A constitutional crisis seems to be in the offing following the death on Sunday of the gubernatorial candidate of the All Progressives Congress (APC) in the Kogi State governorship election, Prince Abubakar Audu, as lawyers have differed on the way forward.
The different opinions are based on the constitutional lacuna which does not envisage a candidate dying midstream in an election that is underway.
The Kogi election was declared inconclusive on Sunday due to the large number of cancelled votes.
The constitution or the Electoral Act, 2010 (as amended) provide for is a situation in which a declared winner dies or is unable to be sworn into office after the election while the Electoral Act provides for a situation where the candidate dies after his/her nomination, but before the election.
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.”
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.”
Also, Section 33 states that “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”.
Giving their opinions on the matter, Prof Itse Sagay SAN and Mr. Olisa Agbakoba SAN, both agree that the death of a candidate before the declaration of results or emergence of a winner renders the election inconclusive and mandates the conduct of a fresh election.
Sagay argued that: “Obviously, the election has become inconclusive. If the person who scores the highest votes dies before being declared the winner of the election, in that type of situation, there has to be a fresh election, giving the party affected to provide a substitute.
Similarly, Agbakoba toeing the same line said: “The fact that the candidate is dead, invalidates the ticket,” arguing that “you need to have a person and a party to complete the ticket”.
He said the situation would have been different if the candidate had been declared the winner of the election before his demise. “The deputy would have been elevated to the position of the governor,” Agbakoba said.
But Mr. Festus Keyamo, who agreed that Audu’s death had created a “strange and novel constitutional scenario”, argued that it fits more into Section 181(1) of the constitution, “and as such James Abiodun Faleke automatically becomes the governorship candidate of the APC”.
In a statement on Sunday, Keyamo said: “This is because even though the election is inconclusive, votes have been counted and allocated to parties and candidates. As a result the
joint ticket of Audu/Faleke has acquired some votes already.
“James Abiodun Faleke is as much entitled to those votes already counted as much as the late Abubakar Audu. He has a right to cling to those votes going into the supplementary election.
“There is only one problem, though. Who nominates Faleke’s deputy? Unlike Section 181(1) of the 1999 Constitution, he cannot approach the House of Assembly of the state to approve a nomination by him of a deputy.
“This is because, in reality, he is not duly elected yet. Therefore it is only reasonable to conclude that it is APC (Faleke’s political party) that should submit the name of a fresh deputy governorship candidate to INEC for the supplementary election.
“This is the only position in this situation that accords with reason and good sense.”