Audu's Death: Constitutional crisis looms as lawyers disagree on legal status of the inconclusive election

The death on Sunday of the All Progressive Congress (APC) candidate in the Kogi State governorship election, Alhaji Abubakar Audu, has thrown up issues that may require judicial interpretation of the courts on the legal status of a gubernatorial election in which a candidate dies before the declaration of results by the electoral commission.

While some lawyers, including Prof Itse Sagay and Mr. Olisa Agbakoba, both Senior Advocates of Nigeria (SAN), said the death of a candidate before the declaration of results or emergence of a winner renders the election inconclusive and mandates the conduct of a fresh election, others held the opinion that the election would have to be concluded and the party that wins, even when the candidate is dead, would have to be declared the winner.


Of paramount consideration for the Independent National Electoral Commission (INEC) will be the glaring fact that this is the first time a candidate will die midstream into an election, after it has started and before it was concluded with the declaration of a winner and losers.
This dilemma was not envisaged by the framers of the constitution or the Electoral Act, 2010 (as amended). All the constitution provides for is a situation in which a declared winner dies or is unable to be sworn into office after the election while the Electoral Act provides for a situation where the candidate dies after his/her nomination, but before the election.

Specifically, Section 181(1) of the constitution states: “If a person duly elected as governor dies before taking and subscribing to the oath of allegiance and oath of office, or is unable for any reason whatsoever 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.”

Section 36(1) of the Electoral Act states: “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.”

Also, Section 33 states that “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”.

In the Kogi election, however, INEC is confronted with a situation whereby voting has taken place, results have been released, but the poll was declared inconclusive owing to the number of cancelled votes in select polling units and wards in 19 local government areas of the state exceeding the margin of difference between the two leading candidates, thus necessitating supplementary elections in the affected polling units or wards.

In addition, the amended Electoral Act requires the name and the party of the candidate to be published on the ballot paper, effectively ensuring that the candidate supersedes the party on which he/she is contesting, an amendment made by the National Assembly in 2010 in response to the Supreme Court ruling in Chibuike Amaechi Vs. Celestine Omehia and the Peoples Democratic Party (PDP) in 2007, in which the court recognised the victory of the party in the Rivers State poll that year and declared Amaechi victorious despite his absence on the ballot.

Since INEC is required to publish the names of candidates on its ballot paper, if in the event of his/her death during the election and he/she is replaced by a running mate, can it really be said that the new candidate can take over the votes cast for the dead candidate? Can INEC really say that was the intendment of the Kogi electorate?

It is apparent that INEC would have to decide on the Kogi electorate, which clearly did not vote for anybody else other than Audu. In arriving at a decision, a fresh election seems like the most obvious scenario that would satisfy the yearnings of the voters of Kogi.

However, before it can arrive at a decision INEC, it was gathered, was already consulting with a battery of lawyers last night and is expected to continue its meeting with them in Abuja today.

According to a source, INEC and its lawyers will be looking at a number of scenarios, which may prove quite challenging to resolve and require it to go court to seek legal interpretation.

• Scenario one entails Audu’s running mate, James Abiodun Faleke, insisting on being declared the winner of the election.

• Scenario two would entail Faleke, backed by the APC, insisting on concluding the election with him as the governorship candidate of the party and being allowed to chose a running mate/deputy governorship candidate.

• Scenario three could see Faleke, backed by the APC, contesting as the candidate of the APC in a fresh election as the governorship candidate with a running mate.

• Scenario four would entail the outright cancellation of the Kogi governorship election by INEC and APC nominating fresh candidates to contest in the new poll.

• Scenario five could also see Governor Idris Wada of the PDP insisting on being declared the duly elected governor on the grounds that he cannot be blamed for the death of Audu and he is the next substantive governorship candidate left in the race, as opposed to Faleke who is a running mate.

