By Ifeanyi Ottah
National Electoral Commission, (INEC), and other various stakeholders in the country are to take Nigeria’s nascent democracy to another level.
INEC, under Professor Mahmood Yakubu, had in his inaugural speech, promised to consolidate on the good work done by Prof. Attahiru Jega, the former INEC boss, by giving Nigeria free, fair and credible elections in both Kogi and Bayelsa States.
However, former governor, Prince Abubakar Audu was near realizing his coveted ambition to return to the Kogi State Government House when his pet dream was scuttled irretrievably. He died. Before Prince Audu’s sudden demise, there had been jubilation and back-slapping that accompanied the declaration of most of the results of that Saturday’s governorship election in which he was leading with over 41, 000 votes.
Sources close to the family in Ogbonicha said he died even before the collation of results commenced.
Audu, it was gathered, had complained of stomach ache shortly after casting his vote and started vomiting blood only to pass on shortly after.
The Independent National Electoral Commission (INEC)’s Returning Officer, Prof. Emmanuel Kucha, who is the Vice-Chancellor of the Federal University of Agriculture, Makurdi, had declared that Saturday’s governorship elections inconclusive, saying that though Audu was leading with over 41, 000 votes, there would be rerun in 91 polling units to take care of 49, 553 voters.
He said the provision of the law as contained in the INEC guidelines stated that the winning margin must be in excess of the total number of votes in units where elections were cancelled while in the current case, elections were cancelled in 91 units across 18 local governments.
He said the total number of votes in the areas added up to 49, 953 while the margin of win was 41, 353, giving a difference of 8,600.
In the same vein, INEC had asked the All Progressives Congress to fill the vacuum created by the death of its Kogi State governorship election candidate, Abubakar Audu, in order to continue with supplementary election.
In a statement signed by the secretary to the commission, Augusta Ogakwu, INEC announced it would allow the conclusion of the elections process by conducting supplementary election in the remaining 91 polling units where election was cancelled.
Meanwhile, the running mate to late Abubakar Audu, has asked INEC to declare him governor-elect.
James Faleke, in a November 26 letter to INEC’s Chairman, Prof. Mahmood Yakubu, insisted that under Section 187 of the 1999 Constitution, he was duly elected as deputy governor of Kogi State.
While expressing sadness over the demise of his principal, Abubakar Audu, the deputy governorship candidate said INEC had no right under the law, to declare the election inconclusive.
He accused INEC of deliberately creating what he called “legal conundrum” and urged his party, the APC not to be a party to the action.
“In law and logic, no new candidate can inherit or be a beneficiary of the votes already cast, counted and declared by INEC before that candidate was nominated and purportedly sponsored,” Mr. Faleke wrote through his counsel, Wole Olanipekun.
“Assuming without conceding that INEC is even right to order a supplementary election, the votes already cast, counted and declared on Saturday, 25th November 2015, were votes for the joint constitutional ticket of Prince Abubakar Audu and our client.
“Therefore, no new or ‘supplementary’ candidate can hijack, aggregate, appropriate or inherit the said votes.”
In another letter to APC Chairman, Chief John Oyegun, Mr. Faleke urged his party to distance itself from the “Greek Gift” being offered to it to nominate a new candidate for a planned supplementary election in 91 polling units.
He said the election had already been won and lost, and that the party should rather support him in actualizing the mandate already given to APC and its candidates.
The APC, on its part, resolved to organise a fresh primary election to pick a new candidate for the supplementary election fixed for December 5.
But in his three-page letter to INEC, Mr. Faleke argued that in accordance with the Electoral Act and INEC Guidelines/Regulations, results of the election were declared, first at the polling unit level, then at the ward level and later at the local government level.
He said as the declaration was being made by the electoral body, it was simultaneously relayed and announced on radio and television stations, both private and public, as well as on social media.
He also said the necessary INEC forms, including but not limited to Forms ECBA, ECBB, and ECBC were filled, signed and made available to the respective political parties which participated at the election.
Stating that the election to the office of the governor is regulated by sections 178 and 179 of the Constitution while nomination to the office is regulated by Section 187 of the document, Mr. Faleke insisted the election had been completed in accordance with the provisions of the Constitution.
