Sunday 22 November 2015

Audu's Death: What the Electoral Acts and Constitution says about death of a candidate

Nigeria Constitution
The untimely death of APC governorship aspirant in Kogi state Prince Abubakar Audu, who is also leading in yesterday governorship election in Kogi state have thrown up issues of what next the election umpire INEC will do. 

The Nigeria constitution only made mention of death of elected candidate that is yet to be sworn in. 

The 2010 Electoral acts states that:
Section 33 of the Electoral Act states: “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 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.”
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.” 
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?

Credit: Bolaji Adebiyi

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