By Dele Awogbeoba
The unfortunate death of Prince Audu of the APC appears to have raised very serious issues for the inconclusive poll in Kogi state. At the current time, the Audu/Faleke APC ticket are ahead by over 41,000 votes. The areas subject to the supplemental poll has a registered voting population of 49,000 people of whom around 32,000 people are alleged to have Permanent voters card and are therefore eligible to vote.
Most commentators have opined that a lacuna now exists as the present facts places the Kogi situation midway between the Electoral Act of 2010 (namely section 33 and 36) and Section 181(1) of the Nigerian constitution of 1999 (as amended). I beg to differ. On closer analysis, I am of the view that no such lacuna exists. I am also of the view that the courts will interpret the law in a manner that makes sense in its totality.
As a background, The Electoral Act will be held invalid, null and void in circumstances where it is inconsistent with the Nigerian constitution. I see no such inconsistency between the two. Section 33 of the Electoral Act has given an affected political party the right to change the candidates on its Gubernatorial ticket in the case of a withdrawal or death of a candidate/candidates. That right is clarified by Sections 35 (that deals with withdrawals) and 36 (that deals with death). Both Sections 35 and 36 thereafter provides the circumstances under which the right of substitution of a candidate by a political party will apply.
In the case of death, the right of substitution by a political party of its deceased candidate only applies when a nominated candidate for the election dies BEFORE the poll has commenced and after he/she has been nominated. Under those circumstances the law allows INEC to countermand the poll and allows INEC to set the poll within 14 days thereafter.
It therefore stands to reason, that on the death of a candidate after the poll has commenced means that the affected party has lost its rights of substitution. Everything is now in the hands of the electorate. The affected political party will consequently have to go through the poll with the names of the deceased person(s) on its ballot. The choice of the electorate is determined and the winner established. INEC has no further power in the process whatsoever. It must count the votes received by every political platform taking part in the relevant election irrespective of whether the votes were cast for a recently deceased person or otherwise.
“The 20th amendment to the United States’ Constitution is in pari materia with section 181 of the Nigerian Constitution as it allows a vice president-elect to become President if the president-elect dies before inauguration. Before the amendment was effected in 1933, the names of the two candidates who died during elections were not removed from the ballot. First, in the presidential election of 1872, Horace Greeley was the Democratic nominee for President while Ulysses Grant was the presidential candidate of the Republican Party. After the popular vote, but before the Electoral College vote, Greeley died. The election went ahead and Grant of the Republican party won the election. Second, in 1912, James Sherman, the Republican candidate for vice president (and the incumbent vice president under William Howard Taft) died on October 30 of kidney disease, a few days before the general election on November five. There was no replacement as Sherman’s name remained on the ticket for the general election. The Republicans lost the election to the Democratic ticket of Woodrow Wilson and Thomas Marshall.” [Femi Falana: What INEC should do with respect to the “inconclusive” Kogi election.]
The Supplemental poll is not a new poll independent of the poll conducted last week Saturday. The Supplemental poll is part and parcel of the earlier poll and its results will be added to the results of the earlier poll conducted last week Saturday. In the event that the affected political party loses the election, nothing more is heard of the matter.
In the bizarre situation where the deceased candidate of a political party wins the poll, then the provisions of section 181 (1) or (2) (as the case may be) would apply. That means if the main deceased candidate wins the poll after the deadline for substitution of a candidate (as permitted by Sections 33 and 36 of the Electoral Act) has elapsed, then section 181(1) allows the court to swear in his deputy as Governor. If both members of a gubernatorial party ticket dies after the poll has commenced but before the swearing in, then (and only then) will a new poll be required to be conducted by INEC. (Section 181(2) of the Constitution).
In my humble analysis, the supplemental poll (as a matter of law) will need to conducted with no change to the APC ticket. Neither the deputy Gubernatorial candidate or indeed any other candidate from the APC is allowed to replace Prince Audu on the APC Gubernatorial ticket. APC has been adversely affected by the law of circumstances and has lost its chance of substitution due to the death of its main candidate after the commencement of the poll. (Section 33 and 36 of the Electoral Act).
The electorate for the supplemental poll will make its choice from the list of candidates presented to the electorate last Saturday even though the person at the top of the APC ticket is dead. If however, the electorate still goes on to vote for the APC in that poll or the APC loses the supplemental poll but still manages to win the overall election and the APC political platform is adjudged by INEC to be the duly elected platform, then the law requires that the deputy candidate is sworn in as governor on the swearing in date. (Section 181(1) of the 1999 Constitution).
I therefore agree with the Attorney General that no lacuna in the law exists. I however disagree with the interpretation of the law advanced by the Attorney-General of the federation. The PDP position is absurd. The law does not disqualify a candidate that dies after the poll. It merely prevents the sponsoring political party from substituting that candidate. APC no longer has the right of substitution (be it in favor of Faleke or any other candidate). Faleke will remain the deputy gubernatorial candidate to a deceased Prince Audu gubernatorial candidate for the purposes of the supplemental poll. (Section 36 of the Electoral Act 2010).
Dele.Awogbeoba@gmail.com