Audu’s Death, Faleke’s Legal Significance & Why The Law Cannot author Confusion

By Olusola Adegbite Esq

Since death came calling and snatched away the obviously pedestrian, but quite popular gubernatorial candidate of the All Progressives Congress (APC), in the now still-born Kogi Governorship elections, there has been a floodgate of legal opinions, cross-currents of analysis and an assortment of disagreements. Countless opinions have been rendered here and there of how the current debacle, is one that the Nigerian Constitution never envisaged, to the extent that the Latin word “Lacuna”, has since become nearly everyone’s friend in the last three days. Funny enough, the comedy side of the entire episode, has been quite as outstanding and remarkable as the flurry of legal debates. After all, how else do you explain the fact that shortly after the debates began, different aspects of comic reliefs also simultaneously entered the fray, with overnight rumours quickly been manufactured in their tons, to perhaps create a temporal comfort for the bereaved people of Kogi, with those rumours suggesting that Mr.Audu may have after-all evaded the incarceration of death, except that before such rumours could even gather the requisite time to assume a life of their own, the people were quickly, just the same way they were deceived, brought to the realization that they must again have been sold a dummy.

However, even though the deluge of opinions seen in the last three day must be a necessary expectation in a time like this, it must be said that in any controversy of this manner, no matter the juicy nature and the enticing prospects of several submissions, what is bound to eventually carry the day is the degree of superiority and rational components of such arguments. Thus, even where the strictness of law may not easily be seen in such superior argument, one thing that would certainly not be discountenanced would the Jurisprudence thereof, which itself is the life of the law. That is why, the soundness of the law is to be found more in the depth of philosophical disputations based on legal reasoning cum application of the law, than fixated technicalities that tends to end up becoming legalistic and tiring, a road that has since been abandoned by the best minds in the legal world. It is in this light that law, as it is said, must exist for man’s profiting and not for man to become a slave to the law.

To this end therefore, I must submit, particularly with respect, that contrary to the wide spectrum of views already expressed, I do not see any legal quagmire created by the Kogi situation. It is a sad commentary that, whenever any opportunity presents itself for the further development of the Nigerian law, given our heavily politicized system founded on clientilism and political malafideism, the law would usually be interpreted in a manner akin to making a feast out of an ordinary meal, such that at the end of the day, even for a simple constitutional matter, a legal mountain would have been created. It is trite that every decision that stems from provisions of the law must be a product of legal reasoning, which is usually the fulcrum of the argument of sound Lawyers in the Courtroom, and which in itself is an elementary principle of law that Law students are taught right from their first year in the University.
Nigeria’s legal circle must move away from its ground zero base, where every-time a legal issue arises, we are quick to say that the Constitution does not provide for it, and immediately designating it as a legal quagmire. Is the Constitution an Encyclopedia as to comprehensively provide for all and sundry in its letters? God forbid that that be so. While the Constitution, to the extent to which the letters can accommodate, provides generally for certain things, it only stands to reason to say that the same Constitution captures so many other things left unsaid via its Spirit and intent. I make bold to say that no Constitution in the world provides for every eventuality, yet in many of these other countries their law is so robust, fluid, and even so tantalizing to many, who are not even Lawyers. That is why provisions of the law are both express and implied; express in the sense that they are clearly stated in extant legislations, and implied to the extent that necessary inferences can be drawn from these express provisions, to identify the intent and Spirit of that law.
Thus, in the present Kogi so-called debacle, one thing is clear and it is thus – If either the Attorney-General of the Federation (AGF) or the Independent National Electoral Commission (INEC), were to approach the Supreme Court, asking it to give a constitutional direction on this matter, it is certain that the Apex court will neither agree with the provisions of Section 181(1) of the Constitution, nor will it accept the provisions of Sections 33 of the Electoral Act 2010 as entirely valid in this instance, as both do not expressly cover the matter in question. What then can one say will reasonable inform the direction the court will go in this matter?
11239660_10153302496632709_7133438584641756569_oIt is clear that the Apex court will only be left with one option, which is to either tend towards the provisions of Sections 181(1) of the Constitution, or move closer to the provisions of Section 33 of the Electoral Act. The question then is, of these two provisions which is closest in conveying the spirit and intent of the law in this matter? The answer to my mind is the provisions of Section 181(1) of the Constitution, which itself has found judicial flavour in several cases, which are cases closer in character to the Kogi situation. This means the Court in this instance will move to draw necessary inferences from Section 181(1) of the Constitution, by looking at the mischief that section for enacted to cure, and the degree of similarity the exist between that mischief and the current mischief in Kogi. Surely, the Court will not embark on a legalistic journey of dogmatically construing the provisions of Section 181(1) of the Constitution in its most strict and technical sense, as to miscarry justice. It can only be reasonable to say that only Section 181(1) offers a nexus, and that is to the extent that substituting a running mate with a deceased partner, in an election where more than 90% of the votes have been returned is far closer to the Spirit of this section, than calling for fresh primaries in the instant case, which is not near what Section 33 of the Electoral Act intends. With this in mind, the analysis below therefore becomes relevant.
The ticket of the APC in the Kogi Governorship elections is a single ticket, neither belonging to Mr. Abubakar Audu alone, nor Mr.James Faleke, his assistant. The ticket is a single ticket belonging to the APC, and the character of its singleness is such that it cannot be divided into two, rather the two aspirants of the party hold in trust for the party. This is so because, under our type of Constitutional democracy, the political party is the only recognized entity on the ballot paper for any election upon which votes will be cast, and once those votes are counted and returned, they are so returned as votes accruing to the party and not the candidate. This is in sharp contrast to some other democracies that practice independent candidacy. In such places, the votes cast are directly owned by the candidates, being his own man.
With this reasoning in mind, there is no way the death of Mr.Abubakar Audu should call to question the ownership of those 240, 827 votes returned in favour of the APC, they belong to the party whom Mr.Audu represented in the elections. And he did not represent them alone; he had with him a partner in person of Mr.James Faleke, with whom he held jointly the benefits and liabilities of that representation. Thus, even though Mr.Abubakar Audu is dead, the APC is not dead, neither is Mr.James Faleke the alternative candidate prepared by the law for such eventualities. Certainly, there can only be one reason why the law mandates that the validity of a gubernatorial candidate can only stand, where he has correspondingly nominated a running mate, and that reason is simply to prepare an immediate substitute, in the event that the main candidate becomes unavailable.
Going by this reasoning therefore, the late Abubakar Audu, cannot be said to have contested the Kogi elections all by himself and cannot be said to in all entirety own the 240, 827 returned, as to have taken those votes along with him to the grave. It was the APC, whose logo was on that ballot paper, and not Mr.Audu’s picture, that contested the election, and the whole gamut of the procedure of party primaries, which is the argument certain minds have raised, is nothing but a requirement that the party must fulfill before it can validly say it has produced its candidate to fly its flag. Part of the other requirement is the nomination of a running mate, so no one requirement is superior to the other. That the law provides for nomination as the procedure for coming up with a running mate, does not make it less in force than a primary. What would have made it less, was if the constitutional qualification were different. Given that INEC does not have the extant powers to cancel the 240, 827 votes already returned for the APC, the suggestion therefore that INEC must conduct a fresh election is entirely anachronistic and absurd.

