If, as is likely, Prince Abubakar Audu, the gubernatorial candidate of the APC in the ongoing Kogi election has passed on, then a legal question to be decided by INEC and the courts is unquestionably before us, because the Constitution and the Electoral Act seemingly make no provisions for death of a candidate at this point of an inconclusive election. It’s the sort of challenge that the new INEC leadership under Professor Mahmood Yakubu would not have prayed for.
Let’s consider where we are. We have had an election held on Saturday, November 21, 2015. INEC has come out to announce that the election is “inconclusive”, because, according to the Returning Officer, Professor Emmanuel Kucha, the collation of results from the 21 local government areas of the state showed that the cancelled votes were higher in number than the margin between the leading candidate, Prince Abubakar Audu of the APC and the PDP candidate, Captain Idris Wada who was the runner-up.
The Commission therefore decided on a supplementary election to determine the winner, but with no date fixed yet. So, in a de facto and de jure sense, the election is still ongoing. But then, something happened after this decision was taken. One of the candidates, Prince Abubakar Audu reportedly died before the conclusion of this election or before the proposed supplementary election that should have concluded the whole process.
So, what does our law say? Here is what the Constitution says:
Section 181(1): “If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to 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”.
Clearly, this provision does not apply to the situation on the ground, because Prince Abubakar Audu was not the Governor-Elect before he died. So, Abiodun Faleke, his running-mate was not elected the Deputy-Governor and therefore cannot be sworn into office in line with Section 181(1).
How about the Electoral Act 2010 (as amended)? Here is what it says:
Section 36 (I): “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”.
Again, technically speaking, this section does not seemingly apply to the situation we are in. This is because the poll has already commenced, but is yet to be concluded before the candidate died.
Further, with regard to the change or substitution of a candidate by a political party, the Electoral Act in section 33 says: “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 32 (1) of the Electoral Act referred to above says: “A candidate for an election shall be nominated in writing by such number of persons whose names appear on the register of voters in the constituency as the Commission may prescribe”. So, what section 33 is saying is that a political party cannot substitute the name of anyone duly nominated under section 32(1) with another name or candidate except in the case of (1) death and (2) withdrawal.
As it concerns the withdrawal of a candidate, section 35 of the Electoral Act says: “A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to the election”.
All this taken together, the only provision that seems to give us a little room to manoeuvre is section 33 of the Electoral Act. But following the strict reading of the law, there is an impediment here in the fact that the candidate died during the election itself and not before the commencement of the poll. This ordinarily means the political party cannot substitute this candidate on the basis of death, because death occurred during the poll, not before the commencement of it to trigger the operation of section 36(1) of the Electoral Act.
Also, INEC seems not to have prepared itself for this eventuality if one reads the Frequently Asked Question (FAQ) page of its website where it provided answers to likely questions. Below are answers it provided for Questions 57 and 60 dealing with a candidate’s substitution occasioned by withdrawal or death:
57. Q: Can a candidate be changed or substituted by the party?
Ans: Yes. However, a candidate can only be changed or substituted in case of death of, or withdrawal by the candidate.
60. Q: What happens when a candidate dies before an election?
Ans: His political party will send the name of another nominee to the Commission within the stipulated time (i.e. 45 days before the election). However, if after the time for submission of nomination and before the commencement of the poll, a nominated candidate dies, the Commission shall cancel the poll in which the deceased candidate was to participate and shall appoint some other convenient day for the election.
In none of the above did it address the question of candidate’s death during election. What it addressed here are the same questions the Electoral Act addressed, which is death before the commencement of the poll or election.
So, what do we do? 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.
Obviously, there are those who think all that needs to happen now is for Abiodun Faleke, the running-mate to step into the shoes of Audu and contest the supplementary election. This cannot be the case for two reasons – one legal, one practical. But first let us consider the legal reason, which is that the Supreme Court has ruled in Amaechi’s case that it is the party that contests elections and if anybody must step into Audu’s shoes, it is the party that will produce such a person after due process of activation of internal party democracy for this purpose. I’m proposing that we look at this legal reason first before considering the second practical one, because, paradoxically, the same legal argument I’m proposing here based on the Supreme Court’s verdict in Amaechi vs INEC et al, S.C. 252/2007 is the same argument those who think Mr Faleke should step into Audu’s shoes depend on in support of their thesis, even if in a roundabout way.
