My silent prayer after my friend broke the news of Prince Abubakar Audu’s death to me on whatsApp, was that it would turn one of those wolf cries by those I call busy body mushroom bloggers. But in a bid to substantiate his claims, he came up with screen shots of credible sites and blogs. At this point I was left with nothing but to philosophize on the ephemeralness of life. I reminded myself of one of my lines that “this breath may just be my last”. While I felt pity for the Audu’s, the government and good people of KogiState and as well pray for the needed fortitude to bear the loss, I, in no time began receiving calls from friends and associates demanding for my opinion on the legal implication of the circumstance. At that point, having not had a fresh consultation on thespecific laws on the subject, I had to make do with the reserved idea on the matter in expressing my opinion. The opinion barring any superior legal argument, after due consultation, appears the exact position of the law.
The legal issue in vogue is the position of the law, when a substantive candidate in an election dies during the holding of that election. Opinions would necessarily be divided between two lines to wit:
- That the running mate be made to assume the position of the demised candidate; or
- That a fresh election be conducted, having regard to the procedures outlined in the Electoral laws.
For the proponents of the earlier view, their argument would be that, since they ran on a joint ticket, it will be left for the running mate to be sworn in.
The most convenient port to sail from in an issue as this, is the Constitution of the Federal Republic of Nigeria 1999 (As amended); being the captain of the gamut of our laws. For reason of aptness, consideration shall be had of section 181 of the Constitution. It provides:
- “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”
The above perhaps, is what informs the opinion of the proponents of the former view. In sharp deference however, note must be taken of the operative phrases of “duly elected” and “dies before subscribing the oath of allegiance and oath of office”. In simple terms, the provision invariably emphasizes on the time of death, being after a due election and before being sworn in as a governor.
Such reasonable question as “when is a person deemed to have been duly elected” will then follow. Again, recourse is had to Section 179 (2) of the Constitution. In interpreting when a candidate will deemed to have been duly elected, it states that-
“a candidate for the office of governor of a state shall be deemed to have been duly elected where there being two or more candidates-
(a) He has the highest number of votes cast at the election; and
(b) He has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the state.
By the further implication of section 27 of the Electoral Act, only the Independent National Electoral Commission (INEC), through its officers, has the power to announce a candidate as having won any election; subject however to the jurisdiction of Courts and Tribunals.
As straight as the instant case would have been if INEC had before the death, declared Abubakar Audu the winner Of the Kogi election, news however emerged that election had been declared inconclusive. To this extent, no candidate of the election under consideration could have been deemed as already duly elected, and for which reason, Section181 of the Constitution becomes inapplicable in the circumstance.
Another provision worthy of consideration is Section 36 of the Electoral Act. It provides that if after the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Resident Electoral Commissioner (in the instant case),shall countermand the polling which the deceased candidate was meant to participate and the commission shall appoint a convenient date for the election within 14 days. This provision would have in all fours been considered the saving point. Alas, this will not be the case, as the time of death again raises another distinguishing element. Had Aududied before the commencement of this election, then the Resident Electoral Commissioner of Kogi State would have been under legal obligation to postpone the election to another convenient date within 14 days. During such time, the party would beunder an obligation to as a matter of internal arrangement nominate another candidate for the election. Unfortunately, this circumstance is not the case.
So many other legal factors informs the position that the Deputy may not be in the right position to assume the votes accredited to Abubakar Audu. The Supreme Court authority of ROTIMI AMAECHI v. INEC which used to be the law that the political parties in an election is the subject of the election and not the candidate who stood the election, has been overruled. Following the amendment to the Electoral Act, the Supreme Court overruled itself in the latter case of CONGRESS FOR PROGRESSIVE CHANGE & ANOR V. HON. EMMANUEL DAVID OMBUGADU & ANOR (2013) LPELR-21007(SC). While interpreting Section 141 of the Electoral Act, the Court held that parties do not contest, win or lose election directly; but that they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting. Ngwuta JSC, expressly stated that the National Assembly has by section 141 of the Electoral Act, set aside the decision of the court in AMAECHI v. INEC (2008) 5 NWLR (Pt 1080) page 227 at 296. It is for the reason that it must be observed that notwithstanding the fact that both Abubakar Audu and AbiodunFaleke contested under a joint ticket, while Audu contested as the governor, Faleke only contested as a deputy and was being voted as such.
Although it is conceded that the circumstance poses some novelty to our laws, it only appeals to legal reasoning that the needful for INEC in the circumstance is to issue directions as to the conduct of a fresh election and to direct that parties nominate candidates in line with the Electoral Act.
Equally considering the triteness of the law that the government cannot operate in vacuum, the question as to who acts upon the expiration of Captain Idris Wada’s term also becomes pertinent. It is my view that the incumbent Speaker will so act, and upon the inauguration of a new Assembly, the new Speaker will also succeed the incumbent speaker both as the speaker of the House of Assembly and the Acting governor of the State.
Akintola Makinde is a legal practitioner and a public affairs analyst. He writes from Abuja.