James Faleke and late Abubakar Audu
The death of Prince Audu Abubakar, candidate of the All Progressives Congress, APC, at the ongoing governorship election in Nigeria’s Kogi state, has begun to draw constitutional questions.
Abubakar died shortly after the election, which he was leading. The election was however declared inconclusive by the Independent National Electoral Commission, INEC.
According to results declared by the Returning Officer, Emmanuel Kucha (Vice-Chancellor of the University of Agriculture, Makurdi), Audu scored 240,867 while Idris Wada of the Peoples Democratic Party garnered 199,514 votes.
Mr. Kucha said the margin of votes between Messrs Audu and Wada is 41,353.
And introducing the first twist, he declared that the election was inconclusive because the total number of registered voters in 91 polling units, in 18 local government areas, where election was cancelled is 49,953.
He said by INEC guideline, no return could be made for the election until supplementary election is held in areas where election was cancelled.
Analysing the situation, Festus Keyammo while commiserating with the deceased, cited legal documents to prove that Audu’s running mate in the election, James Abiodun Faleke, would automatically become the candidate of the party as replacement of Audu.
Though he agreed that the constitution never envisaged this type of political situation, the lawyer, who said he was in shock over the incident, gave his opinion: “admittedly, this is a strange and novel constitutional scenario. It has never happened in our constitutional history to the extent that when an election has been partially conducted (and not before or after the elections) a candidate dies. What then happens?
“This is a hybrid situation between what happened in the case of Atiku Abubakar/Boni Haruna in 1999 and the provision of section 33 of the Electoral Act, 2010.
“In the case of Atiku Abubakar/Boni Haruna [which is now a clear constitutional provision of section 181(1) of the 1999 Constitution (as amended)] the Supreme Court held, in effect, 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’.
“In the case of section 33 of the Electoral Act 2010 it provides, in effect, that if a person has been duly nominated as a candidate of his party and he dies before the election then the political party has the right to replace him with another candidate and not necessarily the Deputy Governorship candidate.
“Now, does the Kogi situation fit into section 181(1) of the Constitution as quoted above or section 33 of the Electoral Act mentioned above?
“My simple position is that the Kogi situation fits more into section 181(1) of the 1999 Constitution (as amended) and as such James Abiodun Faleke automatically becomes the governorship candidate of the APC.
“This is because even though the election in inconclusive, votes have been counted and allocated to Parties and candidates. As a result the joint ticket of Audu/Faleke has acquired some votes already.
“James Abiodun Faleke is as much entitled to those votes already counted as much as the late Abubakar Audu. He has a right to cling to those votes going into the supplementary election.
“There is only one problem, though. Who nominates Faleke’s Deputy? Unlike section 181(1) of the 1999 Constitution, he cannot approach the House of Assembly of the State to approve a nomination by him of a Deputy.
“This is because, in reality, he is not duly elected yet. Therefore it is only reasonable to conclude that it is APC (Faleke’s political party) that should submit the name of a fresh Deputy Governorship candidate to INEC for the supplementary election.
“This is the only position in this situation that accords with reason and good sense.”
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