This then brings us to that ever nagging question that our political class have continue to trivialise and treat with disdain, but one which the Supreme Court itself has had occasion to pronounce on severally. That is the question of the legal significance of Assistant candidates in elections who later metamorphose into Deputy-Governors and Vice-Presidents. It must be said that, in the eye of the Law both candidates are seen as enjoying the same legal importance, as the joint ticket they ride on confers the same benefits and liabilities on them, which from the stand point of reason presupposes why the Constitution demands the same qualification from the main candidate and the running mate. Now, the Nigerian Constitution may not have dealt expressly with the significance of the these Assistant candidates, something that may be inferred from the wisdom of the drafters of the Constitution not to create a form of inferiority complex or superiority ego amongst the duo, however that is not to say that the same drafters envisaged a situation in which running mates or deputies, would be treated as useless occupiers of their office, or legally insignificant.

To my mind, the intention of the parliament can only be that the ticket of any political party is held jointly by both the main candidate and the running mate, and not to the exclusive preserve of one, to the extent that, from the moment they start their journey together, one is a ready substitute for the other whenever the need arises, whether it be an inconclusive election or one that is full. The legal reasoning behind this is simply that the law at every point in time detests a vacuum, not even in an inconclusive election, and the law does not have to expressly say this. The authority for this is the same as found in Section 181(1) of the Constitution which provides for the running mate to replace the main candidate where votes have been fully declared. If that same running mate is viewed by the law as qualified as the automatic flagbeerer of the party, where the votes have been fully declared, how can there be a different reasoning, where less than 10% of the votes are left to be declared? Are we to throw away a 90% in hand, and embrace a faraway 10%? Certainly not.

In sum, there is no contesting the fact that it will amount to manifest absurdity and a perfect recipe for foreseeable and avoidable Constitutional disaster for INEC to proceed to conduct a fresh election in Kogi State. The 240, 827 votes that have been garnered by the APC are valid votes that cannot be thrown away like that, and in the same breadth, Mr.James Faleke is not a meddlesome interloper in this matter that can be ignored. Those 240, 827 votes have been validly counted and accordingly returned for the APC, and Mr.James Faleke himself remains a valid and qualified flag-bearer of the party who can inherit those votes. Thus, what INEC needs to do is simply to proceed and conduct the supplementary elections (which wouldn’t have been necessary if INEC has been circumspect enough, as the remaining 25,000 accredited votes is itself far less than the 41,000 more votes that APC has), and declare a winner in this election. The letters of the law may have appeared not to have covered this now all important issue, but it is only trite to say that at all times, the dictates of legal reasoning demands the superiority of the Spirit of the law over the letters. In any case, both the letters of the law and the Spirit are designed to be profitable to direct, and not to be authors of confusion.
Olusola Adegbite, Esq. is a Lecturer in the Faculty of Law, Obafemi Awolowo University, Ile-Ife, NIGERIA.
Olusola Adegbite,Esq.
Faculty of Law,
Obafemi Awolowo University,
Ile-Ife,
NIGERIA.