By Kennedy Emetulu
The first
part of this piece was written immediately after the death of the APC candidate in the Kogi
governorship election, Prince Abubakar Audu was first reported. In that piece,
I expressed the view that despite the fact that there is seemingly no clear
constitutional provision or provision in the Electoral Law 2010 to deal with a
situation where a candidate dies during an election, INEC should do a purposive
reading of sections 33 and 36(1) of the Electoral Act to provide a simple,
fair, just and lawful resolution of the problem. Here is how I stated it:
“…I think, even
though it’s not a court of law, INEC should adopt a purposive approach to the
interpretation of the statute, because that is likely how the court will view
it if the matter comes before it. Should it take the matter to court for
interpretation first before it continues with the election? That is a decision
it should take in consultation with its legal officers, but if I were to advise
them, I’d say no need, because the election is already on and the public policy
argument must favour a quick and favourable conclusion, so as not to extend the
tenure of the incumbent unduly, especially where he may likely not be the one
ultimately elected. INEC must always act in the spirit of allowing the people
to choose their Governor as at when due. It is the essence of choice in a
democracy.
“A
purposive reading of the Electoral Act will look at the provisions of Sections
33 and 36(1) and conclude that the mischief the Electoral Act is trying to cure
with these provisions is to avoid a situation where death of a candidate
frustrates the election. So, the oversight of not specifically considering what
happens when a candidate dies during election should not take away the justice
and fairness provided in the law for all situations where a candidate dies before
or during the poll, especially where there is no material change in the
situation between the time before the poll and during the poll when death
occurred”.