By Femi Falana
Last Saturday, the INEC conducted the governorship election in Kogi State. At the end of the polls the Returning Officer, Professor Emmanuel Kucha, Vice-chancellor, University of Agriculture, Makurdi, Benue state declared that Mr. Abubakar Audu of the All Progressives Congress scored 240, 867 votes while Governor Idris Wada of the People’s Democratic Party polled 199, 514 votes. Although the All Progressives Congress led the People’s Democratic Party by 41,300 votes in about 90 percent of the areas where the election held, the INEC decided that a supplementary election would be held for 49,953 voters in areas where votes were cancelled.
The controversy surrounding the announcement of the INEC that the governorship election was inconclusive was compounded by the political crisis thrown up as a result of the sudden death of the governorship candidate of the APC, Abubakar Audu, as the death of a candidate during election was neither envisaged by the Constitution nor the Electoral Act. However, the provisions of the relevant laws and decided cases on assumption of office by co-owners of joint tickets, as well as the experience of the United States with respect to the death of candidates during elections should guide the INEC in resolving the legal quagmire.
While Section 36 of the Electoral Act allows the INEC to countermand and postpone an election if a validly nominated candidate dies before the commencement of poll, Section 181 of the Constitution allows a deputy governor-elect to become governor if the governor-elect dies before inauguration. In PDP v INEC the Supreme Court held that although the governor-elect, Alhaji Atku Abubakar who had resigned to become the vice presidential candidate of the PDP had not clinically died he was deemed to have died in law. The apex court therefore directed that the deputy governor-elect, Mr. Boni Haruna be sworn as the governor of Adamawa state. In the instant case, the conclusion remains inconclusive.
Notwithstanding that there is no provision in the law for the death of a candidate in the middle of an election, the INEC is not totally helpless in the circumstance. Having declared the election inconclusive, the INEC is duty bound to conclude the election within seven days in line with Section 179 of the Constitution. It is submitted that once the results of an election have been declared, whether conclusive or not, the INEC has no power to cancel same as the power to cancel any result so declared is vested exclusively in the governorship election petition tribunal. As the APC cannot be allowed to substitute or replace the nomination of Mr. Audu at this stage of the electoral process, the INEC is legally bound to conclude the exercise. The question of falling back on the results of the primary election conducted by the APC does not arise as it conflict with Section 179 of the Constitution.
The 20th amendment to the United States’ Constitution is in pari materia with section 181 of the Nigerian Constitution as it allows a vice president-elect to become President if the president-elect dies before inauguration. Before the amendment was effected in 1933, the names of the two candidates who died during elections were not removed from the ballot. First, in the presidential election of 1872, Horace Greeley was the Democratic nominee for President while Ulysses Grant was the presidential candidate of the Republican Party. After the popular vote, but before the Electoral College vote, Greeley died. The election went ahead and Grant of the Republican party won the election. Second, in 1912, James Sherman, the Republican candidate for vice president (and the incumbent vice president under William Howard Taft) died on October 30 of kidney disease, a few days before the general election on November five. There was no replacement as Sherman’s name remained on the ticket for the general election. The Republicans lost the election to the Democratic ticket of Woodrow Wilson and Thomas Marshall.
In relying on the experience of the United States, the INEC is urged to base its decision on the decision of the Supreme Court in the case of Amaechi v INEC (2008) 10 W.R.N. 1, where it was held that elections are won by political parties which sponsored candidates. Since the APC which sponsored the late Mr. Audu is deemed to have led the PDP by 41,300 votes, there is no legal basis for cancelling the results of the election, as both the party and the PDP are competent to take part in the supplementary election to be conducted by the INEC. In other words, the INEC is not legally disabled from concluding the governorship election notwithstanding the unfortunate death of the APC governorship candidate.
Since, the governorship and deputy governorship candidates of the the APC jointly contested the election pursuant to section 187 of the Constitution, the votes scored by the party in the inconclusive election remain intact and untainted..
Those who have called for the cancellation of the results of the inconclusive election as a result of the death of Prince Audu have failed to realise that the rights of other candidates who participated in the democratic exercise, including the deputy governorship candidate of the APC, have accrued. Such vested interests cannot be extinguished due to no fault of such candidates. Therefore, if the results of the inconclusive elections are cancelled, the other political parties and their candidates are perfectly entitled to approach the court to challenge the validity of the cancellation and seek to restrain the INEC from conducting a fresh governorship election in Kogi State.
In the light of the foregoing, the INEC has to review its position in the light of the claim that the number of disenfranchised voters in the state who have PVCs and are qualified to vote is less than 41,300. If the claim is confirmed, then INEC should not hesitate to declare the APC the winner of the election. In that case the Boni Haruna’s case will apply. However, if the number of the disenfranchised voters is higher than 41,300 the INEC should proceed and conclude the election which may be won by either of the two parties. If the APC wins the election, the deputy governor-elect will become the governor, while a new deputy governor will be nominated by him and approved by the Kogi State House of Assembly.
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