Analysis… Audu’s death and the constitutional logjam

In from Timothy Enietan-Matthews and Olumide Olaoluwa . . .
History was in the making on Sunday and had things gone smoothly, Prince Audu Abubakar, governorship candidate of the All Progressives Congress (APC) in the Kogi election, would have been the first person in the history of Nigeria to retake a governor’s seat 13 years after leaving, and to be governor three times. But unfortunately, the cold hands of death caught up with him, denying him the opportunity to make history and reap the fruits of a hard fought battle.
Audu’s shocking death also brought with it confusion of no mere proportion. The atmosphere in the state is that of gloom, a graveyard silence pervades the air with silent questions of the next line of action, now that the man popularly called Adoja is gone.
Audu passing has no doubt created a legal dilemma for authorities, and it has set off a barrage of debates as to what the next step of the electoral umpire, the Independent National Electoral Commission (INEC) should be.
Audu died mid-way into the elections, with results from the 21 local government areas of councils of the state showing him as a clear winner. With 240,867 votes, he was on his way to a historic third electoral victory after six attempts as against that of the incumbent governor, and closest challenger, Idris Wada of the Peoples Democratic Party (PDP) with 199,514 votes.
However, INEC announced yesterday afternoon that the election was inconclusive, and that there would be re-run polls in 59 polling units which have about 49,000 registered voters. The news of Audu’s death broke shortly after the announcement, raising questions on how the exercise could be concluded because the 1999 Constitution and the Electoral Act are silent on what should be done if a candidate dies while the election is on-going.
Those who drafted the Constitution and the Electoral Act did not make provision for such a scenario, where a candidate dies mid-way into an election. The laws make provision for the upgrading of a deputy governor or running mate to assume the position of governor or governorship candidate, but only after the election has been concluded and a winner declared. The laws never envisaged the possibility of the death of a candidate of an inconclusive election.
Today also, the Electoral Act only provides that in case a candidate dies before an election, INEC is mandatorily required to postpone the poll.
The legal lacuna has therefore created an urgent need to come up with either a legal or political solution that may well become a precedent in the absence of a legal provision that has been documented.
The question now is; Will INEC simply invite Hon. James Abiodun Faleke to step up into Audu’s shoes or will it order the APC to nominate a new candidate to replace him and conduct a fresh election? Or will the electoral body the declare incumbent governor, Captain Idris Wada of the Peoples Democratic Party, PDP, winner on the basis that the APC no longer has a governorship candidate?
It is more of a baptism for the new INEC boss, Prof Mahmoud Yakubu, given that available laws do not give the electoral body the power to pursue a specific line of action in this kind of situation.
As was to be expected, lawyers differed over what INEC should do following Audu death.
Constitutional lawyer, Itsay Sagay, said the electoral commission might have to conduct a fresh election in the state.
According to him, Audu’s death has voided the process so far. The Professor of Law disagreed that the Supreme Court’s position in the case of former Rivers governor, Rotimi Amaechi, would apply in the present situation.
He said Amaechi’s case “What happened was that the person nominated by the party was not the person that won the primary election.
“It would be assumed that he would have won the election if he was the one nominated by the party since he won the primaries,” he explained.
But a former Chairman of Nigerian Bar Association (NBA), Ikeja Branch, Monday Ubani, said INEC should allow Audu’s running mate, Abiodun Faleke, to conclude the ongoing process.
Ubani said Audu’s death has not in any way invalidated the re-run that would hold in some parts of the state soon.
“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 that 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.”
Ubani argued the timeline to choose candidate through primary elections has elapsed for all political parties, saying it has become impossible for any of them to go for primaries anymore.
He contended that the deputy governor who has been on the ground with the late candidate should be allowed to carry the flag of the party.
A member of the Ogun State Judiciary Service Commission, Abayomi Omoyinmi, however supported Sagay’s position.
He said: “In the eyes of the law, the deputy should ordinarily conclude the re-run election for the office of the governor and that it is now left for him to pick a new running mate.”
Omoyinmi argued that there is no existing law in the country that suggests otherwise because the kind of situation that occurred in Kogi was not envisaged.
A lecturer‎ of Law at University of Lagos (UNILAG), Akoka, Wahab Shittu, said both perspectives could be right.
He said since the election was declared inconclusive, the running mate should be allowed to step in and conclude the process of the supplementary election.
This, he said, has become necessary because the electoral law did not envisage such incidence.
On the other hand, he said since it is the ‎party that fields the candidate, it might have to replace the governorship candidate.
“The death of a candidate during the process of an election automatically voids the election.
“It is not a question of an election being inconclusive. The entire electoral process is now altered with the death of the governorship candidate,” Shittu argued.
For Olisa Agbakoba, a fresh election will be the way to go while an Abuja based lawyer and election monitor Barrister Apede, insisted that the time for nomination and substitution of names is far gone, making the option of fresh election unattractive.
But others argue that should the electoral body substitute the governorship candidate with his deputy, who only emerged a deputy by being selected by the gubernatorial candidate?
Whichever solution INEC goes for is filled with its own landmines.
Upgrading Faleke
For many, upgrading Faleke seems to be the natural and easiest of the options. However, it is one that is also dangerous to do.
The politics of Kogi State is one that has always been dominated by the majority Igala people of the Eastern zone of the state. An average Igala man will proudly vow that no other tribe in the state will be governor, as they will always use their numerical strength to occupy the office.
In the build up to last Saturday’s election, there were deafening agitation for power shift to either the Ebrias of the Central zone or the Yoruba speaking Okun people of the Western zone, where the running mate to Audu, James Abiodun Faleke hails from.
Upgrading Faleke will mean the agitation for power shift that could not be achieved during party primaries, came through the back door. This situation may not readily be acceptable to the Igalas, and it would be vehemently opposed.
Nominating a fresh candidate
The other option opened to INEC is calling for a fresh nomination and conducting another election entirely. With this option, the APC may have to invite the runner-up of its governorship primaries, Alhaji Yahaya Bello to take up the challenge.
Aside the cost of conducting a fresh election and the legal provision for a time framework, the APC may end up the loser as fielding Bello at this time is an easy opportunity for Governor Wada to coast home to victory. Igalas will most certainly vote for Wada, whom they roundly rejected for Audu. It is doubtful if APC would want to take that risk.
Declaring Wada winner
Another option will be to declare Governor Wada winner, having come second in the number of votes garnered. But do the laws recognize this option? Can the APC be said not to have a candidate in the face of the law? Will it be morally right and fair to Kogites that a candidate they rejected through their votes is imposed on them for another term in office?
The available options have no clear cut legal backing so the ball now falls squarely in the court of INEC and the new Attorney General of the Federation (AGF) to fashion out the next line of action, as Nigerians wait patiently to see if the solution would be political or legal, plus all the implication and intrigues that would go with it.

#whatdoyouthink: Drop a comment, What should INEC or APC do in this situation?

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