Did INEC err on its decision on Kogi gubernatorial election?

Since the Sunday, November 22, 2015 unfortunate death of the former governor Abubakar Audu, the All Progressives Congress candidate in the November 21 governorship election in Kogi State, a lot of public commentators have offered legal opinions on what should follow given that the Independent National Electoral Commission had declared the poll inconclusive before the death of one of the 22 candidates in the race to Lugard House in Lokoja.  As the saying goes, the only similarity common to every human being is our differences. Expectedly, diverse opinions are being canvassed by both lawyers and non-lawyers alike. Even when INEC and APC took their respective decisions and communicated same to the public on the evening of Tuesday, November 24, 2015 that have further inflamed more passion rather than dousing the tension.

In all honesty, both the Nigerian Constitution and Electoral Act never had clear cut provision on how to deal with the death of a candidate in an inconclusive election. There are legal provisions or remedies dealing with death before and after the poll, not mid-way into it. However, law is not expected to envisage all circumstances thus there are provisions for legislative amendments and court pronouncements. Both will be needed to eventually and finally lay to rest the conundrum that arose out of the peculiar, novel and unprecedented situation that Kogi’s electoral debacle has thrown up.

Among the differing positions that many commentators have posited are as follows: Some said it necessitated fresh governorship election. Others opined that APC should just be allowed to nominate a replacement for Audu while the supplementary election should be held to conclude the exercise. In selecting a substitute for Audu, some legal opinions believed that since Audu and his running mate Hon. James Abiodun Faleke are on joint ticket, the running mate should become the new candidate while the party goes ahead to nominate a new running mate for him. Others believe the first runner up in the APC governorship primary for Kogi,. Yahaya Bello should be picked as the new candidate. There are those who believe a fresh party primary needs to be held. Some others opined  that since the APC candidate had died while the election was inchoate, his votes had died and has been buried with him or better still, his votes  has become wasted votes. Some even went further to suggest that incumbent Governor, Captain Idris Wada who is the Peoples Democratic Party candidate in the election should be declared outright winner having satisfied the basic requirements as stipulated in Section 179 (2) of the 1999 Constitution, as amended.

As it turned out, INEC on Tuesday, November 24, 2015 issued a statement on the issue after due consultation with its team of legal advisers. In a release by its Secretary, Mrs. Augusta Ogakwu, INEC stated that “The commission has, after due consideration of the circumstances, decided as follows: To conclude the process by conducting election in the 91 affected polling units where election was cancelled or could not hold as announced by the Returning Officer. To allow the APC to fill the vacancy created by the death of its candidate and to conduct the supplementary election on December 5, 2015. Same day, APC chairman, Chief John Odigie-Oyegun also informed the public of the decision of his party to conduct fresh party primary to produce a replacement for Prince Abubakar Audu.

It will also seem that APC will like to interrogate the decision of the INEC to declare the gubernatorial election inconclusive more so as its candidate was leading its closest rival by 41, 353 votes. According to APC chairman, “INEC has made a pronouncement that the election was inconclusive. But as of this moment, we are still to get anything in writing from INEC, specifying the details of the polling units that were involved and a clear definition as to whether it is referring to registered voters or voters with PVCs...” I heard it on good authority that though the number of registered voters in the 91 Polling Units where election could not take place is 49,953; however, the number of those who have collected their permanent voters cards and therefore eligible to vote in the supplementary election is about 25,000.

Of this number too, given that the November 21 election had an average voter turnout of 36 per cent, there is a possibility of far less percentage of that likely coming out to vote in the make-up election. This is corroborated by the fact that of the approximately 25,000 who have collected their PVC,  some of them would have relocated out of Kogi State, died, be on election duty, be sick or simply be disinterested in  coming out to vote. The question is, if INEC is in the know that only about 25,000 potential voters will be eligible to exercise their franchise in a supplementary election and that the figure is far less than the over 41,000 votes with which Audu was leading his closest rival, Wada, why did INEC not save this country of this heated argument and debate by declaring APC the winner of November 21, 2015 poll?

I am of the opinion that INEC acted within the ambience of the law by choosing to rely on provision of sections 33 and 36 of the Electoral Act which allows for substitution of dead candidate. It is natural for Peoples Democratic Party to kick and reject INEC’s decision because the party stands to be the sole beneficiary of the disqualification of APC from contesting the supplementary election. After all, its candidate will simply coast home to victory without APC in the race. It is within the right of PDP and any of the other 20 candidates in the race to head to court before the date of the supplementary election or wait to approach the election petition tribunal to seek redress. Either way, judicial intervention is inevitable. Personally, I am of the opinion that all the parties in dispute over INEC decision should allow the supplementary election to hold and thereafter proceed to the tribunal. It is noteworthy that aggrieved parties have right of appeal of tribunal decision up to Supreme Court.

In my candid opinion, those who are calling for fresh  statewide gubernatorial election  need to factor in the provision of section 178 (2) of the Nigerian 1999 Constitution (as amended) which says election to the office of the governor should be held not earlier than 150 days and not later than 30 days. Captain Wada was sworn in as Kogi Governor about January 31, 2012 and as things stand INEC may not have the wherewithal to conduct fresh election throughout Kogi State within the next one month left for it to do so. For those pushing the joint ticket argument for late Audu’s running mate to automatically be made to substitute his dead principal, they need to realise that  Audu alone ran in the party primary while his running mate was nominated by him or his party after he emerged victorious at the intra-party election. Meanwhile for a person to be a candidate of the party under our extant law, particularly section 87 and 141 of the Electoral Act 2010, as amended, he must have participated in all the stages of the nomination processes. That is he must have undergone party primary and be sponsored by his party. Faleke unfortunately did not undergo primary with Abubakar Audu.  Now that his party has chosen to conduct another primary to elect a replacement for the deceased candidate, Hon. Faleke has a golden opportunity to go and test his popularity.

There are those who are canvassing that Audu’s votes in November 21 are not transferable. I beg to disagree. There are instances where courts including the Supreme Court have stated that people vote for the political party and not necessarily the candidate. Nigerian law has no provision for independent candidacy. Those who are asking INEC to cancel the November 21 election result also need to bear in mind section 68 of Electoral Act 2010, as amended where decisions made by Returning Officer on an election that have been held and results collated can only be reviewed and reversed by the election tribunal or court. I do hope that the 8^th  National Assembly having seeing the imperative of constitutional and electoral act amendment arising from the unprecedented Kogi’s electoral debacle swing to action and expeditiously amend Nigeria’s election legal framework.

Jide ids the Executive Director of OJA Development Consult, Abuja 

N.B: This article was first published in Thisday of December 1, 2015