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The death of Abubakar Audu, governorship candidate of the All Progressives Congress during the inconclusive gubernatorial election which held on Saturday, November 22, has engulfed the Nigerian polity in controversy because there is no Constitutional provision on how to act if a candidate dies during election. The Independent National Electoral Commission has given nod to the All Progressives Congress to substitute its candidate while some persons and the opposition Peoples Democratic Party are crying foul and threatening court actions

|  By Olu Ojewale  |  Nov 30, 2015 @ 01:00 GMT  |

THE political dust raised by the death of Abubakar Audu, gubernatorial candidate of the All Progressives Congress, APC, in the governorship election of Kogi State held on November 22, may take sometimes to settle.  Audu died on Sunday, November 23, before the Independent National Electoral Commission, INEC, declared the election inconclusive.

Emmanuel Kucha, returning officer of the INEC in the Kogi State gubernatorial election, had declared the election inconclusive on the grounds that cancelled votes or registered voters in the 91 polling units, where the exercise did not take place were 49,953, a figure higher than Audu’s lead of 41,353 votes.

The deceased had polled 240,867 votes in the election while Idris Wada, incumbent state governor and candidate of the Peoples Democratic Party, PDP, scored 199,514 votes, leaving a gap of 41,353 votes between the two leading candidates in the election.

Hence, Audu’s death of the APC candidate threw the country into an unexpected and unique constitutional crisis. Having been duly informed of the passing away of the APC candidate in the inconclusive election, the INEC on Tuesday, November 24, asked the party to proceed with a process to replace the late politician with another candidate in the supplementary election slated for December 5, to conclude the election process.   The APC, in its response, said it would hold a fresh primary to produce a replacement for the deceased as its flag bearer.

Decisions of the INEC and the APC have since become subjects of controversy as lawyers and politicians of different school of thoughts have failed to agree on appropriate action in a case of this nature.

On Thursday, November 26, Ebun-Olu Adegboruwa, a human rights lawyer, filed a suit at the federal high court, Lagos, praying the court to order the 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 INEC, the PDP and the APC, Adegboruwa 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 prescription is to conduct fresh elections.

Hence, the lawyer said that the constitution does not recognise any arrangement whereby votes would be preserved in memory of a dead candidate and then transferred such votes to another candidate newly nominated and who was not part of the previous election that had been declared inconclusive.

The lawyer, therefore, is asking the court’s to determine the following legal issues: “Whether the 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 the 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, the INEC could proceed with the said election and also give permission to the political party of the dead candidate to substitute him in the said inconclusive election.

He, therefore, asks the court to order the INEC to conduct fresh election in the state, adding that INEC has no power to substitute a dead candidate, nominated for an election that had been declared inconclusive.

At press time the case was yet to be assigned to a judge for a hearing date.

As if that was not serious enough, while the APC was also yet to device modalities for holding its promised fresh primaries, James Faleke, Audus’ running mate in the inconclusive governorship race, on Thursday, November 26, called on the INEC to declare him the winner of the election and urged the party leadership to support the idea.

Faleke’s position was contained in a two separate letters dated November 26, which were written to John Oyegun, national chairman of the APC and Mahmood Yakubu, chairman of the INEC, by Wole Olanipekun, SAN, his counsel.

In the letter, Olanipekun pointed out that the conduct of the election was peaceful and results announced accordingly. 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.

Olanipekun said the fact that Audu and Faleke “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 platform 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.”

The letter argued that the INEC had no reason whatsoever for declaring the election as inconclusive and that the reasons given by the commission for such pronouncement were alien to the Constitution and, therefore, should not stand. It also argued that the INEC had 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.

The letter said in part: “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 the 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.”

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

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 was final under section 61(c) of the electoral Act, 2010 and could 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.

He cautioned: “Mr. Chairman Sir, this is a rather simple and straightforward matter, which does not need any delay, foot-dragging or procrastination. It is a constitutional imperative. Put in another way, the 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 the INEC breaching and flouting the Constitution, and our client would definitely challenge it.”

A similar court action had been threatened on Wednesday, November 25, when the national leadership of the PDP called on the INEC to declare Governor Wada, as the winner of the November 21 governorship election in Kogi State or face a legal action.

The party also asked that the APC should be excluded from the supplementary election slated for December 5, since its candidate died before the election was declared inconclusive. The party’s position was contained in a communiqué issued at the end of its national caucus meeting held in Abuja on Wednesday night.

