Kogi Guber Election Rerun: Is INEC Making A Mistake?

As the debate of the Saturday 21, 2015 Kogi guber election rages on, following the sudden demise of the APC candidate, Prince Abubakar Audu and the consequent declaration of the election by the INEC as inconclusive, there has been gales of legal opinions regarding the situation. This is against the backdrop of the Independent National Electoral Commission’s decision to allow the All Progressives Congress (APC) to fill the vacuum created by the death of its candidate, Prince Abubakar Audu in the Kogi State Governorship election, in order to continue with the supplementary election on December 5, 2015.

It will be recalled that 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 the Saturday Governorship election inconclusive, in spite of the fact that Abubakar Audu was leading with over 41,000 votes, insisting that there will be a rerun in 91 polling units to take care of 49,553 voters.

He said that the provision of the law as contained in the INEC guidelines states 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 further noted that 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. According to him, while the All Progressives Congress (APC) pulled a total of 240,867, the People’s Democratic Party (PDP) scored 199,514; labour Party (LP) had 5,756 and the All Progressive Grand Alliance (APGA) 584 votes.

According to the Professor, the total valid votes stood at 459,983; rejected votes at 21,351, while the total votes cast were 481,334. It is worthy of note that Prince Audu of the APC won in 16 local government councils where he satisfied the required two-thirds of the votes cast; while the PDP flag bearer and incumbent governor, Captain Idris Ichala Wada won in five local government councils.

There are contesting and divergent legal views concerning the Kogi political logjam; each camp citing different sections of the 1999 constitution as amended to juxtapose, validate his claim and vitiate legal positions. There are those who believe that the All Progressives Congress (APC) should be allowed to substitute Prince Abubakar Audu, in order to carry on with the supplementary election scheduled for December 5th. There are also those who are averse to the decision and between the two extremes is the electoral umpire, INEC.

The Independent National Electoral Commission (INEC) is practically doing everything within its powers to extricate itself and steer Kogi State out of possible constitutional crisis, owing to the lacuna created by the death of Abubakar Audu, and the sheer determination by some unpatriotic elements in the State to take the laws into their hands. This explains why INEC has asked the All Progressives Congress (APC) to replace the deceased with a view to participating in the December 5th supplementary election.

Indeed, this decision has not gone down well with the opposition party, the Peoples Democratic party (PDP) as they are vehemently opposed to it, but desperately demanding that its candidate, Captain Idris Wada should be declared the winner even when it is crystal clear that he did not satisfy the two-thirds requirement; being that he won in only five local government councils. With such an unprecedented disparity in the election result between the All Progressive Congress Party (APC) and the Peoples Democratic Party (PDP), what is the implication if the electoral umpire heeds to such an ignoble request? The proverb that ‘he who fetches firewood with ants should expect the visit of the lizards will be apt.’ The political temperature of Kogi State is already high and may edge this situation into a full blown “stroke’’ with the attendant consequences of opportunistic infections – crisis. God forbids it!

On the other hand, the question that has continued to agitate the minds of many Nigerians is whether Audu’s votes are transferable. Whilst some have expressed optimism that indeed, the votes are transferable, citing Section 221 of the 1999 Constitution which states that ‘no association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election,’ in this connection, they have argued therefore, that these votes are transferable. According to them, the constitution emphasises the party and not the candidate. In other words, the mandate belongs to the party, not the individual. Others have also insisted that Prince Audu’s votes died with him as such the votes cannot be transferred to whoever replaces him.

In such a situation, the constitution provides that INEC shall immediately conduct an election for a Governor and Deputy Governor of the State. Section 181(2) of the Constitution provides that “Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the 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.”

The reason why the elected Governor and Deputy Governor are unable to assume office as such is because they have not taken the prescribed Oath of Allegiance and Oath of Office: See Section 185 (1) of the Constitution which provides that a person elected to the office of the Governor of a state shall not begin to perform the functions of that office until he has…subsequently taken and subscribed to the Oath of Allegiance and Oath of Office prescribed in the seventh schedule to this Constitution. The reason why the elected Governor can no longer subscribe and take the prescribed Oath of Allegiance and Oath of office is because the election was declared inconclusive, followed by his death. By implication, the situation is now a terminal nullity.

Section 179(4) states that in default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within seven days of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if (a) he has a majority of the votes cast at the election. Subsection (b) continues that he should not have 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.

There is no denying the fact that the current political quagmire in Kogi State is a novel one. This is because the constitution has hitherto talked about before and after elections, but remain silent as to what happens if a candidate dies in the course of an election. In these circumstances therefore, a court of competent jurisdiction needs to make a pronouncement on the issue to ensure that we do not progress in error. This is the only way to assuage the hues and cry that have greeted the Kogi political debacle.

Section 191(2) of the same part of the Constitution states that where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of the Deputy Governor of the state is also vacant, the Speaker of the House of Assembly of the State shall hold the office of Governor of the State for a period of not more than three months, during which there shall be an election of a new Governor of the state, who shall hold office for the unexpired term of office of the last holder of the office.

In my opinion, what should be done in the circumstances and perhaps, the safest option for the Independent National Electoral Commission (INEC) is to conduct a fresh governorship election in Kogi State. The reason is because any replacement of candidate without recourse to Section 34 of the Electoral Act which makes it incumbent on INEC to publish the names and addresses of all nominated candidates at its offices or on its website, at least 30 days before the election date is most likely to somersault the outcome of the December 5th supplementary election, owing to non-compliance to this provision.

By Sampson Ikemitang