On the 21st of November, 2015, the people of Kogi State went to the polls to elect the person to steer the affairs of the state for the next four years. While the final results of the election were being awaited, the leading candidate in the said election, Prince Abubakar Audu who was the All Progressive’s Congress Candidate, passed away. Subsequently, the Independent National Electoral Commission (INEC) declared the election inconclusive. This created a situation where a candidate dies before the conclusion of an election. The situation begs for an answer to the question of what ought to be done in a situation such as this. Unfortunately, this situation was never contemplated by the drafters of the Nigerian 1999 Constitution (as amended) and the Electoral Act, 2010 (as amended). What is envisaged by the relevant laws is a situation where a candidate who has been declared winner of an election dies before swearing in. In such instance, the running mate of the deceased winner of the election steps into his boss’ shoes to be sworn in.
The Kogi situation as stated above is a novel legal problem that was never imagined by the drafters of the relevant electoral laws. However, it is settled in legal parlance, that where there is no express provision in a law covering a situation, judicial pronouncement of a competent court of law on that point, is regarded as the law covering such a situation. Unfortunately again, there is no pronouncement known to this writer by any court on this point. The reason is obvious. This is the first time in Nigeria’s democratic dispensation that such a situation is rearing its head in the country’s political history.
Consequently, until there is a law to cover this kind of situation or there is a pronouncement by a court of law to fill the lacuna created by the Kogi situation, all we can do is to offer our humble opinions about what we feel ought to be the position of the law in this regard.
Upon the occurrence of this unfortunate event, so many legal luminaries, Jurists and members of the public took to the media (conventional/social media) to register their opinion on the matter. Most of them relied heavily on Section 36 of the Electoral Act, 2010 which provides for the death of a candidate before the conduct of the elections. The Section provides thus;
‘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.”(underlining mine)
With due respect, this Section cannot be relied upon to resolve the Kogi saga. This is because the section talks about the death of a candidate after the time for the delivery of nomination paper and before the commencement of the poll. The poll referred to in the section cannot be a supplementary poll but the main poll. The wordings of the section suggest that it is the poll coming after the time for the delivery of nomination paper. The only poll that comes after the delivery of nomination paper is the main poll and non-other.
In the Kogi situation, poll had commenced already but had not been concluded. In other words, Prince Abubakar Audu died during the poll. Consequently, Section 36 of the Electoral Act, 2010, as tempting as it is. cannot be strictly relied upon to resolve the issue. If this provision is used in an attempt to resolve this issue, another problem equal in status to the one sought to be solved would be created. This is because the section only envisages a situation where a candidate dies before the polls and not during the poll.
To avoid the above pitfall to be encountered in the use of Section 36 of the Electoral Act, 2010, it is safer to rely on Section 33 of the Electoral Act, 2010 which made a blanket provision in case of death of a candidate. The Section provides thus:
“A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of this Act, except in the case of death or withdrawal by the candidate.”
The above quoted section authorizes a political party to substitute its candidate outside the statutorily provided period only upon the withdrawal or death of such a candidate. Interestingly, it did not provide for the time when such a candidate who withdrew or died can be substituted. This to my mind adequately covers the Kogi situation. This is because, Abubakar Audu was nominated by APC in accordance with section 31 of the electoral act as APC flag bearer in the governorship election that held in Kogi State on the 21st of November, 2015. Before the result of the election was announced Abubakar Audu passed on. Subsequently the election was declared inconclusive thereby calling for a supplementary election.
It is my submission that since Abubakar Audu is dead, the APC can, relying on section 33 of the Electoral Act, substitute its candidate, death being the reason for the substitution of its candidate outside the statutorily provided period for substitution. This position is fortified by the fact that the substitution under section 33 of the Electoral act can be done at anytime provided the reason for the substitution is the withdrawal or the death of the party’s flag bearer before the declaration of the result of a concluded election.
From the above, the All Progressives Congress (APC) in Kogi State is at liberty to substitute its candidate who died. The party must officially inform the INEC of the death of its candidate and its intention to substitute him.
