Topical Matters Arising From The Conduct Of Governorship Elections In Kogi State, Way Out

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James-Faleke-and-Abubakar-Audu

INTRODUCTION:
The election conducted into the Office of Governor of Kogi State on 21/11/15 is such as will not be forgotten in a hurry. The tension generated by the election campaigns, heated debate reached a climax with the declaration of the election as being inconclusive by the Independent National Electoral Commission (hereinafter referred to as INEC). While permutations were being made as to the appropriateness of this declaration by INEC, news filtered in that the flamboyant and irrepressible candidate of the All Progressive Congress (APC) had passed on. The cumulative effect of the INEC declaration and passing away of the great Iroko, the Aduoja Attah Igala is that it rendered inchoate, the celebration of the All Progressive Congress’ electoral victory.

Vide its Public Notice dated 24/11/15; INEC has declared its intention to continue with the election into the Office of Governor of Kogi State which it commenced on 21/11/15 by conducting supplementary elections in ninety-one (91) hitherto cancelled polling units on 5/12/15. INEC has further granted the APC, the leverage to fill the vacancy created by the death of its candidate. INEC’s decision has generated ripples both in legal circles and in the Court of Public Opinion. The intention of this writer is to make a contribution to the ongoing discourse, with the intention that it will help resolve the seeming crisis. This Contribution will not determine who the APC candidate is but will be made of the writer’s personal opinion.

BRIEF FACTS:
Election conducted into the Office of Governor of Kogi State on 21/11/15 was contested by not less than twenty-two (22) political parties. The leading political parties are however, the Peoples Democratic Party (PDP) and the All Progressive Congress (APC).

On 22/11/15, INEC commenced declaration of results of the said election. With the votes declared so far, the candidate of the APC, Alhaji Abubakar Audu, leading the polls with 240,867 votes while the candidate of the PDP, Alhaji Idris Ichalla Wada polled 199,514. Election conducted in 91 polling units were cancelled.

In its view, INEC was of the opinion that total number of registered voters (49,000) was more than the difference of about 41,000 votes between the votes garnered by the leading APC and the votes garnered by the PDP. It seeks to conduct supplementary election in the affected polling units. Consequently thereafter, the demise of the Prince of the Niger, Alhaji Abubakar Audu was announced. Without seeking to be repetitive, it is still worthy to state that INEC has deemed it fit to go ahead with the said election with all candidates that participated in the said election but with an allowance given to APC to “fill the vacancy created by the death of its candidate”.

THE STATE OF THE LAW:
Several commentators have stated that the situation warranted by the sudden demise of Prince Abubakar Audu is a novelty. This stand is premised on the fact that the situation is not provided for by both the Constitution of the Federal Republic of Nigeria as well as the Electoral Act. A careful perusal of the relevant constitutional provisions as well as those of the Electoral Act is thus warranted.

Section 181(1) of the 1999 Constitution of the Federal Republic of Nigeria (as altered, hereinafter referred to as the Constitution) refers to where ‘a person duly elected’ as Governor dies before taking and subscribing to the Oath of Allegiance and Oath of Office or is unable to be sworn in for any reason whatsoever, the person elected with him as Deputy Governor shall be sworn in as Governor and he shall nominate a new Deputy-Governor with the approval of simple majority of the House of Assembly of the State.

It is clear that Section 181(1) of the Constitution is not ambiguous. It contemplates a situation where a person has been duly elected as Governor and another duly elected as Deputy Governor and the person duly elected is by reason of death or any reason whatsoever unable to take and subscribe to the requisite Oaths. The situation of Kogi State wherein the election in issue has been declared inconclusive by INEC is different from that contemplated by the said section of the Constitution as such to that extent is inapplicable.

Section 33 of the Electoral Act, 2010 allows a political party to change or substitute its candidate whose name has been submitted to INEC in the case of death or withdrawal by the candidate. Where this is applied to the situation in Kogi State, it may be said that the APC may be allowed to substitute its candidate in the event of death.

Section 36(1) of the extant Electoral Act however provides that where after the time for delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, INEC shall countermand the poll in which the deceased candidate was to participate and shall appoint a convenient date for election within 14 days.

A community reading of sections 33 and 36(1) of the extant Electoral Act will make it clear that what is contemplated therein is a situation where the candidate of a political party dies having been so nominated and nomination papers have been delivered to INEC but prior to conduct of elections. This interpretation removes the application of sections 33 and 36(1) of the Electoral Act from the realm of things as is obtainable in Kogi State. This considering the fact that election has been conducted generally in all polling units in Kogi State on 21/11/15 safe for the polling units cancelled for reasons as canvassed by INEC.

The seeming novelty of the situation in Kogi State was created by the declaration of election conducted into the office of Governor of Kogi State as being inconclusive. The correctness or otherwise of INEC’s decision in this regard is debatable and should of course in a sane clime be subject of litigation. This is because the declaration of result of election into the office of Governor of Kogi State, pursuant to the provisions of Section 69 of the extant Electoral Act is only subject to the provisions of Section 179 of the Constitution and not to any INEC Guideline or approved Manual. Application of the INEC approved Manual to extend the provisions of Section 69 as well as Section 179 of the Constitution to declare an election as being inconclusive thus appears to amount to the exercise of legislative powers by an administrative body.

Section 179 of the Constitution provides that where a candidate for an election into the office of Governor has the highest number of votes cast at the election and has not less than one-quarter of all the votes cast in each of the at least two-thirds of all the local government areas in the State, he shall be deemed to have been duly elected.
As such, where the candidate of the APC is deemed to have the highest number of votes cast at the election and has not less than one-quarter of all the votes cast in each of the at least two-thirds of all the local government areas in the State, he shall be deemed to have been duly elected. Section 179(4) of the Constitution allows for a run off/supplementary/second election, only where the candidate has not met the afore-stated conditions. INEC appears to be at fault in declaring the election into the office of Governor of Kogi State as being inconclusive.