Before looking at the decision in the case as it affects this issue by implication, let me debunk the roundabout argument that the intendment of the Constitution, which is for the Deputy-Governor to step into the shoes of the Governor where the latter is deceased, is the same as the running-mate stepping into the shoes of the candidate where the latter is deceased. What they are failing to see in putting forward this argument is that the singular determining factor is a conclusive election that has produced a substantive or elected candidate already, not one that is inconclusive or ongoing. You cannot build something on nothing. The running-mate cannot claim from a platform that has not yet won. The assumption that from the result of the inconclusive election, the Kogi election is as good as won and lost is a fudge. The fact that it is declared inconclusive and the fact that a supplementary election had been scheduled before Audu Abubakar’s death tell us exactly that it is not won and lost yet.
Having clarified that, let’s look at the aspect of the Amaechi case that applies to the situation here jurisprudentially. Delivering judgment in that case, George Adesola Oguntade J.S.C. (as he then was), stated the following in relation to the political party and the individual candidate vis-a-vis an election:
“There is no doubt that P.D.P having previously sent Amaechi’s name to INEC by letter on 26/12/2006 could only validly remove the name or withdraw it if it complied with section 34(2) above. The cogency or the verifiability of the reason for the withdrawal of a candidate’s name has to be considered against the background that INEC officials, pursuant to section 85 of the Electoral Act above, would have been present at a meeting or congress of a party called for the nomination of a candidate for an elective office. INEC would thus know the results of such party primaries. When a political party later asks to substitute a candidate, it does so against the background of the result of the primary election. If there is a problem with a candidate who comes first, then the party will opt for the 2nd and later 3rd etc in that order. There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate. This seems to me a praiseworthy attempt to enthrone intra-party democracy in order to ensure that our democracy is truly reflective of the people’s choice. Now section 221 of the 1999 Constitution provides:
‘No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any party or to the election expenses of any candidate at an election.’
“The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election. I think that the failure of respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mundane or colloquial terms we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is his party that has won the election.
“I mentioned earlier that P.D.P did not provide cogent and verifiable reason for the attempt to substitute Amaechi with Omehia. Not having done so, Amaechi who had acquired a vested right by his victory at the primaries and the submission of his name to INEC was never removed as P.D.P’s candidate. If the law prescribes a method by which an act could be validly done, and such method is not followed, it means that that act could not be accomplished. What P.D.P did was merely a purported attempt to effect a change of candidates. But as it did not comply with the only method laid down by law to effect the change, the consequence in law is that the said change was never effected. In the eyes of the law, Amaechi’s name earlier sent to INEC was never removed or withdrawn.
“In his argument in the brief filed for P.D.P, J.K. Gadzama S.A.N, senior counsel argued that Amaechi who had not contested the election could not be declared the winner. He stated that such a declaration would amount to a negation of democratic practice. With respect to counsel, I think he missed the central issue which is that it was in fact Amaechi and not Omehia who contested the election.
“Omehia remained no more than a pretender to the office. The one unchanging feature is that P.D.P was the sponsoring party”.
First, let me clarify that the Electoral Act being referred to here is the 2006 version which was the applicable law at the time of the case in 2007, but that is not an issue in this case as it affects us. Secondly, we do recognise that the issue before the Court in Amaechi’s case was one of withdrawal of candidate by the party, not death. But the interface with our case here is that both revolve around the appropriate way a party can replace a candidate for the purpose of election whether the original candidate died or withdrew or was withdrawn. What this case established, which none of us are arguing here, is the primacy of the party in making that decision. I have taken the liberty to quote extensively to allow us see the full thinking of the court in reaching its decision, because that will allow us appreciate my application of it here as opposed to how those who prefer Faleke to simply step into Audu’s shoes apply it.
The core provision in the Justice’s view is section 221 of the Constitution. This establishes the fact that it is the party that contests elections through candidates they sponsor. The second core thing to take away is that the replacement must be based on the results of the party primary appropriately conducted and witnessed by INEC, who must know the results of such party primary. The Justice specifically stated that substitution of a candidate must be done “against the background of the result of the primary election”. He went on to exemplify it thus: “If there is a problem with a candidate who comes first, then the party will opt for the 2nd and later 3rd etc in that order.”
Applying this principle in this case, it is clear that Abiodun Faleke does not feature at all as he was not part of the party primary. He was chosen as a running-mate to Audu only after the party primary. So, if anyone has to be considered outside a fresh party primary, it must be, according to the Supreme Court decision, Alhaji Yahaya Bello who was the closest rival to Audu at the primary with 709 votes to Audu’s 1109. Again, according to the Supreme Court, if there’s a problem with Yahaya Bello, the next man, Senator Nurudeen Obatemi with 400 votes would be the candidate and if there is a problem with him too, then it would be Sanusi Gamji with 309 votes and so on. But it is not in the contemplation of the law (see Sections 32 (1) and 33 of the Electoral Act as quoted above) or of the Supreme Court (as clearly seen from the quoted parts of the judgment in Amaechi’s case) that Abiodun Faleke who was not a contestant at the party primary would be the party’s candidate.
