It is a great loss to lose a veteran in the Nigerian political environment and of greater loss that such individual is at the verge of winning an election which he was contesting for before he died. His death did not escape a lot of controversies as a lot of people are of the opinions that the election has to be re run while some are of the opinion that the election needs not to be cancelled but the party that won should be declared and a substitution will be done to the candidate, making the deputy governor the governor of the state. Other opinions were also aired but these two were the opinions that actually captured my attention.

Legal backing were thus, placed by the propellers of these opinions with their own interpretation of law. Sections of the Electoral Act, which is the Act that needs to be followed at this particular period of time, were cited and these include: Sections 33, 36 and section 181 of the Nigerian Constitution being the grundnorm of all laws in the country is applicable when a case is provided for by it.

Section 33 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 case of death or withdrawal by the candidate.

Section 36 states:
(1) 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 the 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.

(2)The list of voters to be used at a postponed election shall be the official voters register, which was to be used if the election had not been postponed.

Section 181 states:
(1) If a person duly elected as a 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 with the approval of a simple majority of the House of Assembly of the State.

(2) Where the persons duly elected as Governor and Deputy Governor of a state die or are for any reason unable to assume office before inauguration of the house of assembly, the Independent National Electoral Commission shall immediately conduct an election for a governor and Deputy Governor of the state.

Abubakar Audu’s case:

(1) Abubakar Audu is a nominated candidate of the Action Progressive Congress, Kogi state Chapter, for the Kogi State gubernatorial election.
(2) Poll (Election) was commenced and concluded.
(3) Audu led Wada with 41,353 votes and which was less than the void votes which was 49, 953 votes.
(4) The election was then declared inconclusive due to the lesser number of the margin between the two candidates to the void votes.
(5) In the evening, Audu was found dead.


Applicability of Sections 33 and 36 of the Evidence Act and section 181 of the constitution

Section 33 cannot be interpreted independently as it is only pointing to the way an individual can be substituted in the sections that provide for the substitution of a candidate. By so doing, section 33 is not applicable here.

Section 36 is not applicable here as the candidate died after the commencement of the poll. The section only provides for the death of a candidate before the commencement of the poll and not after the commencement of the poll as envisaged in Audu’s case. Therefore, the proponent of the application of section 36 should please keep mute on this.

Section 181 of the 1999 CFRN is also an important section that is being quoted by those arguing. Section 181 only provides for a person that is duly elected as a governor. The word “duly” should be taken note because it is not a language cosmetic but a word that is put there to specify the situation this provisions will be applicable. To be “duly elected” means “an individual has been declared the winner of a particular election. Audu has not been declared winner of this election, therefore he is not duly elected and this section is not applicable to him.

Experts’ views over this

Different Senior Advocates of Nigeria and lawyers had talked about this, they are however at loggerhead with one another based on this rare situation.
Some lawyers argued that since election had been concluded in some parts, then Audu’s running mate should step in. According to Prof Yemi Akinsye-George, the running mate should step in if we are to go by the decision of the court in Ag of the federation & ors v Alhaji Atiku, when he was picked as Olusegun Obasanjo’s running mate, after winning the Adamawa State Governorship election. He further added that “since the election has almost been concluded, the deputy steps into his shoes as the candidate. It is a further interpretation of Atiku’s case. (Moreover), the election has almost concluded, it can no longer be nullified. It is for a situation like this that the constitution provides a running mate in an election.” By way of comment, can we say Atiku’s case is on four with this case? Atiku was alive at the period the situation happened but this man is dead. Moreover, the election has not been concluded as against the concluded election in Atiku’s case.

With a similar reasoning with Prof Yemi, Mr. Jiti Ogunye, a Lagos based lawyer argued that though, Atiku was alive when this case went on in court as against the situation right now but the Supreme court came up with a manner of speaking that Atiku was dead or less, because the law they were interpreting then was that in case of death; the deputy governor, though not sworn in, shall step into his shoes. According to him, “The supreme Court said because he was no longer available, he could be regarded as being dead; so the deputy shall step in.” I will rather say that the learned professor failed to take into cognizance that the Atiku’s case is not in any way on four with Audu’s case. The election was not concluded nor won by Audu as against the material fact in Atiku’s case. Moreover, Audu is not called by any President to become the vice president of the country as was the case in Atiku’s case.

According to Mr. Tayo Oyetibo SAN, “…this is different from Atiku Abubabakar’s case. INEC needs a serious legal opinion in order to avert a constitutional crisis in that state.” In the same vein, a former president of Nigerian Bar Association, Mr. Olisa Agbakoba (SAN), said that the law is not clear on the situation “but it is commonsensical. If a candidate is dead, it means there is no election.” Though, the Senior Advocate has a point, he is somehow harsh in his decision. The election is not yet concluded, the Runner up party might have upper hand in the supplementary election defeating the leading party.

Another Lagos state based lawyer, Mr. Wahub Shittu said that the situation in Kogi State Scenario was novel and was not envisaged by the constitution. He however proposed three ways in looking at the scenario in order to determine the outcome of what would happen. These include:

(1) “The first perspective is to say that the candidate and the party jointly own the ticket and now that the candidate is no more, one perspective would be to say that a new election will be organized.
(2) The second perspective is to say that in view of the evidence Act (section 33 & 36), allowing substitution before election on the grounds of death of a candidate; if by extension, we input that in provision, relating to the death before (after) election then we can say the party can substitute to allow the process to be completed, meaning Faleke can step into the shoes of Audu.
(3) The third perspective is to say that the APC is the party and whatever happens, the APC should be declared winner and the candidate of the APC, being the deputy governor, and the ticket being a joint ticket, now that the governor is no more, the deputy governor can step into his shoes for the purpose of completing election.”

Mr. Wahub Shittu’s perspectives are futuristic as there are still no legal backings for his perspectives. Maybe in future, there might be one but for now, realistically speaking, they are unattainable as the state cannot act unconstitutionally unless the Court adopts the perspective and stamp with judicial authority.

CONCLUSION

It is crystal clear that the law of the land is silent on the situation in Kogi State presently. INEC should seek “a serious legal opinion to avert constitution crisis, which Audu’s death was capable of bringing up”, as submitted by Mr. Tayo Oyetibo (SAN). Audu’s case is a rare complicated legal issue and the nationals should keep calm till the higher authority in the realm of the interpretation of law speaks.

Moreover, the National Assembly should deem it fit to revise the electoral Act by incorporating this as a provision in order to arrest a similar case in future but for now, the lawyers are still not sure about what the decisions will be. Speculations are only being made, we are still on the lookout for what the outcome maybe. For now, the outcome is still unknown.


References:
Electoral Act of Nigeria
1999 constitution of the Federal Republic of Nigeria
www.nairaland.com/2755206/what-electoral-acts-says-death
www.nairaland.com/2755027/section-181-nigeria-constitution-death
http://punchng.com/audus-death-inec-in-dilemma-lawyers-differ/
cc lalasticlala, Ishilove