With a petition on his legitimacy to have inherited the votes of the Audu/Faleke ticket still pending before the Kogi State Election Petitions’ Tribunal, Kogi State Governor Yahaya Bello may have found a suitable deputy, whose names may be forwarded to the House of Assembly for consideration any moment from now. But, relying on Section 187(1) of the Constitution, OLARINDE YESUFU, a legal analyst with The Nation newspaper, says the Bello erred by going into the election without a running mate.
Kogi State found itself on the brink of history on January 27, when Alhaji Yahaya Bello was sworn in as its fourth governor under a democratic dispensation. His inauguration marked the culmination of some electoral manipulations that preceded the tragic demise of Prince Abubakar Audu shortly after the November 2, last year governorship election in the state. They were engineered by Mr. Abubakar Malami, the Attorney-General of the Federation (AGF), engendered by Chief John Odigie-Oyegun, the National Chairman of the All Progressives Congress (APC), and accomplished by the Independent National Electoral Commission (INEC).
Kogi State, like many states in the federation, is a multi-ethnic state where everyone is conscious of his or her ethnic or tribal origin. The main ethnic groups are Igala, Ebira and Okun-Yoruba, Nupe, Bassa, Egbura-Koto, Kakanda and Ogori among others. The ethnic cleavage in the state and sentiments associated with it played out clearly at the inauguration of Alhaji Yahaya Bello on January 27. The Ebira saw the occasion as one in which one of their own was “divinely elected” (not democratically elected) governor of Kogi State. They were duly mobilized to celebrate him at the inauguration. They filled the Confluence Stadium in Lokoja to the brim. It was indeed a day that can rightly be described as Ebira Day. For the Igala, it was a moody day that reminded them of the loss of their son and political leader (Prince Abubakar Audu) in tragic and cloudy circumstances. To the Okun-Yoruba, January 27 was a day of mourning, in which they ruminated over their plight in a state they call their own, but are brutally oppressed and repressed. Their son, James Abiodun Faleke, had held a joint ticket with the late Prince Abubakar Audu at the November 21, 2015 election on the platform of APC and constitutionally entitled to succeed him upon his demise but was denied the right.
On November 21, last year, INEC organised the Kogi State governorship election. The election was a straight contest between the APC and People’s Democratic Party (PDP). APC featured Prince Audu and Faleke as governorship and deputy governorship candidates respectively. On the other hand, PDP fielded Capt. Idris Wada and Abayomi Awoniyi, an architect. The name of Alhaji Yahaya Bello did not feature at any stage of the election. It only came up at a later stage, upon a declaration by INEC that the November 21 election was inconclusive. The electoral body, thereafter, arranged for the conduct of a “supplementary election” that held on December 5. The spurious reason given by INEC for the inconclusiveness of the November 21 election was that there were 49,000 voters in the registers of some 91 polling units, which figure exceeded the 41,000 votes with which the late Prince Audu and Faleke defeated Capt. Wada and Awoniyi. Significantly, INEC did not specify the number of votes cancelled in each of the 91 units or the total sum of the votes from those units that necessitated the supplementary election. It erroneously reckoned with the number of registered voters in the 91 units. At the end of the so-called supplementary election, less than 13,000 votes were recorded, out of which Alhaji Bello scored only 6,000. INEC, shockingly, announced him the winner and returned him elected as governor of Kogi State. He was inaugurated on January.
The legitimacy question
Alhaji Bello now bears the mark of illegitimacy as he scored only 6,000 votes to become a governor. The implication is that he did not receive the votes of the majority of the electorate in the state. Article 21 (3) of the Universal Declaration of Human Rights specifically provides that the will of the people shall be the basis of authority of government. This is a straight forward statement of principle of representative democracy, which is seen as an essential element of legitimisation of governments implying that whoever desires to govern the people must be legitimately elected.
This internationally recognised principle finds expression in the electoral jurisprudence of Nigeria. First, section 179 (2) of the 1999 Constitution of the Federal Republic of Nigeria requires that a person shall only be considered as duly elected to the Office of a State Governor if he satisfies two conditions: (a) he must have scored majority of the votes cast at the election, and (b) such votes must spread over the state in such a way that he has not less than one quarter of all the votes cast in each of at least two-thirds of all the local government areas in the state. Second, section 141 of the Electoral Act 2010 also stipulates, in an unambiguous language, that a person shall not, under any circumstance, be declared a winner at an election in which such a person has not fully participated in all the stages of the said election. The essence of these provisions is to ensure that the candidate elected in a gubernatorial electoral process emerges by popular votes.
An electoral process necessarily consists of the following stages: selection and nomination of candidates; sponsorship by a political party; campaign for votes from the electorate; casting of the ballots; declaration and return of the winner. In simple terms, a candidate is required to be nominated and sponsored by a political party. Such a candidate is further required to canvass for votes of the electorate and stand for the election. At the end, a declaration of the winner is made by the electoral body, based on relevant provisions of the constitution.
When not to emerge a party’s candidate
Selection and nomination of candidates take place at the preliminary stage of an election. They are often referred to as pre-election matters as they must necessarily take place before the commencement of an election. In Okonkwo v. INEC, nomination at an election is defined as the act of proposing a person to an electoral body as a candidate for an elective body. Under the constitution of Federal Republic of Nigeria, no candidate can contest an election unless he is nominated and sponsored by a political party. There is no room for independent candidacy.
