Few days ago the current Minister of Niger Delta, Distinguished Senator Godswill Akpabio wrote to his political party All Progressive Congress (APC) intimating them of his intention not to run for the forthcoming Rerun Election slated for early next year due to his current status as the substantive minister of the Niger Delta where he has the greater responsibility to turn the fortunes of a whole region rather the role of representing just a senatorial district in a State of Akwa Ibom. In doing this, he placed his reliance and rightly too on the express provisions of the law. Section 33 of the Electoral Act 2010 as Amended stated:
“A political party shall not be allowed to change or substitute candidate whose name has been submitted pursuant to section 32 of this Act, except in the case of death or withdrawal by the candidate”.
In this case, the withdrawal is by the choice of the candidate and that choice is permitted and allowed by the law. Obviously there is a lacuna in that provision of the Electoral Act as to whether a candidate can withdraw during a rerun election. To fill in the lacuna, a rerun election is “election” for the purpose of determining the fate of a candidate and so a candidate can in the absence of any provision deterring the candidate from withdrawing, withdraw himself or herself in the race including a rerun election.
The position of the law is that the candidate who has withdrawn has a responsibility to fulfill certain conditions and that condition is specified in Section 35 of the Electoral Act 2010 as Amended which provided:
“A candidate may withdraw his candidature by notice in writing signed hy him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to the election”.
Recently the said Candidate in the person of Distinguished Senator Godswill Akpabio did write and inform his party of his withdrawal from the race and advising the party to communicate same to the electoral umpire including substituting him for the race which is clearly in accordance with the provision of the law.
One is therefore flabbergasted and taken aback when the State Publicity Secretary of the Peoples Democratic Party in Akwa Ibom State held a hurried press conference during which he neither addressed this legal positions as herein stated but embarked on frolic of dishing insults and abuse which seems to be their peculiar stock in trade in that part of the State. He clearly misled his misguided party men when he said: “Senator Akpabio was a party before the court and the order of the court is that he should go back for a rerun in Essien-Udim, that is an order of the court and as a lawyer, he should obey that order and submit himself for confirmatory defeat”.
This is half-truth and clearly misleading. The true position is that His Excellency Godswill Akpabio was a candidate of the APC during the last senatorial election in Akwa Ibom on the 23rd of February 2019. The total accredited votes for Essien Udim LGA was about 74,000 voters. The results as collated from the various polling units in the Local Government Area in favour of the Distinguished Senator Akpabio was 61,329 total votes.
However when they eventually recorded the result for the Ex-Governor, they imputed the sum of 6000 as his votes in the said local government area as his score. Shocking was the revelation that for Accredited Voters the card readers of INEC for the Local Government captured about 19,000 voters, whereas they mischievously recorded 9000 as accredited voters without any valid explanation during cross-examination in the Tribunal proceedings. The Distinguished Senator challenged the malfeasance at the election tribunal, where the majority gave judgement that INEC was right in their outright manipulations of results. However, minority judgement saw things differently and held that the umpire was wrong in imputing the figure of 6000 to the Distinguished Senator after attempting to alter the figure of 61,329 that was his total score and the Court of Appeal, Calabar affirmed the minority opinion, but held that a fresh election be held at the Essien Udim to determine the correct position of the parties to the electoral contest. Before the conclusion of the action initiated by the Distinguished Senator at the Election Tribunal, he was nominated and confirmed the Minister of the Niger Delta, a position he is holding till today. The decision of the election tribunal was appealed to the court of appeal, Calabar which eventually ordered a rerun.
In 2015 in Kogi State, something similar happened even though it is known that it was death that occurred that took away the then-candidate His Excellency late Abubakar Audu, the lacuna was filled by the law allowing the candidate (Mr Yahaya Bello) with the second-highest vote to complete the electoral process during the rerun. That position received the confirmation of the Supreme Court of Nigeria. That process led to the emergence of His Excellency Yahaya Bello who is currently the governor of Kogi State.
The issue really is the lacuna in the law and how the law solved the riddle. The earlier riddle was that death took away the candidate before the completion of the electoral process and that made his then deputy not qualified to step into his shoes because the process was not yet completed. The man who participated in the primary election and came second was put forward by the party and he eventually emerged the winner after the rerun election. The Electoral Act just like in the issue of death before the conclusion of the electoral process, never envisaged a position where a candidate who contested the election and before the conclusion is appointed either as a minister or given any other higher position in government. In the circumstance where the candidate prefers the higher position given to him or her, what will be the fate of the rerun election? Resort must be made to the various sections of the Electoral Act 2010 as Amended to wit Sections 33 and 35 already cited and quoted above.
Having complied with the law in taking appropriate steps, one hopes that the APC as a political party will take the next appropriate steps too recommended by law by (1) Communicating with INEC of the withdrawal of their candidate which the law permits and (2) choosing the candidate that will run and complete the ongoing electoral process which is the rerun.
This case has presented a novel issue which I think the National Assembly should take into consideration when amending the Electoral Act to fill in the lacuna in a situation where a contestant is given higher position before the completion of the electoral process. The position will be and rightly too that that candidate has a right to withdraw and allow the political party the choice of substitution as prescribed by the Electoral Act and this withdrawal covers a rerun election as well.
Written By Ife Ajayi Esq, Lagos based Legal Practitioner.