Image: The Late Prince Abubakar Audu
Legal practitioners across the Federation have had their jobs cut out to tell Nigerians the best and fairest strategy to adopt in resolving the legal and political impasse emanating from the near victory and sudden death of the APC standard bearer in the Kogi gubernatorial election which held on the 21st of November, 2015, Prince Abubakar Audu.
I hold tenaciously to the argument that the inconclusive declaration of that election result was unnecessary, considering that there was already a ‘victor’ in that election. Why do I hold such opinion? Late Audu already had a clear lead having garnered more than 41,000 votes than his closest rival and the incumbent Governor, Captain Idris Wada. The areas where elections are cancelled or votes were rejected have a little over 49,000 registered voters.
This figure will be lower by at least 20 percent by the time, INEC tells us the number of voters who had collected their PVCs. Statisticians will also agree that considering the ratio of voters turnout in the original election, it will be a magic of the century, if more than 20,000 voters turn out to cast their votes in the scheduled rerun election.
It is not in doubt that should all the qualified voters; in this case, voters who have their Permanent Voters Cards come out to cast their votes, and by some unprecedented political manipulations all their votes go to Captain Wada of the PDP, Late Abubakar Audu would have still emerged victorious.
The Yakubu Mahmoud led Independent National Electoral Commission (INEC) betrayed itself as partisan when it failed to declare someone winner in that election, especially, since it was not yet in the public domain that Audu Abubakar was dead, especially to ordinary Kogites and Nigerians in general. The INEC leadership may have got wind of this development before most Nigerians did, hence, their declaration of the poll as inconclusive.
If this assumption is proven true, then it proves the suspicion that INEC is not truly independent. Public service does not deal with rumors, but facts. To the law and all legitimate institutions, Prince Audu Abubakar was still alive till his death was announced by an authorized member of the family or an associate, and if we want to be more strict, till a death certificate in his name is produced.
The argument held in some quarters that INEC would have been working with assumptions if it had gone ahead to declare Audu winner, because there is no guarantee that the 49,000 registered voters will not all turn out to vote and also cast their votes for Captain Wada does not hold water for the following reasons: 1. The 49, 000 figure represents the number of those who are registered to vote, and this is quite different from those who are qualified to vote. Qualification to vote, according to INEC guidelines can only be gotten when you collect your PVC.
2. The 2015 presidential election which returned President Muhammadu Buhari as elected was concluded with a differential of less than three million votes, even though more than ten million voters were either cancelled, rejected or deprived their rights to vote, due to no fault of theirs.
There is a strongly held suspicion among some Nigerians that inconclusive declaration of that election was fallout of high wired politicking within the APC family. They suspect that some highly placed individuals within the APC and the Presidency may wish to check Bola Tinubu’s encroachment into the Northern political circle. Had Audu been declared winner, Faleke his running mate would have been sworn in as Governor without any legal or political hassles. Faleke is a Lagos made politician and one of the most trusted political protégées of Bola Tinubu.
It is the belief of some analysts that Faleke’s emergence as Governor of Kogi State will mean a seamless extension of the Jagaban political and economic dynasty from the Southwest to the North central. This will pose a problem not just to some APC leaders, but to President Buhari’s political ambitions, especially as it concerns the exercise of control over the APC Party machinery.
It is unfortunate that some legal luminaries whom Nigerians look up to for professional guidance on this issue have rather made their postulations on this matter from very partisan perspectives. Very few of them have offered professional and unbiased opinions on this matter. An evidence of dearth of patriotism?
Most Nigerians and Kogites in particular are not interested in the isms and schisms of lawyers and polemicists; their interest is ensuring fairness and justice in this matter. INEC’s decision to go on with the supplementary election with the APC forwarding the name of a different candidate, who will inherit the votes cast for Abubakar Audu is seen in most quarters as unfair and an evidence that the INEC leadership may have been compromised.
While not a lawyer, I am aware of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and the 2010 Electoral Act (As Amended), as they relate to the issue at stake. The contents of these documents are supposed to guide all stakeholders in taking the best and fairest decision on this matter. And these documents only have solutions to situations where a Party’s candidate dies before the election proper or when election has been concluded and the Governor-elect dies before swearing in.
The writers of these documents did not envisage a situation where a front runner in an election would die while collation is ongoing. Considering the fact that at the end of elections, and during final declaration of winner, the name of the victorious candidate will be mentioned and declared as winner, not just the Party. For instance, if Prince Abubakar Audu had remained alive to see the end of the election, the announcement would have sounded something like: “That Prince Abubakar Audu of the All Progressives Congress (APC), having polled the highest number of votes and satisfied the provisions of the Constitution is hereby declared winner and returned elected”.
While proponents of Party supremacy will latch on the Supreme Court judgement on Amaechi Vs Omehia to defend the INEC’s stance that the APC can go ahead and substitute Prince Audu, they fail to realize that the issues are not the same. In the Amaechi case, the Supreme Court were convinced that Amaechi was duly chosen by majority of the Party delegates to fly its flag at the election, but was wrongly substituted, hence, the Supreme Court restored Amaechi’s mandate as the Party’s flag bearer, which consequently means that the votes cast in the election were for Amaechi on behalf of the Party.
In the Kogi case, the Party will have to nominate a totally new person to inherit the votes cast for Prince Audu Abubakar, and this does neither makes sense to the common Kogite who voted for the APC because Prince Audu Abubakar is its candidate nor is in tandem with the ruling of the Supreme Court which aimed to promote Party discipline and discourage impunity and imposition.
Allowing the APC to choose a new candidate who will ‘inherit’ the votes cast for Prince Audu Abubakar is tantamount to leaving the job of choosing the Governor of an entire State in the hands of a partisan clique, because it is almost out of it, that the APC will be able to conduct a free and fair primary within the period left for that business.
The most likely scenario is for the Party’s NWC to sit somewhere and take a decision on who ‘inherits’ the over 240,000 votes cast by the people of Kogi for Prince Audu Abubakar. This is in complete conflict to the core principles of democracy which are tied around the principle of majority rule and collective responsibility. It would have been a fairer but illegitimate decision for Audu’s running mate to be declared the substantive standard bearer of the Party. Because it will be easier and more reasonable to argue that the votes were cast for both himself and Audu.
While the Constitution did not make any categorical provision on this, it will be fairer to the sensibilities of Nigerians. But the fairest and more constitutional will be to conduct a completely fresh election, where all parties and especially, the APC will be allowed the opportunity to conduct fresh and transparent primaries to choose their candidates.
The INEC’s decision on this matter can only stand if we have decided to discard the practice of democracy for the adoption of totalitarianism and any such form of minority and clique rule. INEC will need to purge itself of the partisan toga, which most sensible Nigerians now see it wearing, by allowing justice, fairness and most importantly, Constitutionalism to direct its action on this matter.
May Nigeria prevail!
Onwuasoanya FCC Jones