It is no longer news that the death of Prince Abubakar Audu the APC. Flag bearer in the inconclusive Gubernatorial Election in Kogi State have placed the Constitution of Nigeria and other relevant laws at loggerheads as there seems to be no specific/fundamental provision In the Constitution and the Electoral Act that governs situations like this. Be that as it may, the Judiciary is now being looked upon to decipher the best approach and solution to the present Constitutional quagmire which have attracted diverse opinions from both Legal Luminaries and lay men.
My take on the situation in Kogi State is that there is or will be no need for a fresh Election reason being that the application of Section 33 of the Electoral Act, 2010 leaves no doubt in my mind that the situation will be fairly settled to the satisfaction of all concerned.
Section 33 of the EA, 2010 provides thus;
“A Political Party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of this Act, except in the case of death or withdrawal by the candidate;”
I know at this point that some legal minds would hold a dissenting view with respect to the provisions of Sections 34, 35 and 36 of the EA, 2010 but I will like to draw their attention to the fact that Sections 34, 35 and 36 of the EA, 2010 envisages eventualities or circumstances prior to the date slated for an Election and not eventualities or circumstances after the commencement of an Election but before the conclusion of same. Now, that brings us back to the provision of Section 33 of the EA, 2010 which does not state a time limit or any limitation whatsoever on a Political Party in terms of changing or substituting its candidate whose name has been submitted pursuant to Section 31 of the EA, 2010 upon the death or withdrawal of such candidate.
This in my mind if given the purposive interpretation for which it was enshrined (section 33 of the EA, 2010) in the EA, 2010 will resolve the present logjam of our laws satisfactorily, the effect of which will give APC the legal backing in substituting the name of the late Prince Abubakar Audu with that of another member of the party to be its flag bearer for the completion of the election in the remaining 19 polling units. It should also be noted that the provision of Section 33 of the EA, 2010 is not subject to the provision of Sections 34, 35 and 36 of the EA, 2010 or any other Section of the EA, 2010 and thus should be read distinctively from other Sections of the EA, 2010 and given its literal and purposive interpretation.
The provision of Section 181 (1) & (2) of the CFRN 1999 (as amended) cannot be brought into the situation in Kogi State at the moment or into any future occurrence as this whatsoever because the Section clearly envisages events that may occur after the due conclusion of an Election and the declaration of a winner which is obviously not the case at hand.