The communiqué, signed by Olisa Metuh, national publicity secretary of the PDP, insisted that with the death of Audu during the election, the APC had legally “crashed out” of the race.

The PDP condemned the INEC’s decision to allow the APC to field another candidate, saying no known law or constitutional provision allowed the substituting of candidates, once the ballot process had started. The party, however, threatened to challenge the INEC’s decision in court should the APC be allowed to participate in the supplementary election.

Besides, the PDP accused the INEC of yielding to the dictate of the Abubakar Malami, attorney general of the federation, by allowing the APC to substitute a candidate in the middle of an election. It insisted: “With the unfortunate death of Prince Abubakar Audu, the APC has no valid candidate in the election, leaving INEC with no other lawful option than to declare the PDP candidate, Captain Idris Wada, as the winner of the election.”

The PDP is not alone in the assessment. The Democratic Peoples Congress, DPC, which was one of other 21 parties that participated in the election demanded for a fresh governorship election in the state.

Olusegun Peters, national chairman of the DPC, said in a statement in Abuja, on Wednesday, November 25, that his party rejected the INEC’s position to continue the poll by conducting a supplementary election for 91 polling units on December 5.

“It is inappropriate for the INEC to direct the APC to choose another candidate to substitute the late Audu and continue the governorship election when the people voted for the candidacy of Audu and not the yet-to-be-selected candidate the electorate did not vote for,” he said, adding that such a move would amount to imposition of candidate on the state.

Some legal luminaries have expressed the similar sentiments about the INEC decision. Gabriel Olawoyin a law professor, in an interview, argued that the decision of the INEC would give rise to a lot of controversies because the legal issues were so complex and could not be so easily resolved.

Olawoyin said: “It is a constitutional matter and the best option would have been to take it to court in line with Section 295 of the Constitution for it to arrive at a decision. I would have preferred a situation in which the matter is referred to court for resolution of the legal logjam. The legal arguments on both sides are very strong and should have been subjected to judicial interpretation.”

On his part, Mike Ozekhome, SAN, acknowledged the right of the APC to present another candidate but faulted the INEC’s decision to go ahead with the supplementary election.

“The reason is that my good friend Prince Audu died before he was confirmed governor, which means the mandate had not been given. If he had died after he was confirmed governor, the provision of Section 181 (1) and (2) would have played out,” Ozekhome said.

According to the lawyer, the scenario was neither the same as contemplated by Section 181, nor was it similar to that of Atiku Abubakar, after being nominated to be the vice-president to then President Olusegun Obasanjo and had to be replaced with Boni Haruna, his then running mate, in the Adamawa State gubernatorial election.

He said: “What ought to happen in this case should be the conduct of a fresh election between Idris Wada and a new candidate from the APC, but not a supplementary election.”

A supplementary poll, he said, became null and void with Audu’s death as he was to partake in it.

Ozekhome: “The problem APC may run into, and they have to be very careful, is that they would have to contend with the provisions of Section 179 (2) of the Constitution, as well as sections 31, 33, 53 (2) (3), 85 (1), 87 (1) and 141 of the Electoral Act, all of which show that the candidate they put forward must have passed through the various stages including emerging from valid primaries.

“That is where I believe their best option is to go into the pool of those who contested the primaries and lost to Audu and pick a candidate from there to face Wada, as such a person would have gone through various electoral stages.”

However, Itsay Sagay, a professor of law and SAN, said the INEC was right to have decided to go ahead with the supplementary poll in Kogi State. Sagay said it was the best step to take in the prevailing circumstance. The law icon similarly aligned himself with those suggesting that Faleke should step in to carry the party’s flag at the supplementary election. He said: “With the passing away of Abubakar Audu, the only logical and solution closest to the law on ground now is to allow his running mate to step into his shoes for the supplementary election. We already have that in the constitution with regards to somebody who has won an election but died and is unable to assume office for any reason.”

Sagay referred to Section 181 (1) of the Constitution which states that “where there is a governorship election and the victorious candidate dies before he is sworn in, his deputy or running mate shall be sworn in as governor,” to back up his argument.

