Sunday, 22 November 2015

Kogi Election and Abubakar Audu’s death: What lawyers and the law say

Read what The legal battle may have ensued on the fate of the election. Kogi Election and Abubakar Audu’s death:

With the death of Abubakar Audu, the candidate of the All Progressives Congress in Saturday’s governorship election in Kogi State, a new legal battle may have ensued on the fate of the election.

Mr. Audu was leading his closest challenger and incumbent governor, Idris Wada of the Peoples Democratic Party, by 41,353 votes.

The Independent National Electoral Commission, however, declared the election inconclusive as possible votes from the 91 cancelled polling units (49,953) is higher than the margin between the two leading candidates.

Mr. Audu would have eventually emerge winner after elections are held in the 91 polling units as the PDP candidate would have needed 100 per cent turnout and about all the votes for his party to emerge victor.

However, before he could celebrate his potential victory, the APC candidate died, throwing the country into a unique constitutional crisis.

Perhaps the closest constitutional section that relates to such a scenario is Section 181 which states that  (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; and (2) Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the inauguration of the house of Assembly, the Independent National Electoral Commission shall immediately conduct an election for a Governor and Deputy Governor of the State.

However, as stated by Abdul Mahmud, a constitutional lawyer, the section only refers to when a person is ‘duly elected.’

With INEC declaring on Sunday that the Kogi election was inconclusive, it is not clear if Mr. Audu could be considered ‘duly elected’.

“We are in a strange legal territory! The 1999 Constitution and the Electoral Act do not envisage the unfortunate circumstance that Audu’s death foists. INEC had declared Saturday poll inconclusive, which makes S.181(1) CFRN 1999 irrelevant,” Mr. Mahmud said.

“In my opinion, a fresh poll is not necessary. Section 36(1) of the Electoral Act 2011 empowers INEC to countermand (cancel) the poll for the 91 polling units it had earlier announced and fix a new date for the poll within 14 days. The effect of this section is that the power of countermand can only be exercised on the death of a candidate and after nomination paper has been filed.

“The poll for the 91 polling units is not a fresh poll; it is the same November 21 poll, in my opinion. So, what happens to the APC? Section 33 of the Electoral Act 2011 allows the party to substitute the dead candidate. Under this section, substitution can only be allowed when a candidate dies or withdraws.”

Section 36 (1) of the Electoral Act, to which Mr. Mahmud referred, talks about the death of a candidate before an election.

“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.”

However, in the current Kogi case, the poll already commenced and was almost concluded.

Another constitutional lawyer, Jiti Ogunye, called on INEC to continue with the supplementary election in the state and declare a winner.

He insisted that it would be hasty for anybody to call for the cancellation of the election because of the demise of Mr. Audu.

He said, “The way forward is that the election will be concluded and a winner will be declared. One can hastily opine that the election will have to be cancelled because Audu, who was a leading candidate, is dead and that the election be conducted afresh.

“But Audu and Wada are not the only candidates in the election. The parties that were involved are more than the APC and the PDP and by law; no governorship candidate can emerge without a deputy governorship candidate. It is a joint ticket and the party is also involved and that is why in an election petition challenging an election, the candidate and the party can sue.

“For instance, in Ekiti state, Fayemi said he has accepted the result of the election but the APC said no and when to the tribunal. There is a shared destiny between the party, the deputy governorship candidate and the governorship candidate.”

He argued that Mr. Audu passed on when the election had been conducted and not on the eve of the election which could have warranted postponement as indicated in law.

“He didn’t die on the eve of the election to warrant a postponement because the Electoral Act and the constitution allow for the postponement of election if the candidate of a political party dies and provides for the substitution of a candidate,” he argued.

“But in this case, the election has been conducted, certain results have emerged, some results have been cancelled and INEC has declared a supplementary election.

“Because it is not given that if the supplementary election will be conducted, the APC and Audu win because the reason INEC gave for not declaring the result and planning to have a supplementary election is that the number of cancelled votes, put at over 49,000 exceeds the margin of votes between the two leading candidates such that it would affect the outcome of the election.

“So it would be reductionist to assume that if the supplementary election were to be conducted, Audu would win. If Wada were to win, what would happen? Would we still say the election should be cancelled?

“The point is that although the election has not been concluded, if you look at what happened in Adamawa state in 1999 when Atiku Abubakar was elected a governor and thereafter, Obasanjo picked him as a vice presidential candidate thereby making his position vacant which resulted in a legal battle.

“The Supreme Court in that case held that it the deputy governor-elect will step into Atiku’s position and that no new election was required. INEC in that instance was arguing that the governor-elect was not dead but was no longer available and the Supreme Court countered that argument.

“In the present case, since the winner has not been declared and the certificate of return has not been issued, Mr. Ogunye argued that there is no clear difference with what happened in Adamawa state.

“The election can’t be cancelled at this time because Audu is dead. He didn’t die on the eve of the election but when the election was almost concluded. What is called for is a sober acceptance of the law without drama and insistence that there is going to be a constitutional crisis,” he cautioned.

However, Sebastian Hon, a Senior Advocate of Nigeria, SAN, said he would not comment on the matter since he is a party to a similar case at the Election Appeal Tribunal in Jos.

“I wouldn’t want to comment on the issue and the reason is that I am involved in the Plateau state governorship election petition,” said Mr. Hon.

“I am representing the governor and the PDP candidate (who is challenging the governor’s election also died). It is a similar issue and I wouldn’t want to commit myself anyhow.

“In spite of the death of Pajok, the PDP has appealed and so it is not fair for me to talk on the matter as it were.”

Other commentators have spoken of the possibility of utilising the Supreme Court ruling that made Rotimi Amaechi the Rivers State Governor in 2007 wherein Nigeria’s apex court ruled that it was the PDP that was presented on the ballot and that won the election; and that having declared Mr. Amaechi the true candidate of the PDP, he should be sworn in as governor.

Mr. Amaechi subsequently replaced Celestine Omehia who had occupied the seat having been the one the PDP initially recognised as its candidate in the election.

As at the time of publishing this report, INEC, the APC, and the PDP were yet to offer any opinion on what they believe should be the fate of the Kogi governorship election held on Saturday.