Kogi Polls: The Legal And Constitutional Issues Arising From Abubakar Audu’s Death

Posted by African Examiner Articles/Opinion, Featured, Latest Headlines Monday, November 23rd, 2015

The death of Prince Abubakar Audu after the election has commenced, results collated and announced save that there was no return due to the fact that the total number of registered voters in polling units where election was cancelled is more than Audu’s margin of win. Audu had polled 240,867 votes, while Wada polled 199,514. The difference between the scores of the candidates is 41,353 votes. However, the total number of registered voters in polling units were election was cancelled is 49,953.

Assuming, Wada is given all the cancelled votes he would poll 249, 467 votes which will make his score higher than Audu’s with 8600 votes. This also means that assuming all the registered voters in the polling units where election was cancelled are to vote, Audu would have just needed 8600 votes out of 49,953 votes to win the election leaving Wada with the remaining 41,353 votes. However, there is no way all the registered voters would turn out to vote. It is an impossiblity. So head or tail, Audu would have won. But now a twist has been added. Audu is dead.

This would raise some legal and constitutional issues. The relevant legal questions are: (1) Would INEC countermand the poll and require APC to field new governorship candidate? (2) Would the votes already earned vested in the Party or the Deputy? (3) If the votes are vested in the party what options are open to the party? (4) If the votes are vested in the Deputy what next? (5) Do the votes already earned go to nothing? The scenario that has just played out has no express provision governing it either in the Electoral Act or in the Constitution, although some judicial decisions provide a guide to resolving the Constitutional logjam. There are two scenarios which the law took care of.

The first is where the Governor-Elect dies before subscribing the oath of allegiance and the Oath of Office or where both the Governor or Deputy Governor duly elected die or for any reason unable to assume office before the inauguration of the House of Assembly. The second is where a candidate dies before the commencement of poll.

In the first case, the Deputy Governor-elect shall be sworn in and he shall in turn nominate another person to be his Deputy. See section 181(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), but where both dies INEC shall conduct a fresh election to elect a Governor and Deputy Governor. See subsection 2 of section 181 supra. In the second case, the Resident Electoral Commissioner shall countermand the poll and appoint some convenient date for the election within 14 days. See section 36(1) of the Electoral Act 2010.

In the present case, Audu had neither been declared as the Governor-Elect and neither did he die before the commencement of the poll. Here, he died after the commencement of the poll. There is no provision in the law of what happens when a candidate dies after commencement of the poll. I raised five questions earlier. I shall not discuss the questions in no particular order. Infact I shall subsume the questions in one straightforward discussion. I shall attempt a solution or at best a proposition. I shall be guided by some judicial authorities. I will readily opine that since the poll has commenced and infact election concluded, results counted, collated and announced save a declaration and return which was impossible due to inconclusivessness resulting in a supplementary election that the votes already earned vests in the Party (the APC) as well as in Audu’s Deputy (albeit conjuctively as the Deputy cannot validly claim to be automatically entitled to take the place of Audu at this stage).

In Amaechi v. INEC, the Supreme Court held that the victory of a candiadte in an election belongs to the Party. Following from this, I opine that the supplementary election can proceed notwithstanding the death of Audu. APC is at liberty to nominate another candidate to take the place of Audu or make Audu’s Deputy the substantive candidate and appoint another as a Deputy. It will be absurd if the votes already earned go to nothing.

By John Nwobodo