The sudden demise of the All Progressive Congress (APC) gubernatorial candidate, Audu Abubakar in Kogi state on Sunday has thrown up more questions than answers with lawyers across the country stating that there is a lacuna as the constitution did not make provisions for such an occurrence.
According to them, there is an obvious oversight and grave omission of such circumstances in the Nigerian constitution and to move forward, the doctrine of necessity may have to come in.
According to the former Chairman of the Nigerian Bar Association, Ikeja chapter, Onyekachi Monday Ubani, the matter is a serious one considering that there are no constitutional provisions for such matters.
“This is a serious one that the constitution did not envisage. There are no precedents to such an occurrence and if we talk about the party choosing another candidate, we also have to consider that the period for selection of candidate has elapsed; there is a time limit for such things. But I think that in this case, the deputy will have to go for a fresh election.
“If we go by the Supreme Court’s ruling on Rotimi Amaechi’s case where it was held that the party and not the candidate is the beneficiary of elections. So I believe the deputy will have to go for elections and if he wins, he will now choose a deputy.
“This is a serious omission and the law needs to be amended quickly,” Ubani concluded
Another human rights lawyer, Ikechukwu Ikeji Esq. also aligned with this. According to him, there are no known provisions for this scenario. “There are no laid down rules or provisions for this, the constitution never imagined such an occurrence, the only similar provision to this is Section 36 of the Electoral Act which indicates that if a candidate dies before the polls, INEC should cancel and postpone the election for 14 days.
“But now that the election is already underway, the situation is different. In my secular view except further research contradicts what I have said, there should be a fresh election with the deputy or they should go to the Supreme Court for interpretation.”
Also speaking, Barrister Olusayo Adeleye stated that there are no provisions for such and consequently, there will have to be a fresh election with Honorable James Abiodun Faleke, the deputy stepping in as the gubernatorial candidate.
Barrister Kayode Ajayi also stated that since there are no provisions in the constitution, the APC will have to look for another candidate. The doctrine of necessity comes in since the vacuum needs to be filled. The law didn’t envisage this but there must be a way out. Remember when Atiku Abubakar as governor was chosen to be the Vice President, his deputy, Bonny Haruna stood in as the Governor and selected another deputy.
Barrister Taoheed Asudemade was also of the same opinion. He stated that since there are no provisions, the APC will have to look for another candidate while INEC will conduct another election. His death has nullified the one that is on-going.
Speaking on the issue yesterday, Second Republic politician and legal icon, Dr Tunji Braithwaite said the demise of Prince Audu calls for a fresh governorship election in Kogi.
His words: First, it is sad that Audu died. Our thoughts are with his family at this time. However, coming to mankind, life and activities must go on. If the front runner in an election drops dead, the next person with higher votes cannot automatically be declared winner.
‘’The deceased according, to INEC scored higher votes. Audu’s death calls for another election. The incumbent, Capt Idris Wada will continue as governor until another election. There must be another election.’’
According to Barr Bisi Adegbuyi, a stalwart of the Afenifere Renewal group, ARG, ‘’There is nothing other holding another election. APC should be allowed to present another candidate. Since the election has not been concluded, the deputy governorship candidate cannot take his place, he is not the candidate,’’ he said.
However, Chief Olorunfunmi Basorun, Second Republic politician and Secretary to the Lagos State Government under Governor Lateef Kayode Jakande, said the re-run polls in 59 polling units should be concluded and the winner declared by INEC.
Reason: ‘’It is the party that matters. The party sponsored the candidates. In 1999, when Alhaji Atiku Abubakar was nominated as Vice presidential candidate, although the Adamawa governorship election had been concluded, the deputy governorship-elect, Boni Haruna, stepped in. So, the INEC should conduct the election in the remaining polling units and declare the winner.’’
In his reaction, Mr Norris Quakers, SAN, said since the Nigerian Constitution did not envisage what has happened, it makes it tricky and dicey.
He however said, “In my thinking, if you read sections 36, 39 and 40 of the Electoral Act as amended, I think the Independent Electoral Commission will have to conduct elections in those areas where they are inconclusive. What the party that was affected needs to do is to allow the deputy governorship candidate run as its governorship candidate while a new deputy governorship candidate is picked”.
On his part, Chief Emeka Ngige, SAN, said: ‘’There is no lacuna. In Adamawa, after Obasanjo picked Atiku, who had already won the governorship election in the state to be his running mate, the opposition led by Bala Takaya kicked against the decision to pick Haruna as a replacement for Audu. The opposition went to the Federal High Court to stop it and the matter dragged to the Supreme Court that it was right for Haruna, who was Abubakar’s running mate to become the governor. The opposition demanded for fresh election but that was rejected by the Supreme Court. ‘’However, this is a peculiar situation. What is happening now is a combination of a lot of issues. In Rotimi Amaechi’s case the court ruled that it was the party that owned the ticket. It also said that the party owned the votes. So, such a scenario may play up this time again. The situation we have at hand is called a reccondite situation in law. And it will require a lot of interpretations. I foresee a very stormy and testing period for INEC. The judiciary will also be put on trial.
‘’In Amaechi’s case, he had no running mate but since the court had ruled that the party owned the ticket, Ikuru, who was Omehia’s deputy, became his deputy. In my opinion, I will say that the APC owns the ticket. INEC should go ahead with the elections and conclude it because the votes belong the the APC.’’