In his remarks on the legal lacuna, Prof. Sagay said: “Obviously, the election has become inconclusive. If the person who scores the highest votes dies before being declared the winner of the election, in that type of situation, there has to be a fresh election, giving the party affected to provide a substitute.

Agbakoba was similarly inclined, stating: “The fact that the candidate is dead, invalidates the ticket,” arguing that “you need to have a person and a party to complete the ticket”.

He said the situation would have been different if the candidate had been declared the winner of the election before his demise. “The deputy would have been elevated to the position of the governor,” Agbakoba said.

When reminded of the Supreme Court ruling in the All Nigeria Peoples Party Vs Alhaji Atiku Abubakar, a 1999 case interpreted and given effect to this section of the constitution when it held that Mr. Bonnie Haruna, who was the running mate of Alhaji Atiku Abubakar who was elected governor, but was also elected vice-president before he was sworn in as governor of Adamawa State, was eligible to be elevated to position of governor without recourse to a fresh election.

But Agbakoba said the Atiku case would not apply to the Kogi case because there was no declaration of results. “The deputy governor would have been elevated to the position of the governor if results had been declared. They didn’t get to that point; they were on their way there,” he said.

On the other hand, Festus Keyamo, while admitting that the death of Audu had created a “strange and novel constitutional scenario”, he said it fits more into Section 181(1) of the constitution, “and as such James Abiodun Faleke automatically becomes the governorship candidate of the APC”.

In a statement he issued yesterday, he said: “This is because even though the election is inconclusive, votes have been counted and allocated to parties and candidates. As a result the joint ticket of Audu/Faleke has acquired some votes already.

“James Abiodun Faleke is as much entitled to those votes already counted as much as the late Abubakar Audu. He has a right to cling to those votes going into the supplementary election.

“There is only one problem, though. Who nominates Faleke’s deputy? Unlike Section 181(1) of the 1999 Constitution, he cannot approach the House of Assembly of the state to approve a nomination by him of a deputy.

“This is because, in reality, he is not duly elected yet. Therefore it is only reasonable to conclude that it is APC (Faleke’s political party) that should submit the name of a fresh deputy governorship candidate to INEC for the supplementary election.

“This is the only position in this situation that accords with reason and good sense.”

But some other lawyers, who preferred not to be named, argued differently, citing Section 221 of the constitution. According to them, it is the party, not the candidate that contests an election. Therefore they contended that if a candidate dies, the party has the constitutional right to replace him.

Section 221 states: “No association other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”

This section along with some sections of the Electoral Act 2007 came under Supreme Court scrutiny in the 2007 case of Amaechi who had challenged his substitution with Omehia by the PDP in the Rivers State gubernatorial election.

The principle the case established, said a lawyer, is that it was the political party, and not the candidate, that is elected at a poll. But Professor Sagay said while this position is correct, the Amaechi case would still not apply to the Kogi election.

“The Amaechi decision does not apply because the person who contested (Omehia) was not the person nominated. In that case, the person nominated was deprived of his victory. But in this case, the person nominated (Abubakar) was the contestant but died before he was declared winner,” he said.

Certainly, the days ahead would be testy for the INEC, as its lawyers would have to ponder over the legal lacuna arising from that the death of the APC candidate.

Now that no one has been validly elected, is there a legal basis for INEC to still hold a supplementary election in the local government areas where elections could not hold before the demise of Audu? Would it on its own invoke the doctrine of necessity to allow the deputy governorship candidate to become the governorship candidate for the purpose of concluding the elections?

Would it allow the principle established by the Supreme Court that political parties and not the candidates contest elections to be invoked to save the election? And could this apply in an election that is inconclusive? Would INEC conclude that the death of Audu has doomed the whole election and a fresh nomination has to be made by the APC for a fresh election?
These and many more questions are begging for answers. The only institution that can provide answers is the judiciary. But more importantly, does INEC even have the luxury of time to take the case before the court?


Credit: Bolaji Adebiyi/ThisDay