“Therefore, INEC has no alternative or discretion other than to announce the result of the election and declare our client as the winner,” he said.
“With much respect to INEC under your very distinguished chairmanship, the reasons given by INEC to declare the election as inconclusive are alien to the Constitution and, therefore, unconstitutional.
“With further respect to INEC, cancellation of election result by it cannot be a ground for declaring any election as inconclusive.
“INEC is enjoined to declare a winner of an election based on lawful votes cast. Thus, the cancelled results by INEC for whatever reasons and assuming without conceding that INEC could legitimately cancel such results, amount to unlawful votes, in effect, INEC cannot declare a well concluded election as inconclusive based on unlawful votes.”
Mr. Faleke said INEC’s wrong declaration of the result as inconclusive had no nexus with the passing on of Mr. Audu.
He advised that INEC “should not confuse the situation with what it intended in Section 33 of the Electoral Act because the situation on ground has nothing to do with changing or substitution of the name of a candidate before election.” He added, “Mr. Chairman Sir, this is a rather simple and straightforward matter which does not need any delay, foot dragging or procrastination. It is a constitutional imperative.
“Put in another way, INEC has a burden duty to declare our client as the winner of the election. Any attempt to conduct any supplementary election in any unit whatsoever and howsoever will amount to INEC breaching and flouting the constitution, and our client will definitely challenge it.” In the letter addressed to the National Chairman of the APC, John Oyegun, Mr. Olanipekun, on behalf of Mr. Faleke, Olanipekun said the scores already announced for APC was final and binding.
He suggested that by parity of reasoning, the APC should be declared the winner of the election while Mr. Faleke is declared as governor-elect.
However, Nigeria’s opposition party, the Peoples Democratic Party (PDP), has also called on (INEC) to declare its candidate, Governor Idris Wada the winner of the November 21 governorship elections in Kogi State.
But, PDP in a communiqué issued at the end of its national caucus meeting held in Abuja is also seeking the exclusion of the All Progressives Congress (APC) from the supplementary election slated for December 5.
The communiqué, signed by the National Publicity Secretary of the PDP, Chief Olisa Metuh, insisted that with the death of the APC’s candidate, Prince Abubakar Audu during the process of the election, the APC has legally “crashed out” of the race.
The PDP has challenged INEC’s position, saying no known law or constitutional provision allowed the substituting of candidates, once the ballot process has commenced. The party has threatened to challenge INEC’s decision in court.
“The PDP completely rejects the decision of INEC in yielding to the unlawful prompting of a clearly partisan Attorney General of the Federation (AGF), Mallam Abubakar Malami, to allow APC to substitute a candidate in the middle of an election, even when such has no place in the Constitution and the Electoral Act.”
“With the unfortunate death of Prince Abubakar Audu, the APC has no valid candidate in the election, leaving INEC with no other lawful option than to declare the PDP candidate, Capt. Idris Wada winner of the election”, the communiqué said.
The party noted that no part of the provisions of the Constitution or the Electoral Act did, in any way whatsoever, support the substitution of candidates for election in the middle of the ballot process.
The PDP insisted that if APC is allowed to substitute its original candidate, then, the party would have fielded two separate candidates in the same election, a scenario which it said, was completely alien to electoral laws and to any known democratic norms and practice in the world over.
The communiqué said, “We observed that the leadership of INEC as presently constituted under the chairmanship of Prof. Mahmood Yakubu, has demonstrated that it is incapable of neutrality and as such, cannot be vested with the conduct of the Kogi Governorship supplementary election as well as the December 5, 2015 Bayelsa Governorship Election.
“As a result, PDP Caucus demands the immediate resignation of the chairman and all national commissioners of INEC to pave the way for a new non-partisan commission to conduct the forth-coming elections.
“Caucus also demands the immediate resignation of the Attorney General of the Federation (AGF), Mallam Abubakar Malami for deliberately misleading INEC into arriving at the unconstitutional decision of allowing APC to substitute its candidate in the inconclusive election.
