How To Resolve The Kogi State Constitutional Conundrum

By Inibehe Effiong

The sudden death of Prince Abubakar Audu, the governorship candidate of the All Progressives Congress (APC) in Kogi State, on Sunday, 22nd November, 2015 has undoubtedly ignited a constitutional crisis. The tragic news which was first published by SaharaReporters has instigated controversy on what will be the possible legal implications or consequences of his death. 

*Audu

Among the issues arising from the death of Prince Audu are the following:

1. Whether the running mate to Prince Audu and the APC deputy governorship candidate can assume the position and status of the deceased as the candidate of the APC;

2. If the question in 1 above is answered in the negative, can the APC substitute the deceased as its governorship candidate; and

3. Whether it is legally permissible in the circumstance for the Independent National Electoral Commission (INEC) to cancel the inconclusive election of Saturday November  21st 2015 and conduct a fresh throughout Kogi State.

This is unarguably a novel case. This is the first time in the course of a democratic transition that a validly nominated candidate of a political party in Nigeria will die after an inconclusive election but before and without paricipating in the supplementary election. It is unprecedented. The result is that there is no precedent that can be referred to which could aid in the resolution of the present case.

*Mahmood Yakubu, INEC Chair 

The three issues formulated above are not mutually exclusive. I will now proceed to address them seriatim.

On issue one, there is no argument about the fact that a person nominated as running mate with a Governor or Governor- Elect, who was DULY ELECTED has the constitutional right of succession in the event of death, permanent incapacity, resignation or removal of the Governor or Governor-Elect. This proposition is well entrenched in both judicial and statutory authorities.

However, there are only two categories of persons/running mates that are entitled to this right of succession.

The first category is a Deputy Governor elected on a joint ticket with the Governor. Section 191 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), hereinafter referred to as the Constitution, provides as follows

"The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the Governor from office for any other reason in accordance with section 188 or 189 of the Constitution."

There are an avalanche of examples of Deputy Governors in Nigeria who had automatically assumed the office of Governor following the death or impeachment of their governors'.

The second category arises where a person DULY ELECTED as the Governor dies before subscribing the oath of allegiance and oath of office. That is, where a Governor-Elect dies before his swearing in. In such situation. The person elected with him as Deputy Governor (his running mate/deputy governor-elect) shall be sworn in as the governor. The authority for this is Section 181 (1) of the 1999 Constitution which prescribes thus:

"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." (capitalized for emphasis).

The relevant question is whether any of the two categories above is applicable to the present case in Kogi State. The answer is clearly in the negative. The reasons are obvious.

Section 179 of the 1999 Constitution stipulates two mandatory conditions that a candidate must satisfy before he/she is deemed duly elected. Firstly, the candidate must score the highest votes cast at the election. Secondly, the candidate must obtain not less than one quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State.

Based on the results declared by the Returning Officer, Emmanuel Kucha (Vice-Chancellor of the University of Agriculture, Makurdi), Abubakar Audu of the APC scored 240,867 while Idris Wada of the Peoples Democratic Party (PDP) scored 199,514 votes.

According to Mr. Kucha, the margin of votes between Messrs Audu and Wada is 41,353. And that the election was inconclusive because the total number of registered voters in 91 polling units, in 18 local government areas, where election was cancelled is 49,953.

That figure is higher than the 41,353 votes with which Mr. Audu is ahead of Mr. Idris Wada of the Peoples Democratic Party (PDP). The returning officer in compliance with Sections 26 and 53 of the Electoral Act refused to make a return until supplementary election is held in the areas where election were cancelled. INEC is not allowed by law to make a return if the number of registered voters in the areas that elections have either been postponed or cancelled can affect the outcome of the election. 41, 353 cannot be greater than 49, 953. Whether it is possible for Mr. Wada to garner is a political question.

The law does not operate based on political calculations and conjectures. Only a supplementary election can legally determine the ultimate winner of the Kogi State governorship election. It would have been wrong for INEC to declare a winner as canvassed by some commentators without allowing the 49, 953 registered voters in the 91 polling units to exercise their constitutional right of franchise. That would have afforded the aggrieved candidates the right to have the election nullified by the Election Tribunal.

