The tragic event of Sunday, November 22, 2015 is novel in the history of elections in Nigeria. Never before had a candidate died after commencement of election. Prince Abubakar Audu would be the first. His death has exposed the lacuna in our laws. There is no express provision in the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999 governing such situation.
The governorship election has commenced, results collated and announced save that there was no declaration and return yet because the margin of win between the two leading candidate is not in excess of the total number of registered voters in the polling unit(s) where election was cancelled or not held. Section 153 of the Electoral Act 2010 gave INEC powers to make Regulations. Pursuant to this INEC in its 2015 Approved Guidelines and Regulations for the conduct of 2015 General Elections provided in respect final collation and declaration of governorship result at state level that the State Collation/ Returning Officer for the Governorship election shall where the margin of win between the two leading candidate is not in excess of the total number of registered voters in the polling unit(s) where election was cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new form EC 8D and subsequently recorded into form EC 8E for declaration and return.
Audu had polled 240,867 votes, while Wada polled 199,514. The difference between the scores of the candidates is 41,353 votes. However, the total number of registered voters in polling units were election was cancelled is 49,953. The margin of win is less with 8600 votes. This has made the holding of a supplementary election imperative. However, Audu died while INEC was yet to fix a date for the supplementary election. His death had no doubt created a vacuum and raised serious legal and constitutional puzzle.
Neither the Electoral Act nor the Constitution made provision regarding what should be done in the event that a candidate dies after commencement of poll but before declaration of results and return of a winner. There are two scenarios which the law took care of. The first is where the Governor-Elect dies before subscribing the oath of allegiance and the Oath of Office or where both the Governor or Deputy Governor duly elected die or for any reason unable to assume office before the inauguration of the House of Assembly. The second is where a candidate dies before the commencement of poll. In the first case, the Deputy Governor-elect shall be sworn in and he shall in turn nominate another person to be his Deputy. See section 181(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), but where both dies INEC shall conduct a fresh election to elect a Governor and Deputy Governor. See subsection 2 of section 181 supra. In the second case, the Resident Electoral Commissioner shall countermand the poll and appoint some convenient date for the election within 14 days. See section 36(1) of the Electoral Act 2010. In the present case, Audu had neither been declared as the Governor-Elect and neither did he die before the commencement of the poll. Here, he died after the commencement of the poll. There is no provision in the law of what happens when a candidate dies after commencement of the poll. The Kogi situation therefore does not fit into any of the forgoing provisions.
LEGAL ISSUES
The legal posers here include: What is the status of the election the governorship candidate having died after the commencement of the poll but before a declaration and return? Is it a nullity? Should it be cancelled and a fresh election conducted? Any attempt at answering the above questions will throw up further questions such as: Do the votes already earned go to no issue? Would the votes transmit to or vest on the party and the Deputy Governorship candidate. Would the party be entitled to replace Audu? If the party is so entitled what factors should guide the choice of who replaces Audu? Can the party go outside of the aspirants who contested along with Audu in the primaries to pick a replacement? Does the runner-up in the gubernatorial primaries entitled to priority over other aspirants. Can the party organize another fresh selection/nomination process?
LEGAL OPTIONS
Opinions are divided as to what steps INEC should take. Some lawyers hold the view that a fresh election should be conducted, others hold the view that Audu’s Deputy should step into his shoes and still others hold the view that the party should nominate another person who participated in the gubernatorial primaries with Audu. My view is that the death of Audu has put paid to the entire exercise. The time, energy and expense put therein have been extinguished. The election is inchoate and a fresh election should be conducted.
The Supreme Court in the case of Amaechi v. INEC (2008) 5 NWLR (pt 1080) 227 held that victory belongs to the party. This decision was followed in Odedo v INEC (2008) 17 NWLR (Pt 1117) 554. These decisions can be distinguished from the case at hand. There is no winner yet. The election is inconclusive.
The Constitution provided for only one situation in which a fresh election cannot be conducted. That is where the Governor-Elect dies before subscribing the oath of allegiance and the oath of office. In such circumstance, the Deputy-Governor elect would be sworn in. See section 181(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). But where both the Governor-Elect and Deputy Governor-Elect die before subscribing the oath of allegiance and the oath of office, a new election will be held. See section 181(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). This casts doubt on the veracity of the argument or proposition that the votes already earned should vest in the party. If the argument that the party owns the victory is anything to go by, then section 181(2) would be meaningless as a political party may only be required to present two candidates, one as Governor and the other as Deputy Governor to claim the position it has won. But this doesn’t seem to be so. I am not unaware of the argument that a Governor and his deputy has a joint ticket, but we must not gloss over the provision of section 187(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which is to the effect that a Deputy Governorship candidate shall be duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the Constitution. Audu’s Deputy has not been duly elected. In fact his nomination for the office of Deputy Governor ceases to have effect since his principal has died. The election is inchoate. A Deputy Governorship candidate is nominated by a Governorship candidate. So when the Governorship candidate is no more, the nomination of the Deputy fails as it has nothing to stand on.
I am not unmindful of the double standard that will be created if this position is taken in the light of the decisions in Amaechi v. INEC and Odedo v. INEC. The Constitution in clear terms makes reference to candidates and not political parties. The role of political parties ends with nomination and sponsorship. This perhaps informs why Niki Tobi, J.S.C in Odedo’s case nullified the election of Obinna Chidoka as member of the House of Representatives and declared Odedo to contest the election on the platform of PDP. However, his brother Justices held to the earlier decision in Amaechi and made Odedo to assume the membership of the House of Representatives without the necessity of a fresh election. These lines of decisions do not accord with the Constitution, but it remains a binding precedent.
However, those decisions can further be distinguished considering that they flow from pre-election matters bordering on substitutions and largely at an intraparty level. So the acceptable legal option available to INEC is to allow APC to nominate a new Governorship and Deputy Governorship Candidates who will participate in a fresh election.
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Written by John C. Nwobodo, Esq.
