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KOGI INCONCLUSIVE GUBERNATORIAL ELECTION AND DEATH OF A CANDIDATE: THE LEGAL ISSUES BY KENNETH OKONKWO
The nation was thrown into shock by the sudden death of Alhaji Abubakar Audu, the gubernatorial candidate of the All Progressives Congress Party, immediately the Kogi election was declared inconclusive. May his soul rest in peace and may Allah forgive him his sins. In addition to throwing the nation into shock, it has also thrown the nation into legal quagmire as this is a novel issue not adequately anticipated by our laws and as such the procedure to be taken in this circumstance is not clearly stated in our laws. However, wherever there is law, there must be a remedy. As Constitutional Lawyers, we will attempt to look through our laws and profer solutions which we believe will guide all interested parties, particularly INEC and the political parties, to make the right decisions.
Preliminarily, we observe that the law is very clear on what should happen in the event of the death of a gubernatorial candidate before and after election. The position of the law is that if a candidate dies after nomination but before election, the party will replace the candidate with another candidate and INEC may postpone the election if need be (please see sections 33(1) and 36(1) of the Electoral Act). However if a candidate dies after election in which the candidate was declared the winner, his deputy will be sworn in as the Governor (please see section 181(1) of the 1999 constitution as amended)
Section 36(1) of the Electoral Act 2010 as amended 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”
Section 181(1) of the1999 Constitution as amended states that “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”
Applying the above sections to the facts of this case, we recall that the election was declared inconclusive as a result of the cancellation of the election in some places. This means that no candidate was returned elected and as such no candidate was duly elected. The provisions of section 181(1) of the Constitution does not apply because as at the time of cancellation, Alhaji Abubakar Audu was still the nominated gubernatorial candidate of APC and not a Governor elect
The cancellation of the election in some places which rendered the election inconclusive means that there shall be fresh elections in those places.
The legal issues that arise for consideration include:
(1) Whether a political party can go into a gubernatorial election with only one candidate
(2) Whether the deputy gubernatorial candidate automatically becomes the gubernatorial candidate in the event of the death of the gubernatorial candidate
(3) Whether a political party can contest the same election with two different joint candidates
As regards issue (1), the position of the law is as stated in section 187(1) of the 1999 constitution as amended. The section provides that “… a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions”
From the foregoing provision, it is obvious that a political party can only go into a gubernatorial election with the joint ticket made up of the Governor and his Deputy but cannot go into election with only one of them. Applying this provision to the facts of this case, with the death of Audu, APC cannot go into the next round of supplementary election with only one candidate. There has to be a joint ticket for there to be a valid nomination for any gubernatorial election.
As regards issue (2) on whether the deputy gubernatorial candidate can automatically become the gubernatorial candidate in the event of the death of the gubernatorial candidate, we note preliminarily that whereas the party nominates its gubernatorial candidate during its primary election in line with the 1999 constitution as amended ( please see section 177(c)), party’s constitution and the provisions of the Electoral Act (please see sections 31(1) and 87), the gubernatorial candidate nominates his deputy (please see section 187(1) of the 1999 constitution as amended).
In the event of the death of the gubernatorial candidate, after the delivery of nomination papers to INEC but before the commencement of the poll, it is the party that has the right to change its candidate by nominating a new candidate who will in turn nominate his own deputy candidate (please see sections 33, 36(1) of the Electoral Act). It appears from the provisions of these sections that the deputy gubernatorial candidate cannot automatically succeed the gubernatorial candidate since he cannot usurp the powers of the party to pick a new gubernatorial candidate. Also he cannot become the deputy gubernatorial candidate automatically as the right to pick a new deputy now resides with the new gubernatorial candidate of the party (please see section 187(1) above). The death of the gubernatorial candidate, therefore, seems to have annulled the original joint ticket of the party and requires new joint ticket for any future elections.
Applying these rules to the facts of this case, it is observed that Audu was nominated in a primary election by APC in which he won and consequently picked his deputy. With the death of Audu, APC shall conduct a fresh primary election in which every qualified member of APC is free to contest in order to choose a new candidate who shall in turn choose his deputy.
Issue (3) is on whether a political party can contest the same election with two different candidates. As regards this issue, we note that a supplementary election called as a result of the cancellation of some results of an election is part of the same election earlier held not different from it. It is like a fraction of the whole election postponed to another day. The questions that arise then are, can INEC rightly subject the same set of voters in the same election to different candidates? Also related to this is the question, can the candidate of a political party be made to face two different candidates in the same election? These questions may be clearer if we relate them to the facts of the case. Can INEC subject Kogi East senatorial district to vote for a candidate in a gubernatorial election and subject Kogi West to vote for a different candidate in the same election? Also can INEC make Idris Wada of the PDP to face different candidates presented by APC in the same election? It is submitted that in the interest of natural justice, equity and good conscience, the answer to these questions should be no. This implies therefore that APC cannot present another set of candidates to contest the same election. New candidates should logically and equitably be nominated for new elections.
Some often argue that the voting was for a party not a candidate. They are always quick to cite Amechi’s case. We observe, however, that Amechi’s case is substantially different from this one. The crux of Amechi’s case is simple. Amechi was validly nominated by his party but was wrongly replaced by the same party. The Supreme Court simply held that in the eyes of the law, Amechi was deemed to be the candidate of his party on the day of election. Also in Amechi’s case, election had been concluded, a winner declared and even sworn in. No candidate died. In this case, however, a winner has not emerged and a candidate died. Arguing that fielding different candidates do not matter in the same election since it is the party that is on the ballot is like saying that two political parties can field one candidate in the same election and argue that it doesn’t contradict the law since it is their parties that are on the ballot not the candidate. After all in all the sections where the Electoral Act prohibited over voting, emphasis was on the candidates not political parties. Section 32(2) of the Electoral Act expressly prohibits any person from nominating more than one person for election to the same office. With the death of Audu therefore, members of APC are prohibited from nominating another person for election to the same office that Audu contested for but did not conclude. They can only do that for another fresh election
It is submitted, therefore, that each party is entitled to only one joint gubernatorial ticket for an election and if any unforseen circumstance arise that will necessitate the variation of candidates after an election has been partially conducted, the most acceptable option is to call for fresh elections as the earlier results declared for one candidate cannot count for another candidate in the same election
Kenneth Okonkwo is a Legal Practitioner based in Abuja
