The unexpected death on Sunday afternoon of Abubakar Audu, the All Progressives Congress candidate in the Kogi State governorship election raises some legal and political issues.
The death occurred after the main election and the declaration by the Independent National Electoral Commission that a further (supplementary) election would be held to confirm who won the election. That makes it difficult to situate this scenario on precedent with any previous circumstance, case law or legislation.
There is therefore a legal lacuna that must be addressed. The best way to address this situation is to approach the Supreme Court for interpretation. Asking the opinion of the Attorney-General of the Federation and Minister for Justice is not a wise decision. He, after all, is a partisan politician, being a senior member of the APC. Asking the Supreme Court for interpretation would be akin to what happened in 1999 when the same court was approached. In that instance, INEC attempted to conduct a fresh governorship election in Adamawa State following Atiku Abubakar’s election as Vice-President and thus abandonment of the governor’s seat he had won a few months earlier.
There have been various arguments, legal, political, sentimental etc. on this issue. In arriving at a proper decision, one way or another, the court, I opine, should be guided by the golden rule of interpretation in order to give efficacy to the intendment of the framers of our laws and do equity to all concerned. Here are some of the factors I think the decision makers should focus on to resolve the issue.
One issue thrown up is that the election itself is inconclusive, as further election has been called in the locations where elections were not held last Saturday. It must be understood however that a “supplementary election” is deemed to have occurred the same day as or be a continuation of the original election, since it is merely meant to complete the election. That is why parties cannot be allowed to introduce new candidates in a supplementary election.
Thus, in 2011, the supplementary governorship election in Imo State was held outside the last day allowed for election to the office of governor. When that case went to litigation, the court held that it was not a fresh election but part of the main election earlier held within the allowed period.
In resolving this issue, there is a need to be pragmatic. The court in the Atiku Abubakar case against the Olusegun Obasanjo government held that in the election to the office of president or state governor, there is a single ticket held by the presidential or governorship candidate, jointly with the given running mate who is expected to become either the vice-president or deputy governor where they become victorious.
Why does the law require joint candidature of candidate and running mate? I believe it is meant to ensure that the running mate steps in where the main candidate is unable to continue. I have heard it said that a person cannot become a governorship candidate if he/she did not go through party primaries. However, in 1999, Boni Haruna did not go through primaries to be a deputy governor candidate but when Atiku Abubakar, the governor-elect, abdicated to become the VP, Haruna, as his running mate, was sworn in on the orders of the Supreme Court, even though INEC erroneously wanted to conduct a fresh election.
If this matter goes to the Supreme Court for determination, I expect the justices to give meaning to this intendment of the framers of the constitution, which I think, was that a running mate should become a natural substitute and beneficiary of the joint ticket in the event the principal ticket holder is not available.
It must further be stressed the 240,867 votes so far garnered by the APC at the end of counting last Saturday were polled jointly by Audu and his running mate, James Faleke. To the extent that we are unable to distinguish which of those votes were earned on account of preference for only Audu, or Faleke, only the APC or a combination of those different factors; one or any of the three (Audu, Faleke or the APC) can lay claim to all of the votes already garnered. This is because if a property is in joint ownership by two persons, on the demise of one, it follows that the surviving party lays claim of the joint ownership exclusively. Thus, it would be unconscionable to deny any of them the fruits of such votes.
Yet another factor to consider is that the Supreme Court had held in the Chibuike Amaechi case in 2003 that it is the party, not the individual that is a candidate in an election. That explains why the ballot paper has the name and symbol of the party, not the individual.
On the basis mentioned above, we can assume that the APC is still in the race and is stuck with Audu’s running mate as the surviving co-owner and beneficiary of the ticket. That means that, should the APC win the election after the supplementary voting, it is Faleke, as running mate to the late Audu, who should be deemed the governor-elect.