There was confusion among officers of the Independent National Electoral Commission (INEC) on the legal implications of the death of the Kogi State Governorship candidate of the All Progressives Congress, Abubakar Audu, on Sunday.
A National Commissioner, who spoke on the issue, said the Electoral Act did not specify what the commission should do in the circumstance that a candidate died when an election was declared inconclusive and the rerun had yet to hold.
Section 37 of the Electoral Act, which deals with the withdrawal of candidates, merely explains how a candidate can be replaced if such a candidate dies after nomination.
The section states, “If after the time of 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 about the fact of death, countermand the poll in which the deceased candidate was to participate and the commission shall appoint some other convenient date for the election.”
Speaking on the issue, INEC’s Director of Voter Education and Publicity, Mr. Oluwole Osaze, told one of our correspondents that the commission did not have a position on the issue yet.
While he first said the commission had yet to be informed about the death of Audu, Osaze later admitted that the Electoral Act was silent on the issue.
Osaze said, “We have not been informed about the death. If what you are telling me is true, we are expected to be told.
“Apart from that, the law doesn’t envisage that such a thing would happen and so, the commission has to meet and take a position.
“We will call lawyers and brainstorm on the issue. This is very uncommon.”
But another national commissioner, who spoke on condition of anonymity, said there should not be any problem in interpreting the Act, adding that the ticket was a joint one between Audu and his running mate, Mr. James Faleke.
He said, “We have passed the stage of changing candidates.
“Audu had a running mate, and besides that, the Supreme Court had ruled that the electorate vote for political parties and not individuals. So, his running mate will carry on.”
Meanwhile, lawyers on Sunday differed on the implication of the death of Audu on the outcome of the poll, which the INEC declared inconclusive.
Some lawyers argued that with the election already conducted in part, Audu’s running mate would have to step into his shoes.
A Senior Advocate of Nigeria, Mr. Tayo Oyetibo, argued that INEC had to seek serious legal opinion to avert a constitutional crisis, which Audu’s death was capable of bringing up.
He said, “I think a constitutional crisis is about to start in that state. Section 181 of the Constitution does not envisage the situation in Kogi State now.
“What the constitution envisages is a situation where a candidate has already been elected but dies before he takes the oath of office. In such a situation, the running mate can be sworn in.
“But this is completely different from Atiku Abubakar’s case (in Adamawa State). INEC has to seek serious legal opinion in order to avert a constitutional crisis in that state.”
A former President of the Nigerian Bar Association, Mr. Olisa Agbakoba (SAN), said the law was not clear on the situation that had played out in Kogi State.
“But it is commonsensical. If a candidate is dead, it means there is no election,” he said in an interview with Channels Television.
Another Senior Advocate of Nigeria, Prof. Yemi Akinseye-George, said Audu’s running mate would step in as the APC candidate going by the decision of the Atiku’s case, when he was picked as Olusegun Obasanjo’s running mate, after winning the Adamawa State governorship election.
He said, “Since the election has almost been concluded, the deputy steps into his shoes as the candidate. It is a further interpretation of Atiku’s case.
“Since the election has been conducted in part, it can no longer be nullified. It is for a situation like this that the constitution provides for a running mate in an election.”
A Lagos-based lawyer, Mr. Jiti Ogunye, described the situation as dicey, arguing that with Atiku Abubakar’s case, on which the Supreme Court made a pronouncement, Audu’s running mate would automatically step in.
He said, “It is dicey. But in Atiku Abubakar’s case, he was elected the governor of Adamawa State and later on became the vice presidential candidate and this led to his deputy stepping into his shoes because they were elected on the same ticket.
“That case was fought to the Supreme Court and the Supreme Court came up with the position that in a manner of speaking, Atiku was dead more or less, because the law they were interpreting then was that in the case of death; the deputy governor, though not sworn in, shall step into his shoes.
“Some argued then that Atiku Abubakar was not dead.
“But the Supreme Court said because he was no longer available, he could be regarded as being dead; so the deputy shall step in.
“It will be reductionist to argue that because of what has happened, INEC should cancel the entire election. This cannot be so because you do not even know that Wada will not win the election since the reason INEC gave was that the difference between Audu’s and Wada’s votes was lower than the number of cancelled votes. So, you cannot hastily say INEC must cancel the election.”
Also, a Lagos-based lawyer, Mr. Wahab Shittu, said the Kogi State scenario was novel and was not envisaged by the constitution.
He, however, said there were three ways to look at the scenario to determine what would happen.
Shittu said, “There are several perspectives to it. The first perspective is to say that the candidate and the party jointly own the ticket and now that the candidate is no more, one perspective would be to say that a new election will be organised.
“The second perspective is to say that in view of the provisions of the Electoral Act, allowing substitution before election on the grounds of death of a candidate; if by extension, we input that in the provision, relating to the death of a candidate before the election and then we can say that the party can substitute to allow the process to be completed, meaning that Faleke can step into the shoes of Audu.
“The third perspective is to say that the APC is the party and whatever happens, the APC should be declared winner and the candidate of the APC, being the deputy governor, and the ticket being a joint ticket, now that the governor is no more, the deputy governor can step into his shoes for the purpose of completing the election.
“However, there are no clear-cut constitutional provisions in all of these. It has never happened before.”
Another Lagos-based lawyer, Mr. Yemi Omodele, said, “The contestant that died has a running mate; automatically, the running mate is the governor. It doesn’t mean that a fresh election will be conducted.”
APC too shocked to comment
The leadership of the APC appeared too shocked on Sunday to make comments on the death of its candidate in the Kogi State governorship election.
Attempts to get an official comment from the National Chairman of the APC, Chief John Odigie-Oyegun, and the party’s National Secretary, Mai Buni, were unsuccessful.
Repeated calls to Odigie-Oyegun’s mobile telephone number were not returned, while a response to a text message sent to him was still being awaited as of the time of filing this report.
Similar calls to the mobile telephone set of the party’s secretary indicated that it was switched off.
A highly placed member of the party, who spoke on condition of anonymity because he was not authorised to speak to the media, said, “What do you want us to say? There is no official confirmation about it yet; we have to respect the candidate’s family. If it is true, we have to wait for the family to speak first, we are in shock.”
Sympathisers, supporters besiege Audu’s home
Hundreds of sympathisers and supporters trooped to the GRA home of the APC governorship candidate in Kogi State, Prince Abubakar Audu, who died a few hours after the INEC declared the election inconclusive.
When The PUNCH visited Audu’s Lokoja home on Sunday, sympathisers discussed the issue in hushed tones.
Several efforts to speak with any of his family members proved abortive as all of them were said to have travelled to his country home in Ogbonicha.
Meanwhile, a former presidential aspirant on the platform of the defunct Social Democratic Party, Otunba Reuben Famuyibo, has described the death of Audu as a rude shock, most especially coming at the time it did.
Famuyibo, now a chieftain of the APC, described Audu as a tested grassroots politician who was well loved by his people, adding that he would be sorely missed.
He said, “Prince Audu was an astute politician and a philanthropist per excellence. He was a grassroots politician of no mean measure. His people, followers, Kogi State and Nigeria will miss him. Our great party too will surely miss him.”
Also, the Ekiti State Governor, Ayodele Fayose, has described Audu’s death as tragic and very unfortunate.
The governor, in a statement by his Chief Press Secretary, Mr. Idowu Adelusi, said Audu was a brother, father and a wonderful political leader, who had at one time served his state and people meritoriously.
Fayose said the sudden death of Audu further confirmed that “life is vanity and we would only be remembered for what we did.”