“Caucus also alerts that the AGF, INEC and APC are creating a scenario where a loser in a primary will patiently wait for the winning candidate to finish election and then, have him either poisoned or assassinated before the final collation of results.
“Caucus calls on the international community to prevail on the APC government to stop this ceaseless assault on our democracy.”
Unfortunately, PDP’s outcry was taken as that of a drowning opposition as the orders of the Attorney-General of the Federation, Mallam Abubakar Mallami was obeyed. The APC rose from a fresh primaries and chose Alhaji Yahaya Bello as replacement for late Abubakar Audu.
Mallami’s orders for the APC to replace late Audu was given at a seminar organised by the Nigerian Law Reforms Commission in Abuja.
At the moment, the dust being raised in the Kogi State governorship elections is not rising from the possible conduct of a primary election to replace dead Audu. Rather, following APC’s resolution which named Yahaya Bello as Audu’s replacement, an intra-party disagreement is now tearing the party into shreds.
James Abiodun Faleke, late Abubakar Audu’s running mate in the inconclusive elections, has rejected APC’s decision to field Bello as gubernatorial candidate ahead of him who was running mate to late Audu.
“It is morally and legally wrong for APC to pick Bello, who worked against our party during the election which made the PDP to win his polling unit, ward and local government during the election,” he lamented.
“Bello refused to attend all the APC rallies even when the vice president came for the rally in his local government.
In giving orders for a replacement, the AGF had explained: “By virtue of the provisions of Section 221 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the votes cast were for the political party and by Section 33 of the Electoral Act 2010, the political party had the right to substitute its candidate in case of death.”
Malami said, “The issue is very straightforward. Fundamentally, Section 33 of the Electoral Act is very clear that in case of death, the right for substitution by a political party is sustained by the provisions of Section 33 of the Electoral Act.
“And if you have a community reading of that section with Section 221 of the constitution, which clearly indicates that the right to votes is the right of a political party, and the party in this case, the APC, has participated in the conduct of the election.
“It is therefore, apparent that the combination of the community reading of the two provisions does not leave any room for conjecture.”
“APC as a party, is entitled to substitution by the clear provisions of Section 33 of the Electoral Act. Also, Section 221 of the Constitution is clear that the votes that were cast were cast in favour of the APC.
“Arising from those deductions, it does not require any legal interpretation. The interpretation is clear; APC will substitute, which right has been sustained by Section 33 of the Electoral Act.’’
The Section 33 of the Electoral Act 2010, which the minister referred to states, “A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act, except in the case of death or withdrawal by the candidate.”
Clarifying whether Faleke would become the APC candidate or not, Malami said: “It all depends on the appreciation of issues arising from the primary conducted before now.”
“There was a first and a second candidate. The primary that had taken place over time had not, by anyway, been nullified. And it is recognized by law.”
“But then, a further consideration would be the idea of conducting another primary; but that is not envisaged in view of the sustainability of the first primary.”
KOGI AND ITS UNENDING POLITICAL CONTROVERSIES:
For the second time in three years, Kogi State is back in the news. No thanks to the fresh constitutional crisis triggered by the governorship politics of the Confluence State.
It could be recalled that on January 27, 2012, the state was plunged into turmoil following the sack of former Governor Ibrahim Idris and four others by the Supreme Court over tenure palaver. Rather than allow the then Speaker of the House of Assembly, Abdullahi Bello (an Ebira) to succeed him as the acting governor in line with the Supreme Court ruling, the ex-governor pulled a fast legal string by taking advantage of Section185 (2) of the 1999 Constitution (as amended), to conduct the swearing-in of incumbent Governor, Idris Wada by the President of the Customary Court of Appeal, Ibrahim Atadoga. He sidelined the Chief Judge, Justice Nasir Ajanah, a kinsman to the former speaker from Ebira.
Barely three months to the end of his tenure, another constitutional crisis is being thrown up by Wada’s attempt to get a fresh four-year mandate and a fierce electoral challenge from the APC. Behind it all are the declaration inconclusive, of last month’s governorship election by INEC following the cancellation of elections in 91 polling units and the death of APC governorship candidate, Prince Abubakar Audu.