Thus, the proper way of applying the Supreme Court verdict in the Amaechi case is not to assume that because the running-mate and the deceased are running on one party platform, the death of the gubernatorial candidate automatically means the running-mate steps in as the part candidate as both were produced by the party during their primary. No, that cannot be for the simple reason that the running-mate was not the party candidate for the governorship produced from the primary and if we must respect the party’s choice, as suggested by the Supreme Court, then we must give the party the opportunity of choosing its own governorship flag bearer, rather than indirectly imposing one on it before the election. As the Supreme Court pointed out, the “one unchanging feature” is the sponsoring party. In this case, it’s the APC. “There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate”, according to the Supreme Court and that is the overriding truth here. It’s a different matter if they had won the election and a Deputy-Governor Faleke is stepping into the shoes of a Governor Audu for reason of death of the latter. Where an election is yet to be conducted or concluded, the party must be given the opportunity to put itself in a position to win by choosing its own candidate.
The second practical reason Faleke cannot just step into Audu’s shoes has to do with the way political parties choose their flag-bearers based on certain political considerations. For instance, despite the hypocritical shouts of those who blankly and indiscriminately rail against what they erroneously or stereotypically call “ethnic politics”, parties in all viable democracies zone political positions before and after elections. They do this as a matter of practical necessity and in true on-the-ground assessment of the realpolitik of political competition for the purpose of giving each group within the state or entity in question a sense of belonging or simply as an outright attempt to win the election by favouring the majority ethnic group or a particular voting block where it is the only condition that can win them the vote.
Applying the above to the Kogi case, we do know that the majority ethnic group being Igala, both main parties (any of which is more likely to produce the Governor) invested in Igala candidates. To force the APC to now adopt an Ebira or Yoruba candidate, especially one that was parachuted from Lagos, to fly the flag of the party might be considered a huge disadvantage to the party. Surely, that cannot be the intention of the law. The intention of the law is to provide an equal playing field for the parties. Indeed, it must be presumed that it gives the parties equal opportunities to freely choose candidates that would fly their flag once they meet the democratic requirements within their parties. No party would knowingly commit political hara-kiri where it has a choice.
It therefore stands to reason that the APC must be given the opportunity to choose a new candidate to take the place of Abubakar Audu. It is entirely free to determine how it wants to produce this candidate as far as it follows the rules of internal party democracy and INEC observes it. It might choose to go with the candidate that came second to Audu if it thinks it can get the whole of the party, especially its Igala constituents to back him, especially also as the PDP candidate and the incumbent, Captain Idris Wada is an Igala. Or it may choose to conduct another primary entirely and present the winner of this as its candidate for the election. Again, the choice is the party’s as far as it meets the internal democratic quotient stipulated.
For this to happen, the provisions of sections 33 and 36(1) must be applied purposively. Audu would be deemed to have died before the commencement of the poll as 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”. Then the Commission shall appoint some other convenient date for the election within 14 days. Already, the poll that would be countermanded is the supplementary one, which arose from an inconclusive one. Both polls must be treated as one, because it is the one poll to determine the governorship of Kogi State. A countermanding of the election on account of death is simply the fair outcome.
Once this is done, the fairness and objectivity of the process cannot be questioned. The APC will have the opportunity of sending another name to the Commission who must, in choosing a new date within 14 days of the formal ascertainment of death of the candidate by the Chief National Electoral Commissioner or the Resident Electoral Commissioner, consider that there has to be at least 45 days before the election in order to give INEC and the parties the time to prepare as required by law.
I therefore look forward to INEC cancelling or countermanding the Kogi election and giving the APC the opportunity to produce a new candidate for a new election. Hopefully, everything will be concluded within the next two months without anyone taking us through the courts. However, if anyone decides to go to court, they are welcome; yet this shouldn’t stop INEC from getting on with the job of providing the Kogi people an opportunity to choose their Governor lawfully. If at the end of it all anyone still feels aggrieved and wants to challenge the election outcome, they’d be free to go to the Kogi State Election Petition Tribunal as stipulated by law.
I have humbly stated all the above and given these suggestions, so that no one pretends there is a constitutional crisis with the Kogi election and use that as excuse to throw us in an electoral ditch. This nation is hanging on tenterhooks at the moment already and we don’t need another avoidable crisis from Kogi to pile on all that we have at the moment.