Having said that, the next question is whether the votes scored by APC belongs to the deceased flag bearer or the party and whether it should be accredited to the person who will be substituted
At this juncture it is pertinent to state that the party is the custodian of the people’s mandate. It is only a political party that can canvass for votes on behalf of a candidate as provided by Section 221 of the 1999 constitution of the federal republic of Nigeria as amended. The section provides thus:
“No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”
Indeed, the above quoted provision was a blessing to the Supreme Court when it decided the case of Amaechi. In AMAECHI Vs. INEC (2008) ALL FWLR (PT. 407) Pg. 1 @ 97-98 Per Oguntade JSC, the Supreme Court held that;
“Without a political party,a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in section 221 above, it is only a party that can canvass for votes, it follows that it is a political party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election.”
The Court went further to state that;
In mundane or colloquial terms, we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is the party that has won the election.”
Flowing from the above, the contest in Kogi State Governorship election was not between Late Prince Abubakar Audu of the APC and Idris Wada of the PDP and others, it was primarily a contest amongst the political parties that contested the elections. Consequently, whatever votes cast during the November 21st 2015 elections in Kogi State belonged to the Political parties and not the individual candidates who bore the flag of their respective parties. This reveals the wisdom behind having only the party’s logo on the ballot paper instead of the individual picture or any insignia identifying him. An election is won or lost by a political party who sponsored the candidate and not the candidate. Therefore, where a party wins an election, it is whoever the party present as its candidate that occupies the office won by the party.
Having said that, the votes supposedly scored by Late Prince Abubakar Audu in the Kogi Governorship elections held on the 21stof November, 2015, belongs to APC and not the Late Prince Abubakar Audu. Hence, whoever APC select as Late Prince Abubakar Audu’s replacement, that person takes over the votes scored by the party at the November 21st 2015 elections.
Having cleared the coast on the above issues, the next issue is who should be Late Abubakar Audu’s replacement?
On the 30th November, 2015, the All Progressives Congress held a meeting and selected Yahaya Bello as the Late Prince Abubakar Audu’s replacement in the December 5th 2015 supplementary election. The question is the legality of his selection.
In Amaechi’s case, the Apex Court of the land made a pronouncement that it is believed guided APC in the selection of Yahaya Bello. In Amaechi’s case, the Supreme Court, @ Pg. 97 Para. F-G held thus;
“When a political party later asks to substitute a candidate, it does so against the background of the result of the primary election. If there is a problem with a candidate who comes first, then the party will opt for the 2nd and later 3rd etc. in that order. There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate.”
From the above, a candidate who never participated in the party’s primaries cannot be selected to substitute a candidate at an election.The best a party can do in order to legally select a candidate to substitute another is to select from the candidates who participated in its primaries in the order of votes gotten by each of them.
Guided by the above pronouncement, the APC selected Yahaya Bello to substitute the Late Prince Abubakar Audu. The said Yahaya Bello came second during the APC primaries conducted to select the Party’s flag bearer in the November 21st 2015 governorship election. He took over the votes gotten by the APC in the November 21st elections when he bore the party’s flag in the supplementary election and subsequently declared the Governor-Elect of Kogi State.
Finally, the Kogi situation creates a novel legal issue that needs to be treated with the utmost caution. Though no provision is made in any law to cover the situation, the provisions of the law closest to the situation should be cautiously applied in order not to destroy the intendment of other provisions of the law. In the application of such laws, we must be mindful, particularly the Apex Court of the land, of the fact that whatever its pronouncement, automatically becomes law to be applied in a similar situation until a law is made to cover such a situation, hence, the need for caution in solving the Kogi saga.
By EMMANUEL HASSAN Esq.
A Legal Practitioner based in Jos, Plateau State.
Further inquiries can be made to (email@example.com).
Disclaimer: This is the opinion of the writer and does not represent the position of Ekimogun Mirror.