In a resolution of the challenges raised by the sudden demise of the APC candidate, Prince Abubakar Audu, care must be exercised to note that the applicable laws are not restricted to the provisions of the Constitution or Electoral Act strict sensu. The applicable laws asides the Constitution and Electoral Act further include the Common law that is decisions that are judicially settled amongst others.

In A.-G., Fed v. Abubakar (2007), the Supreme Court enthused that the fact that the case at hand is a novel one will not occasion stagnancy in the society. Indeed, the great learned jurist, Aderemi, JSC (as he then was) enthused that no legal problem or issue must defy legal solution. As such, where a Judge is faced with a new situation which has not been considered before, by his ingenuity regulated by law, must say what the law is on that new situation. After all, law has a very wide tentacle and must find solution to all man-made problems.

A judicial decision that has been most referred to by most commentators is the case of Amaechi v. INEC (2008) where the Supreme Court held, per Oguntade, JSC (as he then was, reading the lead judgment) that Section 221 of the Constitution eliminates the possibility of independent candidacy in elections conducted in Nigeria. The Supreme Court thus held that the primary method of contest for elective office in Nigeria is between political parties. The Court however recognised the fact that a good or bad candidate may enhance or diminish the prospect of its party in winning. However, at the end of the day, it is the party that wins or loses election.

It is thus the law that on 21/11/15, the contest for the Office of Governor of Kogi State was neither between Prince Abubakar Audu nor Alhaji Idris Ichalla Wada but between the All Progressive Congress and the Peoples Democratic Party as well as about 20 other political parties.

It is on this strength that I will agree with INEC that the conduct of supplementary Election into the Office of Kogi State is the only option and not the conduct of a fresh election. I am not unaware that this position raises the question of who becomes candidate of the APC to conclude the said contest. I will hasten to react to the issue.

The candidate of a political party is conventionally elected or selected at the party primaries in line with the Constitution of the Political Party. Section 31 of the extant Electoral Act however provides that every political party shall not later than 60 days prior to the time appointed by INEC for election submit to INEC in the prescribed Form, the list of candidates it proposes to sponsor for the election. Upon receipt of same, INEC shall within 7 days of receipt of the personal particulars of the said candidate, publish same in the constituency where the candidate intends to contest.

It is trite and settled law that where a statute (Electoral Act inclusive) provides for the method of doing a thing, the prescribed method and no other may be followed.

The issue here now is not whether APC submitted the personal particulars of its candidate for the said election 60 days, prior to 21/11/15. The issue will be whether the provision of Section 31(1) of the Electoral Act applies to the conduct of supplementary election as INEC has determined to do in respect of the office of Governor of Kogi State come 5/12/15.

It is my humble opinion that the provision of Section 31(1) of the extant Electoral Act was already met by the APC prior to the conduct of the election on 21/11/15 and the said provision will not be applicable in the conduct of supplementary election. To further show that the provision of Section 31(1) of the extant Electoral Act is not always mandatory, Section 38 of the extant Electoral Act provides for extension of time for nomination of candidates and postponement of elections in the event of failure of nomination. While it is agreed that the issue in Kogi State is not the issue of failure of nomination, I however find it safe to anchor my opinion on this section to demonstrate that the issue of filing the name of candidate for an election 60 days prior to the election may not always be sacrosanct and the electoral umpire, INEC has some measure of discretion in terms of time within which nomination of candidate may be done.

However, going to the vexed issue of who flies the APC flag, a community reading of the provisions of Section 221 of the Constitution as well as Section 179 thereof will however reveal that while it is the political party that sponsors a political party, number of votes scored at the election is recorded in favour of the candidate and not the political party.

Applying this position to the situation in respect of the APC, it will appear that the votes scored were recorded in favour of the APC candidate and not the APC simpliciter. The issue then is who was/is the APC candidate at the said election.

Section 187(1) of the Constitution provides that a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor and who shall occupy the office of the Deputy Governor.

The candidacy of the highly respected Prince Abubakar Audu would have been invalid without the nomination of Prince James Abiodun Faleke (JAF) to run with him. It is thus my humble opinion that whilst it may be said that the APC jointly sponsored Prince Abubakar Audu and Prince Abiodun Faleke for election into the Office of Governor of Kogi State on 21/11/2015, the vote cast at the said election and preserved so far was constitutionally jointly recorded in favour of the duo of Prince Abubakar Audu and Prince James Abiodun Faleke. It is my further opinion (humble as it were) that in the conduct of supplementary election into the office of Governor of Kogi State, Prince James Abiodun Faleke (JAF) is inseparable from the total votes cast so far. To alienate him from the process may occasion loss of the total votes cast so far in favour of the APC.

Furthermore, having been nominated to make Prince Abubakar Audu’s nomination valid, the right of Prince James Abiodun Faleke to the total votes recorded in favour of APC so far becomes a constitutional right which even he (the APC inclusive) cannot waive.

It is not in my place to suggest to the APC as to who becomes its candidate in the forthcoming supplementary election into the office of Governor of Kogi State consequent upon the sudden demise of the respected Prince Abubakar Audu, my take on this issue however is that in compliance with the INEC directive to fill the vacancy created by its candidate, Prince James Abiodun Faleke’s constitutional right to the vote cast so far cannot be waived. This remains my humble opinion. I like to anchor here until either of the issues arising becomes a matter for the Court to determine.

May the sun of Kogi State never set!

– Progressive Lawyer