Audu’s Death: Why There Should Be Fresh Polls In Kogi – Lawyer, Others

The death of Prince Abubakar Audu, the All Progressives Congress (APC) governorship candidate in Kogi state, has revealed a lacuna in the constitution.

This has made lawyers across the country to go back to their old books in order to proffer a constitutional solution to the situation at hand. Audu before his death was leading in the governorship election held on Saturday, November 21, wit

h over 40,000 votes and looked set to emerge as winner later because only 49,000 voters were expected to vote in the supplementary elections to be conducted in 59 polling units.

Although the INEC said it would apply available legal provisions on the recent development of the governorship election in the state, the Constitution and Electoral Act have no provisions for a situation where a leading candidate dies during an election.

A lawyer, Barrister Asiyanbi Olajide, said:

“The death of Audu Abubakar comes with some constitutional questions. What happens to the inconclusive elections? Who becomes the APC’s governorship candidate in the re-run elections in the affected areas. Will a new election be ordered in Kogi state? Many more questions, yet few answers.

The scenario would have been different if the results of the election were declared before the death of Audu Abubakar. In that case Section 181(1) of the Constitution of the Federal Republic of Nigeria would have been invoked. ‘Section 181. (1) 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’.

But the scenario in Kogi is different. Nobody has been declared the winner yet. Therein lies the constitutional/electoral challenge. But its not beyond resolution.

This is where Section 33 of the Electoral Act (as amended) 2010 can be invoked. It provides ‘Section 33. 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.

”Section 33 of the Electoral Act is wide enough to accommodate the scenario in Kogi State, where a candidate dies where the election is declared inconclusive. This is because Section 33 of the Electoral Act is not limited to pre-election substitution of a candidate. Pre-election substitution of a candidate is specifically provided for in Section 36(1) of the Electoral Act. ‘Section 36(1). If after the time for the delivery of nomination paper and before 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’. The postponement of the election as contemplated under Section 36 of the Electoral Act is to allow the party to present another candidate.

”However, if the candidate dies where the election is declared inconclusive as in Kogi, the party will be allowed to substitute the death candidate for the re-run election in the affected areas. This is the intention of Section 33 of the Electoral Act. Limiting Section 33 of the Electoral Act will be restricting its intention and deviating from the purposive rule of interpretation.

The party’s garnered votes in the inconclusive election remain valid. This is because the electorates voted for the party not the candidate.
In the end, no constitutional/electoral lacuna exists. The APC should invoke the provisions of Section 33 of the Electoral Act and substitute Audu Abubakar with another candidate, while their votes remain intact as they go in for the re-run elections in the affected areas, declared inconclusive.”