A Most Read: INEC in dilemma, lawyers differ over Audu’s death

* Constitutional crisis looms as Audu’s death divides lawyers Following the news of the demise of the All Progressive Congress (APC) gubernatorial candidate, Audu Abubakar in Kogi state on Sunday, lawyers across the country has stated that there is a lacuna as the constitution did not make provisions for such an occurrence. A National Commissioner, who spoke on the issue, said the Electoral Act did not specify what the commission should do in the circumstance that a candidate died when an election was declared inconclusive and the rerun had yet to hold. Section 37 of the Electoral Act, which deals with the withdrawal of candidates, merely explains how a candidate can be replaced if such a candidate dies after nomination. The section states, “If after the time of 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 about the fact of death, countermand the poll in which the deceased candidate was to participate and the commission shall appoint some other convenient date for the election.” Speaking on the issue, INEC’s Director of Voter Education and Publicity, Mr. Oluwole Osaze, told one of our correspondents that the commission did not have a position on the issue yet. While he first said the commission had yet to be informed about the death of Audu, Osaze later admitted that the Electoral Act was silent on the issue. Osaze said, “We have not been informed about the death. If what you are telling me is true, we are expected to be told. “Apart from that, the law doesn’t envisage that such a thing would happen and so, the commission has to meet and take a position. “We will call lawyers and brainstorm on the issue. This is very uncommon.” But another national commissioner, who spoke on condition of anonymity, said there should not be any problem in interpreting the Act, adding that the ticket was a joint one between Audu and his running mate, Mr. James Faleke. He said, “We have passed the stage of changing candidates. “Audu had a running mate, and besides that, the Supreme Court had ruled that the electorate vote for political parties and not individuals. So, his running mate will carry on.” Meanwhile, lawyers on Sunday differed on the implication of the death of Audu on the outcome of the poll, which the INEC declared inconclusive. Some lawyers argued that with the election already conducted in part, Audu’s running mate would have to step into his shoes. According to them, there is an obvious oversight and grave omission of such circumstances in the Nigerian constitution and to move forward, the doctrine of necessity may have to come in. The former Chairman of Nigerian Bar Association (NBA), Ikeja Branch, Monday Ubani; a member of the Ogun State Judiciary Service Commission, Abayomi Omoyinmi and a lecturerý of Law at University of Lagos (UNILAG), Akoka, Wahab Shittu said the process should be concluded. Ubani said: “Since the Electoral Act didn’t specifically provide for things like this happening in the course of an election, we would have to make recourse to the judicial pronouncement in the case of Rotimi Amaechi where the Supreme Court said in an election, it is the political party that is the beneficiary of election and not the candidate. That is why Amaechi that didn’t contest elections was sworn in. “In this situation, the deputy governorship candidate would have to step in to conclude the process. If he wins the election, the APC would then decide on another deputy for him”. According to Ubani, the time to choose a candidate through primary election had lapsed for all the political parties and it is not possible for any of the parties to go for primaries anymore. Omoyinmi said: “In the eyes of the law, the deputy should ordinarily conclude the re-run election for the office of the governor and it is now left for him to pick a new running mate”. Omoyinmi said the kind of situation in Kogi was not envisaged. Shittu said the matter could be viewed from different perspectives. Shittu said since the election was declared inconclusive, the running mate should be allowed to step in and conclude the process of the supplementary election. This, he said, has become necessary because the electoral law did not envisage such an incident–Audu’s death. On the other perspective, he said since it is the ýparty that fields the candidate, and that since the election has turned this way, the party would have to replace the governorship candidate. “Which means that election might be conducted afresh. The death of a candidate during the process of an election automatically voids the election. It is not a question of an election being inconclusive. The entire electoral process is now altered with the death of the governorship candidate,” he said. Constitutional lawyer and Senior Advocate of Nigeria (SAN) Malam Yusuf Ali said the situation in Kogi is “very complex, because the election has been declared inconclusive”. He said: “If he had won the election outright, it would have been a different matter, but with the way things are, it is very delicate.” Chief Niyi Akintola (SAN) said: “There can be fresh election. INEC can only conduct supplementary election in the 91 polling units. The death of Audu cannot nullify the election. It was APC that contested the governorship election not Audu as an individual.” Akintola explained that it is left to the APC to pick another candidate from among those that contested the governorship primary with Audu or ask the deputy governorship candidate, James Faleke to take over. “The decision lies with the APC,” he added. The presidential candidate of the United Progressive Party (UPP) in the last general elections, Chief Chekwas Okorie, said it was a very shocking development that threw everybody off-balance. He said: “ From every indication, it is a political party that wins an election; the result so far released suggests that the people of Kogi State are favourably disposed to an APC government to be in-charge of affairs in the next four years. What it therefore means is that the APC still has a chance, even his death, to govern the state, based on the result already declared. “So, they should follow up the supplementary election with the same atmosphere of peace that we witnessed in last Saturday’s election. If their choice is the APC, then let the APC rule them in the next four years.” The former Chairman of the Nigerian Bar Association, Ikeja chapter, Onyekachi Monday Ubani told our reporter that the matter is a serious one considering that there are no constitutional provisions for such matters. “This is a serious one that the constitution did not envisage. There are no precedents to such an occurrence and if we talk about the party choosing another candidate, we also have to consider that the period for selection of candidate has elapsed; there is a time limit for such things. But I think that in this case, the deputy will have to go for a fresh election. “If we go by the Supreme Court’s ruling on Rotimi Amaechi’s case where it was held that the party and not the candidate is the beneficiary of elections. So I believe the deputy will have to go for elections and if he wins, he will now choose a deputy. “This is a serious omission and the law needs to be amended quickly,” Ubani concluded Another human rights lawyer, Ikechukwu Ikeji Esq. also aligned with this. According to him, there are no known provisions for this scenario. “There are no laid down rules or provisions for this, the constitution never imagined such an occurrence, the only similar provision to this is Section 36 of the Electoral Act which indicates that if a candidate dies before the polls, INEC should cancel and postpone the election for 14 days. “But now that the election is already underway, the situation is different. In my secular view except further research contradicts what I have said, there should be a fresh election with the deputy or they should go to the Supreme Court for interpretation.” Also speaking, Barrister Olusayo Adeleye stated that there are no provisions for such and consequently, there will have to be a fresh election with Honorable James Abiodun Faleke, the deputy stepping in as the gubernatorial candidate. Barrister Kayode Ajayi also stated that since there are no provisions in the constitution, the APC will have to look for another candidate. The doctrine of necessity comes in since the vacuum needs to be filled. The law didn’t envisage this but there must be a way out. Remember when Atiku Abubakar as governor was chosen to be the Vice President, his deputy, Bonny Haruna stood in as the Governor and selected another deputy. Ndubuisi Fidelis Nwokporo This issue will not be completely laid to rest if INEC has not decided on the election. First, if the election is declared conclusive with AUDU as winner, Section 178 of the Constitution of the Federal Republic of Nigeria will take proper care of the situation. However where it is declared inconclusive which would have in a case where AUDU is alive sounded only in re-run for the particular areas identified and cancelled. Now that it is death of one of the candidate who would have taken part as candidate in the re-run, the option is fresh election. Barrister Taoheed Asudemade was also of the same opinion. He stated that since there are no provisions, the APC will have to look for another candidate while INEC will conduct another election. His death has nullified the one that is on-going.]]>