll, not before the commencement of it to trigger the operation of section 36(1) of the Electoral Act.
Also, INEC seems not to have prepared itself for this eventuality if one reads the Frequently Asked Question (FAQ) page of its website where it provided answers to likely questions. Below are answers it provided for Questions 57 and 60 dealing with a candidate’s substitution occasioned by withdrawal or death:
57. Q: Can a candidate be changed or substituted by the party?
Ans: Yes. However, a candidate can only be changed or substituted in case of death of, or withdrawal by the candidate.
60. Q: What happens when a candidate dies before an election?
Ans: His political party will send the name of another nominee to the Commission within the stipulated time (i.e. 45 days before the election).However, if after the time for submission of nomination and before the commencement of the poll, a nominated candidate dies, the Commission shall cancel the poll in which the deceased candidate was to participate and shall appoint some other convenient day for the election.
In none of the above did it address the question of candidate’s death during election. What it addressed here are the same questions the Electoral Act addressed, which is death before the commencement of the poll or election.So, what do we do? I think, even though it’s not a court of law, INEC should adopt a purposive approach to the interpretation of the statute, because that is likely how the court will view it if the matter comes before it.
Should it take the matter to court for interpretation first before it continues with the election? That is a decision it should take in consultation with its legal officers, but if I were to advise them, I’d say no need, because the election is already on and the public policy argument must favour a quick and favourable conclusion, so as not to extend the tenure of the incumbent unduly, especially where he may likely not be the one ultimately elected. INEC must always act in the spirit of allowing the people to choose their Governor as at when due. It is the essence of choice in a democracy.
A purposive reading of the Electoral Act will look at the provisions of Sections 33 and 36(1) and conclude that the mischief the Electoral Act is trying to cure with these provisions is to avoid a situation where death of a candidate frustrates the election.
So, the oversight of not specifically considering what happens when a candidate dies during election should not take away the justice and fairness provided in the law for all situations where a candidate dies before or during the poll, especially where there is no material change in the situation between the time before the poll and during the poll when death occurred.
Obviously, there are those who think all that needs to happen now is for AbiodunFaleke, the running-mate to step into the shoes of Audu and contest the supplementary election. This cannot be the case for two reasons – one legal, one practical.
But first let us consider the legal reason, which is that the Supreme Court has ruled in Amaechi’s case that it is the party that contests elections and if anybody must step into Audu’s shoes, it is the party that will produce such a person after due process of activation of internal party democracy for this purpose. I’m proposing that we look at this legal reason first before considering the second practical one, because, paradoxically, the same legal argument I’m proposing here based on the Supreme Court’s verdict in Amaechivs INEC et al, S.C. 252/2007is the same argument those who think MrFaleke should step into Audu’s shoes depend on in support of their thesis, even if in a roundabout way.
Before looking at the decision in the case as it affects this issue by implication, let me debunk the roundabout argument that the intendment of the Constitution, which is for the Deputy-Governor to step into the shoes of the Governor where the latter is deceased, is the same as the running-mate stepping into the shoes of the candidate where the latter is deceased. What they are failing to see in putting forward this argument is that the singular determining factor is a conclusive election that has produced a substantive or elected candidate already, not one that is inconclusive or ongoing. You cannot build something on nothing. The running-mate cannot claim from a platform that has not yet won. The assumption that from the result of the inconclusive election, the Kogi election is as good as won and lost is a fudge. The fact that it is declared inconclusive and the fact that a supplementary election had been scheduled beforeAbubakar’s death tell us exactly that it is not won and lost yet.