He added: “In this case, there is nobody elected as governor. But the election has been held, leaving only supplementary election to be done and the candidate of one of the political parties died, by analogy, I think that provision in Section 181 (1 ) shall apply so that the deputy governorship candidate should now be regarded as the governorship candidate for the purposes of the supplementary election.”

Niyi Akintola, SAN, agreed that the INEC had the right to continue the process by holding a supplementary election in the 91 polling units. “The death of Audu cannot nullify the election. It was the APC that contested the governorship election not Audu as an individual.” Akintola explained that it was left to the APC to pick another candidate from among those that contested the governorship primary with Audu or ask Faleke to take over.

Onyekachi Ubani, a human rights lawyer, also supported the idea of Faleke stepping in to go through with the process. Ubani said: “Since the Electoral Act didn’t specifically provide for things like this happening in the course of an election, we would have to make recourse to the judicial pronouncement in the case of Rotimi Amaechi where the Supreme Court said in an election, it is the political party that is the beneficiary of election and not the candidate.  That is why Amaechi who didn’t contest elections was sworn in.

“In this situation, the deputy governorship candidate would have to step in to conclude the process. If he wins the election, the APC would then decide on another deputy for him.”

The lawyer argued that the time to choose a candidate through primary election had lapsed for all the political parties and that it would not be possible for any of the parties to go for primaries anymore.

But that would, indeed, be another tough order for the party in the state. For a start Faleke belongs to a minority Yoruba ethnic group in Kogi State, which may work against him unless he could muster the support of the majority Igala ethnic group to his side.

Not only that, Faleke is regarded as candidate of Bola Ahmed Tinubu, former governor of Lagos State. In fact, he is a current member of the House of Representatives representing Lagos State. And since the death of Audu, some indigenes of Kogi State have accused Tinubu of being responsible for his death in order to pave way for Faleke to become the state governor.

Above all, since he did not participate in the primary which gave Audu the ticket to contest the election, he is seen as not to have prepared for the office and, therefore, might not have an agenda on how to govern the state very well.

Besides, if the argument of Ozekhome on the Electoral Act that the APC could only put forward the candidate that must have passed through the various electoral stages including emerging from valid primaries, is accepted, then the party would have to pick from those who contested and lost to Audu.

If this happens, perhaps, the best possible candidate to pick is Yahaya Bello, a former PDP governorship aspirant, who was the runner-up in the governorship primaries of the APC held on August 29.

In fact, some members of the National Working Committee of the APC were already tipping him to take the mantle and shelve the idea of holding fresh primaries as earlier proposed. If it happens that way, the party would be copying from the PDP experience which shelved the idea of holding new primaries in Bayelsa State in 2007 following the nomination of former President Goodluck Jonathan as vice-presidential candidate to the late President Umar Ya’Adua. Consequently, the party picked Timipreye Sylva, who came second in the governorship party primaries, as the party’s governorship candidate.

However, Bello is not going to have it easy. As at press time, there were still a handful of opposition from powerful quarters against him based on his antecedent as a former PDP man.

That notwithstanding, it is believed that whoever emerges as the party’s choice would need the support of Audu’s political structure. This, perhaps, informed why some persons have been campaigning that Mohammed, Audu’s first son, should be given the ticket to succeed his father. A source was quoted as saying: “Abubakar Audu’s supporters, including his campaign structure, are rooting for either Audu’s son, Mohammed, or James Faleke for them not to lose out entirely. They are narrowing it to either Faleke or Mohammed because the APC machinery believes that the election has been won. But the party elders and leaders, who worked for him, will be more comfortable with Mohammed.”

The idea seemed to have gotten the backing of the leaders of the APC in Kogi East Senatorial district. Abdulmalik Sulaiman, Kogi State publicity secretary of the APC, confirmed that the party leaders in Kogi East had endorsed Mohammed as a replacement for his father because they were convinced that 43-year-old businessman was highly competent to be the state’s governor.

Sulaiman said: “Mohammed is more than qualified to be the next governor of Kogi State. He is a successful businessman. He is mature enough and has all it takes to lead a state. The APC family is willing to have him.”

But whether the party will accept him as the party candidate without falling foul of the law is another matter. In any case, by end of the week, the APC leadership was still in the cocoon, trying to find an acceptable solution to the quagmire.  Whatever road the INEC and the APC may tread in finding resolving the apparent political logjam is not likely to be acceptable to everyone. So, from the look of things the legal crossfire looks a viable option and should be expected.

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