Showing posts with label An Inconclusive Election And The Law. Show all posts
Showing posts with label An Inconclusive Election And The Law. Show all posts

Monday, November 23, 2015

Nigeria: Death, An Inconclusive Election And The Law

 By Kennedy Emetulu

If, as is likely, Prince Abubakar Audu, the gubernatorial candidate of the APC in the ongoing Kogi election has passed on, then a legal question to be decided by INEC and the courts is unquestionably before us, because the Constitution and the Electoral Act seemingly make no provisions for death of a candidate at this point of an inconclusive election. It’s the sort of challenge that the new INEC leadership under  Professor Mahmood Yakubu would not have prayed for.





















*Late Abubakar Audu 

Let’s consider where we are. We have had an election held on Saturday, November 21, 2015. INEC has come out to announce that the election is “inconclusive”, because, according to the Returning Officer, Professor Emmanuel Kucha, the collation of results from the 21 local government areas of the state showed that the cancelled votes were higher in number than the margin between the leading candidate, Prince Abubakar Audu of the APC and the PDP candidate, Captain Idris Wada who was the runner-up. The Commission therefore decided on a supplementary election to determine the winner, but with no date fixed yet. So, in a de facto and de jure sense, the election is still ongoing. But then, something happened after this decision was taken. One of the candidates, Prince Abubakar Audu reportedly died before the conclusion of this election or before the proposed supplementary election that should have concluded the whole process.

So, what does our law say? Here is what the Constitution says:

Section 181(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”.

Clearly, this provision does not apply to the situation on the ground, because Prince Abubakar Audu was not the Governor-Elect before he died. So, Abiodun Faleke, his running-mate was not elected the Deputy-Governor and therefore cannot be sworn into office in line with Section 181(1).

 How about the Electoral Act 2010 (as amended)? Here is what it says:

Section 36 (I): “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”.

Again, technically speaking, this section does not seemingly apply to the situation we are in. This is because the poll has already commenced, but is yet to be concluded before the candidate died.

Further, with regard to the change or substitution of a candidate by a political party, the Electoral Act in section 33 says: “A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 32 of this Act, except in the case of death or withdrawal by the candidate”. Section 32 (1) of the Electoral Act referred to above says: “A candidate for an election shall be nominated in writing by such number of persons whose names appear on the register of voters in the constituency as the Commission may prescribe”. So, what section 33 is saying is that a political party cannot substitute the name of anyone duly nominated under section 32(1) with another name or candidate except in the case of (1) death and (2) withdrawal.