It was in exercise of this prerogative or exclusive power of political parties to nominate and sponsor candidates that the APC organised a primary election last year in accordance with the provisions of the Electoral Act 2010. At the said primaries, the late Prince Audu emerged the nominated candidate of the party. Alhaji Bello contested the primary election along with other aspirants but failed. A primary election is not valid for all purposes and at all times. It is circumscribed in scope and purpose. The Supreme Court was categorical on this point when it held in CPC v. Ombugadu that “the sole purpose of a party’s primary election is the emergence of one of the contestants as the party’s candidate at the election.” It follows that once the primary election of a political party has produced a candidate, its purpose is served. There is no law that permits a political party, under any guise or circumstance, (death of a candidate inclusive) to revert back to the result of a primary election that had produced a candidate, in order to produce a supplementary candidate at a later stage. It is jurisprudentially unthinkable that a party primary election would be made to produce two candidates at different times in an election. An election is not a military exercise in which officers and men are kept as reserves for future use. Aspirants who flunk out at primaries are dropped and remain so, for all practical purposes. While political parties are allowed to substitute their candidates, this right is exercisable before the commencement of an election and not after.
Upon being nominated as his party’s candidate, the late Prince Audu, in compliance with the provision of Section 187(1) of the constitution presented Faleke as his running mate. Their political party (APC), subsequently presented their names to INEC for the governorship election conducted on November 21, 2015, thereby creating a joint ticket of Audu/ Faleke, sponsored by the APC. At the said election, Alhaji Bello’s name did not feature as the party’s candidate. And of course, since he did not participate at the election, he scored no vote.
Audu’s death not reason for INEC’s declaration
The claim of INEC that the November 21 election was inconclusive is not only spurious and deceptive but a bastardisation of the whole electoral process. Significantly, INEC did not use Prince Audu’s death as the basis for the inconclusiveness of the election. The only situation where INEC can hold an election inconclusive is contained in Section 53 (2) of the Electoral Act 2010; that is, where the cancelled votes announced by INEC would affect the overall election in the constituency. For the avoidance of doubts the said section is quoted hereunder:
“Where the votes cast in any polling unit exceed the number of registered voters in that polling unit, the result of that polling unit shall be declared void by the Commission and another election may be conducted at a date to be fixed by the Commission where the result at the polling unit may affect the overall result in the constituency, (underlining for emphasis).
Section 178 (4) of the 1999 Constitution clarifies the point that for the purpose of a governorship election, a state shall be regarded as one constituency. INEC, therefore, was wrong to have held the election of November 21, 2015 inconclusive without proof that the votes cancelled in the 91 polling units affected the overall result of the governorship election in Kogi State.
Another cogent reason why the November 21, last year election cannot be said to be inconclusive, as erroneously asserted by INEC, is the fact that Prince Audu and Faleke, at the end of the polls, met the constitutional requirements stipulated under Section 179 (2), by scoring majority of the votes cast at the election and having not less than one-quarter of all the votes cast in all the local government areas in the state. Consequently, the constitution already deemed Prince Audu duly elected. And what is more, by the time INEC declared the result inconclusive, all the results in all the wards and local government areas had been announced by the commission. The failure of INEC to declare Prince Audu elected, therefore, was a clear breach of the provisions of Section 179 (2) of the Constitution. On the part of the late Prince Audu and Faleke, there was nothing the constitution required of them that had not been accomplished. It was just that someone somewhere was derelict in his constitutional responsibilities for some contrived extra-legal reasons.
It is clear that the basic reason why the constitution does not permit the substitution of a gubernatorial candidate after the commencement of an election is the contingent arrangement the constitution provides for a running mate as a necessity for a governorship election. Section 187 (1) of the Constitution makes it mandatory for a governorship candidate to nominate another candidate as his associate, who will be his running mate and would be the deputy governor upon being duly elected as governor.
Running without a running mate unconstitutional
As a matter of fact, the same section 187 (1) of the Constitution treats the nomination of a candidate without a running mate as invalid. It is also obvious that a governorship candidate cannot deem another candidate as his running mate. In so far as INEC announced to the whole world that the late Prince Audu died after the announcement of the inconclusiveness of the November 21 election, and since the said Prince Audu satisfied the conditions stipulated under Section 179 (2) of the Constitution, it ought to have applied the provision of Section 181 of the constitution which states 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.
If INEC had done this, the embarrassment it has caused the electorate of Kogi State would have been avoided. The entire people of Kogi and not a section of the state would also have rejoiced that the ticket they voted in as their governor occupies the seat. Indeed, it is on INEC’s record, from the result announced by it, that the Ebira segment of Kogi State voted massively for Audu/Faleke ticket at the November 21, last year election. Out of the four core Ebira local government areas of Okene, Adavi, Okehi and Ajaokuta, only Okene voted Wada/Awoniyi because of anti-party activities of Yahaya Bello. The remaining three local government areas voted Audu/Faleke. Foisting Yahaya Bello on Kogi is, therefore, unconscionable, illegal and unconstitutional.
There is everything wrong in the election of Alhaji Bello as the Governor of Kogi State. At one stage or another, one form of unconstitutionality or illegality was committed with recklessness and impunity. His selection to replace the late Prince Audu by APC to contest the “supplementary election” of December 5 is legally faulty and constitutionally sacrilegious. He was not elected by the popular votes and will of the people of Kogi State. The governorship election of November 21, 2015 had been won and lost before he came in. He scored only 6, 000 votes out of over 400,000 votes cast at the election(s). Clearly, if APC had featured him ab initio as its governorship candidate at the November 21 election, he would surely have been beaten, hands down, by Capt. Wada. This buttresses the fact that people usually vote for candidates and not parties. More outrageous to the letter and spirit of the constitution is the fact that Alhaji Bello contested the dubious supplementary election without a running mate. This clearly contravenes the clear provision of Section 187(1) of the Constitution.