I was deeply saddened by the news of the passing of the candidate of APC in the Kogi State gubernatorial polls, Prince Abubakar Audu. My heart felt condolences to his entire family and the people of Kogi State. His passing is not only shocking and sad, it has also created a legal problem for INEC as regards the inconclusive elections as at the time of his demise.

A lot has been said by different experts, and different positions canvassed by different lawyers on this issue. However, suffice it to say that only INEC is statutorily empowered to chart a course on how to move forward in the elections, to which a supplementary election has been ordered. Although, INEC should expect to have its decision on this issue tested through the fires of litigation.

While some had argued for fresh elections to be held, some argued that Prince Audu’s running mate (Hon. James Faleke) can simply take his place and run the supplementary elections after all, it’s an Audu/Faleke ticket. It’s important to note that none of these arguments is premised on a statutory provision, none of these arguments have legal backing.

What does the law say when this kind of situation happens? Nothing! Unfortunately, our laws do not envisage that this issue will ever arise, Hence, the law is silent on it. What happens then when the law is silent on an issue? The courts will infer reasonability on the issue. So what is reasonable in this instance?

It’s important to note that section 181 CFRN is not applicable in this instance, likewise section 36 of the Electoral Act, 2010. The Atiku Abubakar case is also not on all fours with the instant situation. Section 181 CFRN talks about a person who has been duly elected into the office of a Governor. If such a person dies, his deputy-elect takes his place as the Governor-elect.

Section 36 of the Electoral Act, 2010 talks about the death a candidate before the polls. In such situations, INEC would revoke the election and fix a new date within 14 days. In the Atiku Abubakar case, Alhaji Atiku had already been elected as the Governor of Adamawa State before Chief Obasanjo picked him as his running mate in the presidential polls. The Supreme court held that his “deputy-elect” can take over. That’s a very clear case where Section 181 CFRN applies.

Back to the instant scenario. I beg to differ from the perspectives of some legal giants who had argued that a fresh elections be called by INEC in the light of the present circumstances. To call a fresh election, INEC must have invalidated the present election. And you simply cannot invalidate an on-going election because one of the contestants died. What happens if any of the other candidates die before the conclusion of the fresh elections? INEC simply cancels again and orders for another fresh election?

The second perspective is that INEC continues the supplementary election with Hon. Faleke stepping in as the APC Gubernatorial candidate in order to conclude the on-going election. This position seems very compassionate, but it’s far from reasonable. INEC cannot take a stand that will run foul of, or undermine the law, especially the CFRN and the Electoral Act, 2010.

Section 31(1) & (2) of the Electoral Act, 2010 provides that a political party submits to INEC, within a stipulated period, a list of the candidates the party proposes to sponsor at the elections accompanied by a sworn Affidavit by the candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.

Section 87 (1) – (4) of the Electoral Act, 2010 provides that a political party seeking to nominate candidates for elections under the Act shall hold primaries for aspirants to all elective positions. The section goes on to state in details how primaries are to be conducted.

Section 141 of the Electoral Act, 2010 provides that an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.

In the light of the above quoted statutory provisions, it is clear that Hon. Faleke cannot validly represent the APC in the supplementary Gubernatorial polls because of these impediments.

Sadly enough, but true. He did not swear to an Affidavit in court indicating that he has fulfilled all the constitutional requirements for election into the office of the Governor and he certainly didn’t contest in a primary election held by APC. Thus, he cannot be said to have fully participated in all the stages of the election.

Therefore he cannot be declared the winner of the election by virtue of the provision of Section 141 of the Electoral Act, 2010. There are so many other legal provisions, I just don’t want to bore my average reader with legal jargons.

Let’s us imagine for a minute that this is a 100 meters race between 8 athletes representing 8 different countries – Nigeria, Kenya, Gambia, Ivory Coast, Benin, Liberia, Mali, and Senegal.

And the athlete from Kenya, who was leading the race suddenly drops dead before he could complete the race, say approximately 10 meters to the final line, what happens next? Do we cancel the race and start all over again?

Or perhaps, pause the race and inform the Kenyan officials to send in another athlete to complete the remaining 10 meters of the 100 meters race? Certainly not. The most reasonable and logical conclusion is to declare the next athlete, who is second to the Kenyan, the winner of the race, at the conclusion of the race.

The reason for the above analogy is just to make the situation even clearer to a lay man. To call for fresh elections would mean to say cancel the race and start all over again because one of the athletes dropped dead during the race. To say Hon. Faleke can continue with the supplementary elections would mean to say pause the race and inform the Kenyan officials to send in another athlete to complete the remaining 10 meters of the 100 meters race.

In my own opinion, the APC ticket in the Kogi gubernatorial polls is no more valid as a result of the death of its candidate before the conclusion of the polls. A valid ticket should have a candidate and his running mate.

See section 187 CFRN. The most reasonable solution is to declare the next candidate with the highest number of votes cast as the winner of the election.

It’s quite unfortunate, because it will seem that the PDP is benefitting from the misfortunes of APC, but this is the most logical solution to this legal problem. At least before the Electoral Act is amended to provide for situations like these in the future.

———————-

Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija

Opinion article written by Hussein Afolabi, ESQ