The ignorance of the law by the Returning Officer for Kogi Governorship poll, Prof. Emmanuel Kucha and lack of proper guidance by senior INEC officials deployed for the election, accounted for the stalemate.
Prof. Kucha, who is a Vice Chancellor, was so fixated on the guidelines for the 2015 General Elections. He relied on Section M, paragraph 4 of INEC’s Approved Guidelines and Regulations for the Conduct of the 2015 General Elections.
The section reads: “Where the margin between the two leading candidates is not in excess of the total number of registered voters of the polling units where elections were cancelled or not held, the returning officer will decline to make a return until another poll has taken place and the result incorporated…
“Applying the provisions of the above guidelines, therefore, the total number of registered voters of the polling units where elections were cancelled or not held is in excess of the margin of win between the two leading candidates. Consequently, this election is therefore, inconclusive and I hereby so declare.”
Contrary to the above application, it is trite law that the 1999 Constitution is the supreme law of the land. In fact, Section 1 sub-section 3 says: “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
It was learnt that INEC ought to have declared Audu Abubakar as the duly elected governor in line with Section 179 of the Constitution.
The section says: “A candidate for an election to the office of governor of a state shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election (a) he has a majority of Yes votes over No votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations,
“A candidate for an election to the office of governor of a state shall be deemed to have been duly elected where, there being two or more candidates: (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of all votes cast in each of at least two-thirds of all the local government areas in the state.
“In default of a candidate duly elected in accordance with subsection (2) of this section, there shall be a second election in accordance with subsection (4) of this section at which the only candidate shall be- (a) the candidate who secured the highest number of votes cast at the election and (b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the state. So, however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be second candidate.”
It was also gathered that even if INEC stuck to the guidelines, Audu ought to be declared the winner of the poll because, out of the so-called 49,000 registered voters in the 91 polling units where votes were cancelled, not all the registered voters collected their Permanent Voters Cards (PVCs).
A source said: “APC was leading by 41,000 votes. INEC has said the supplementary election which is not necessary- should take place in 91 polling units. The number of registered voters in those units is 49,000. Out of this, 25,000 have PVCs. If all of them vote for PDP, the result won’t be enough to stop APC’s victory. INEC should not have declared the election inconclusive.”
A member of the APC, who spoke in confidence, said: “Our party is of the opinion that the Returning Officer, Prof. Emmanuel Kucha erred by not declaring its candidate, Prince Abubakar Audu, the winner of Saturday poll. We have assembled a team of senior lawyers to advise the party on the way forward.”
Consequently, the Ekiti State Governor, Mr Ayodele Fayose, has accused President Muhammadu Buhari of encouraging anarchy by allegedly using his personal lawyer and member of All Progressives Congress (APC), who is the Attorney- General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), to influence the decision of the INEC on the inconclusive Kogi State governorship poll.
He accused the President of “fraudulently using the AGF to carry out an act which amounted to amending the 1999 Constitution and the Electoral Act 2010 to advance his ambition and that of his party to turn Nigeria to a one party state.”
In a statement issued by his Special Assistant on Public Communications and New Media, Lere Olayinka, the governor, who vowed to use all legal means to fight the “kangaroo” decision, noted that “only the Supreme Court can resolve issues not envisaged by the Constitution, like the one that happened concerning the Kogi State governorship election.”
Governor Fayose noted that it was shameful that the first election held by the new INEC Chairman, Prof Mahmood Yakubu, ended in controversy. He said the manipulation of the exercise and the commission’s illegal position on the substitution of APC candidate was a vindication of his earlier position that he was appointed to do the biddings of the Presidency and APC.
The governor, who said the fact that Prince Abubakar Audu died in the early hours of last Sunday and his death was kept secret until later that day pointed to the sinister plot.
“Having manipulated the election substantially, what they plotted by covering up Audu’s death for hours against Islamic injunction, was to declare a dead candidate as elected governor of Kogi State to pave the way for the emergence of his running mate as the governor-elect.”
Meanwhile, the African Democratic Congress(ADC), one of the political parties which participated in last Saturday’s election, has faulted INEC’s decision on the rerun.