From the foregoing, the deceased APC candidate Abubakar Audu was not duly elected as the Governor of Kogi State in the governorship election held on Saturday 21st November, 2015. Therefore his running mate cannot be sworn in as the Governor. This argument has become an academic exercise since INEC has already declared the election inconclusive and indicated its intention to conduct supplementary governorship election in the 91 polling units where elections were cancelled.

Under the current constitutional regime, a Governor, Deputy Governor, Governor-Elect or Deputy Governor-Elect cannot emerge through an inconclusive election. The summary on issue one is that Section 181 (1) and 191 of the Constitution are not applicable to Hon. James Abiodun Faleke, the running mate to the late Prince Abubakar Audu. He cannot be sworn in as the Governor of Kogi State since Prince Audu had not been elected Governor before his death owing to the fact that the election is inconclusive for the reasons stated earlier.

On the second issue, the law on the substitution of candidates has evolved over the years. A brief history is an apposite.

Under the repealed 2002 Electoral Act, the right of political parties to substitute candidates was not restricted. This led to series of litigation candidature of political parties. By Section 34 (2) of the repealed 2006 Electoral Act, substitution of candidates by political parties was allowable only if a political party gives "congent and "verifiable reason" for seeking to substitute a candidate whose name had been submitted to INEC. The cases of Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 and Ugwu v. Ararume (2007) 12 NWLR (Pt. l048) 365 were principally decided by the Supreme Court based on the failure of the political party -the PDP, to give cogent and verifiable reason for seeking to substitute its candidates in the 2007 governorship elections in Rivers and Imo States, respectively.

However, the current position of the law on substitution or change of candidate is encapsulated in Section 33 of the Electoral Act 2010 (as amended). It provides as follows:

"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." (capitalized for emphasis).

Also of relevance to the issue of substitution of candidate by reason of death is Section 36 (1) of the Electoral Act. It states thus:

"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."

The combined effect of Sections 33 and 36 (1) reproduced supra offers a remedy to the constitutional crisis arising from the death of Mr. Abubakar Audu. It is humbly submitted that the APC has the right in law to substitute its deceased governorship candidate in Kogi State. I will elucidate.

While Section 33 allows a political party to substitute a dead candidate, Section 36 (1) provides for the period and consequential reliefs that should follow the substitution. Agreed that the death envisaged by Section 36 (1) must occur after the time for the delivery of nomination paper and before the commencement of the poll. Section 31 of the Electoral Act mandates political parties to submit names of candidates not later than 60 days before election. The APC had complied with this provision. The late Mr. Abubakar Audu died after his name had been submitted.

The next question is: did Audu die before the commencement of poll? On the surface, one may answer in the negative. However, looking at the later part of Section 36 (1) of the Electoral Act quoted supra, it is express that the poll envisaged is "the poll in which the deceased candidate was to participate." That is the exact wordings of the Act.

Audu was supposed to participate in the supplementary poll since the first poll did not result in the return of any candidate. Any interpretation of the expression "the poll in which the deceased candidate was to participate" that excludes 'supplementary poll' will lead to absurdity and injustice.

The latinian maxim 'Ubi Jus Ibi Remedium' (where there is a right there is a remedy) espoused by the Supreme Court in the celebrated case of Aliu Bello v. Attorney General of Oyo State (1986) 5 NWRL (Pt. 45) 828 supports this position. Death is a natural occurrence. The death of a candidate is beyond the control of a political party. The law recognises the right of a political party to sponsor a candidate for election and equally provides for remedies where a candidate dies either before or after the conclusion of polls.

Where a candidate dies before the commencement of polls, Section 36 (1) of the Electoral Act allows the political party that sponsored the deceased candidate to substitute him/her. But where the death occurs after the conclusion of polls but before the deceased candidate subscribes the oath of allegiance and oath of office, Section 181 (1) of the Constitution mandates the running the running mate of the deceased candidate to be sworn in as the governor.

I will now address the last issue, that is, whether INEC in the circumstance can countermand (cancel) the Kogi State governorship election held on Saturday November 21st 2015.

The power of INEC with respect to the cancellation of election is very limited. The law allows INEC to postpone or cancel election in only two situations, namely:

1. postponement due to violence, insecurity, natural disasters or other emergencies; and

2. cancellation due to over voting.

In respect of the former situation, Section 26 of the Electoral Act gives INEC the power to postpone election if "there is reason to believe that a serious breach of the peace is likely to occur" or where "it is impossible to conduct the elections as a result of natural disasters or other emergencies'. For the latter situation, Section 53 of the Electoral Act mandates INEC to cancel and void elections in any polling unit where there is over voting.

