David Warwick, well-known actor of Dr Samuel Johnson’s Day, acquired a considerable fortune in his years on the stage. One day he was showing Dr Johnson, his friend, his new home; its gardens, statuary, painting, furniture, and other luxuries.
Warwick was shocked when instead of going into raptures at this grandeur, Dr Johnson said, “Ah, David, these are the things that make a death-bed terrible.”
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I will like to add that being at the verge of winning an election is certainly one of those things that also make a death-bed terrible. The dead of Prince Abubakar Audu when he was clearly set to be elected the Governor of Kogi State has exposed the ephemeral mortality of man.
But while the dead is “celebrating” a supposed electoral victory, that same victory has thrown the living into a sort of legal helplessness that will be on the front burner for a long time. And when it’s done burning it will leave us with a new legal commentary; maybe for the better.
INEC declared the Kogi gubernatorial election inconclusive. The APC candidate who from every permutations will win the elections (some even believe INEC was wrong for declaring the elections inconclusive because he has already won) died suddenly. And with the supplementary elections scheduled for 5 December, many questions have arisen.
Should Abubakar’s running mate step in in place of him? Should APC be allowed to produce a new candidate to conclude the elections? Should INEC conduct a fresh elections with a new APC candidate or conclude the inconclusive elections? Or should Idris Wada, the PDP candidate and incumbent governor, be declared winner since he had the second highest number of votes after the Late Audu?
Idris Wada and the PDP has no legal grounds to benefit from the legal cum electoral miasma going on in Kogi right now. Any such thought is nothing more than a political fantasy. I can’t begin to imagine the immoral precedent such a fantasy will set if allowed to concretize.
An electoral victory cannot be bequeathed to a loser in that same election just because the supposed winner died. Some politicians might go the extra mile to make sure they acquire victory this way by killing the winner of an election. I guess this thought (which is very possible with our politicians) have frightened you as much as it frightened me. Now let’s go on to other things.
Those who want Audu’s running mate to step in are quoting section 181 of the 1999 constitution to support their stance. This, to me, is the most ridiculous stance of all. Section 181(1) says “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.”
One of the supporters of this stance reasoned that when two pilots are flying a plane and the main pilot dies, the co-pilot takes over. That’s commonsense. I agree. And this is exactly the position of the above section. But such an analogy is deliberately misleading. I say ‘deliberately’ because I believe that one doesn’t have to be a lawyer to see clearly what section 181(1) imports.
Prince Audu has not been duly elected Governor of Kogi State and thus there is no duly elected deputy. Only a duly elected deputy can take over from a duly elected Governor. No section of the constitution or Electoral Act makes provision for a running mate to take over from a candidate. Using the pilot analogy, Audu has not been declared pilot by INEC, so there is no co-pilot. Infact there is no airplane to pilot as far as section 181(1) is concerned.
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As for James Falake, the running mate to Audu, he can only benefit from section 181(1) of the 1999 Constitution as amended if he can prove that the elections was won and that INEC erred by declaring the election inconclusive. From where I stand, this is possible.
So we might have to turn to the Electoral Act to help us out of this helplessness. Section 33 of the Electoral Act says “No Political Party shall 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”. So can the APC easily substitute their death candidate in the light of this section?
Section 36(1) “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.”
From the foregoing it is clear that a political party can change or substitute candidate when such a candidate dies but what is not really clear is when such a change is allowed because section 36 says “Before the commencement of the poll…” the APC candidate is died, he can be substituted but such substitution is only allowed before the commencement of the poll. So has the poll in Kogi State commenced? Don’t shout a ‘Yes’ just yet. There is a legal twist to that.
Section 26(2) says “Where an election is postponed under this Act on or after the last date for the delivery of nomination papers, and a poll has to be taken between the candidates nominated, the Electoral Officer shall, on a new date being appointed for the election, proceed as if the date appointed were the date for the taking of the poll between the candidates.” So an inconclusive election to be concluded on another date is a postponed election and the new date will be taken as if it’s the old date.
So legally speaking, the 21st of November, the day of the gubernatorial election in Kogi State, has not come. So any substitution or change of candidate made now can be legally said to be “Before the commencement of the poll…” in adherence to section 36 of the Electoral Act. I submit that the APC should be allowed to substitute the Late Audu with a new candidate. This substitution should be made from amongst those who contested in the APC primaries.
Those who say this will tantamount to inheriting votes from a dead candidate are clearly not conversant with our laws. Our laws don’t recognize individual candidacy. Every vote canvassed for and gotten in an election is ascribed to a political party and not to a candidate. Section 221 of the 1999 Constitution stipulates that “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.” So a candidate for an election is clearly the “property” of the political party.
The Supreme Court in Rotimi Amaechi vs INEC has said this much. Though this case is not in any way identical with the present case. The two cases are like two women with the same complexion, wearing the same aso ebi but having different looks, heights, and weights.
The APC should substitute their dead candidate and go on with the supplementary election. And as they jostle for who will replace Audu, let they remember their mortality.
The mighty Cyrus, King of Persia, one of the most glorious and successful kings of all time, wrote this epitaph for himself:
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“O man, whatsoever you are, and whence so ever you come, I know you will come to the same condition in which I now am. I am Cyrus, who brought the empire to the Persians: do not envy me, I beseech you, this little piece of ground which covers my body.”
First Baba Isa (FBI) writes from Abuja
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meandisa@gmail.com
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