National Chairman, Chief Okey Nwosu, while reacting to INEC’s insistence on going ahead with the supplementary election, occasioned by Audu’s death, accused the electoral body of impunity. He said his party would challenge the action in court.
However, the death of Abubakar Audu, before the declaration of complete election result by INEC has thrown up issues that may require judicial interpretation of the courts on the legal status of a gubernatorial election in which a candidate dies before the declaration of results by the electoral commission.
While some lawyers, including Prof Itse Sagay and Mr. Olisa Agbakoba, both Senior Advocates of Nigeria (SAN), said the death of a candidate before the declaration of results or emergence of a winner renders the election inconclusive and mandates the conduct of a fresh election, others held the opinion that the election would have to be concluded and the party that wins, even when the candidate is dead, would have to be declared the winner.
Of paramount consideration for the INEC will be the glaring fact that this is the first time a candidate will die midstream into an election, after it has started and before it was concluded with the declaration of a winner and losers.
This dilemma was not envisaged by the framers of the constitution or the Electoral Act, 2010 (as amended). All the constitution provides for is a situation in which a declared winner dies or is unable to be sworn into office after the election while the Electoral Act provides for a situation where the candidate dies after his/her nomination, but before the election.
Specifically, Section 181(1) of the constitution states: “If a person duly elected as governor dies before taking and subscribing to the oath of allegiance and oath of office, or is unable for any reason whatsoever 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.”
Section 36(1) of the Electoral Act states: “If after the time for 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 of 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 within 14 days.”
Also, Section 33 states that “a political party shall not be allowed to change or substitute its 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 the Kogi election, however, INEC is confronted with a situation whereby voting has taken place, results have been released, but the poll was declared inconclusive owing to the number of cancelled votes in select polling units and wards in 19 local government areas of the state exceeding the margin of difference between the two leading candidates, thus necessitating supplementary elections in the affected polling units or wards.
In addition, the amended Electoral Act requires the name and the party of the candidate to be published on the ballot paper, effectively ensuring that the candidate supersedes the party on which he/she is contesting, an amendment made by the National Assembly in 2010 in response to the Supreme Court ruling in Chibuike Amaechi Vs. Celestine Omehia and the Peoples
Democratic Party (PDP) in 2007, in which the court recognised the victory of the party in the Rivers State poll that year and declared Amaechi victorious despite his absence on the ballot.
Since INEC is required to publish the names of candidates on its ballot paper, if, in the event of his/her death during the election and he/she is replaced by a running mate, can it really be said that the new candidate can take over the votes cast for the dead candidate? Can INEC really say that was the intention of the Kogi electorate?
It is apparent that INEC would have to decide on the Kogi electorate, which clearly did not vote for anybody else other than Audu. In arriving at a decision, a fresh election seems like the most obvious scenario that would satisfy the yearnings of the voters of Kogi.
In his remarks on the legal lacuna, Prof. Sagay said: “Obviously, the election has become inconclusive. If the person who scores the highest votes dies before being declared the winner of the election, in that type of situation, there has to be a fresh election, giving the party affected an opportunity to provide a substitute.
Agbakoba was similarly inclined, stating: “The fact that the candidate is dead, invalidates the ticket,” arguing that “you need to have a person and a party to complete the ticket”.
He said the situation would have been different if the candidate had been declared the winner of the election before his demise. “The deputy would have been elevated to the position of the governor,” Agbakoba said.
When reminded of the Supreme Court ruling in the All Nigeria Peoples Party Vs Alhaji Atiku Abubakar, a 1999 case interpreted and given effect to this section of the Constitution when it held that Mr. Bonnie Haruna, who was the running mate of Alhaji Atiku Abubakar who was elected governor, but was also elected vice-president before he was sworn in as governor of Adamawa State, was eligible to be elevated to position of governor without recourse to a fresh election, Agbakoba said the Atiku case would not apply to the Kogi case because there was no declaration of results.
“The deputy governor would have been elevated to the position of the governor if results had been declared. They didn’t get to that point; they were on their way to it,” he said.
Certainly, many questions are begging for answers in the Kogi State Governorship elections and INEC had better watch it.