Except for the two situations stated above, INEC has no power to interfere with elections. Only a court of competent jurisdiction or an Election Tribunal can interfere with an election which is liable to be viatiated by other circumstances. It is instructive to note that elections in the 91 polling units in Kogi State where supplementary elections are to take place were postponed or cancelled either due to insecurity or over voting.

There is no provision in all of the 320 sections of the Constitution or the 158 sections of the Electoral Act that empowers INEC to nullify, cancel or void either a concluded election or an inconclusive election. The death of a candidate of a political party does not confer any power on INEC to set aside either a concluded or an inconclusive election. The law has already catered for such eventuality by allowing for the substitution of the deceased candidate in the case of an inconclusive election.

Like the Rock of Gibraltar, the inconclusive election held on Saturday, 21st November, 2015 in Kogi State cannot be altered or interfered with by INEC. The Supreme Court had settled in the Amaechi's case supra that votes casted at an election stand to the credit of political parties and not the candidates. The law places the party above its candidates. Although a party cannot participate in an election without sponsoring a qualified and living candidate, the votes casted in favour of a party cannot be invalidated merely because the candidate of the party has died as there is provision for substitution of the deceased candidate as earlier discussed.

Although Mr. Abubakar Audu has died, the party that sponsored him - the APC, is still alive. The votes belong to the APC and not the deceased. That is the position of the law in Nigeria today.

In the case of INEC vs Boni Haruna, it would be recalled after winning the 1999 governorship election in Adamawa State, former Vice President Alhaji Atiku Abubakar, was nominated by former President Chief Olusegun Obasanjo as running mate. INEC refused to swear in Mr. Boni Haruna who was the running mate of Mr. Atiku Abubakar and rather opted for a fresh election. This led to fierce litigation.

At the Supreme Court, it became necessary for the apex court to interpret Section 45 of the then Decree 3 of 1999 (now the 1999 constitution) which provides, as it were, for the conditions under which a Deputy Governor may be sworn in as Governor. According to the said Section, a Deputy Governor shall only be sworn in on the occurrence of such eventualities as  death, resignation, impeachment, permanent incapacity or removal for any other reason.

Degree 3 never contemplated such abandonment as happened in Atiku's instance. However, the Supreme Court, in a split decision, felt a need to advance a remedy to the constitutional crisis in the interest of justice.

The Learned Justices of the Supreme Court, per UWAIS CJN (as he then was) found succor in the dictionary definition of the word 'death' which according to his Lordship, finds synonyms in, breath one's last, deceased, depart, expire, finish, decay, decline, disappear, dwindle, ebb, end, fade, lapse, vanish, wane, wilt, wither, fizzle out and finally decided that even though Atiku was biologically alive, his renunciation of his mandate as Governor-Elect to run with Chief Obasanjo as Vice President, in effect, had the same consequence as if he had died within the contextual meaning of the dictionary definition of death given above.

The Supreme Court allowed Mr. Boni Haruna to succeed Atiku Abubakar notwithstanding the absence of express provisions in Decree 3 enabling that verdict.

Although the Kogi State governorship election is inconclusive and Section 36 (1) of the Electoral Act allows for substitution if the death occurs before commencement of poll, it is humbly submitted that the word "poll" in this context includes supplementary poll. The rights that accrues to a political party that participated in an inconclusive election cannot be extinguished merely because of the death of its candidate as where there is a right there must be a remedy.

A contrary interpretation will mean that INEC will have to cancel the entire election in Kogi State and conduct fresh election. Such interpretation will do violence to the letters and spirit of Sections 33 and 36 (1) of the Electoral Act and occasion a miscarriage of justice. That cannot be the intendment of the law. In any event, INEC does not have the power to do so for the reasons stated earlier.

In conclusion, the APC should immediately substitute its deceased governorship candidate with another person and communicate same to INEC in writing. INEC is advised to proceed with the supplementary elections in the outstanding 91 polling units. The supplementary elections must be held within 14 days from Sunday, 22nd November, 2015 in line with Section 36 (1) of the Electoral Act after which the candidate that scores the highest overall votes should be returned elected.

Inibehe Effiong, a Legal Practitioner, could be reached with inibehe.effiong@gmail.com