Legal experts yesterday said going by the events in the November 21 governorship election in Kogi State, Mr. James Faleke, who was the running mate of the late candidate of the All Progressives Congress (APC), Prince Abubakar Audu, cannot lay claim to the existing victory.
The lawyers also argued that the Independent National Electoral Commission (INEC) had no legal backing to declare him governor-elect. Audu had died on November 22 after the electoral umpire had declared the outcome of the election as inconclusive. Though several legal opinions have been in the public domain, the most recent of them all was the one by Faleke wherein he spoke through his counsel, Chief Wole Olanipekun (SAN), that the INEC should declared him as the winner.
Faleke had faulted INEC for declaring the election inconclusive and he is challenging the decision of the commission in court. According to his position, he should be declared the winner of the election given the fact that he was on the same ticket with the late Audu as the deputy governorship candidate.
Speaking to some selected journalists shortly after The Patriots meeting in Lagos yesterday, Nwabueze said the INEC should conduct fresh election rather than embarking on the proposed December 5 supplementary election because that whatever votes Audu got during the governorship election died with him.
He said: “We have an election and the man who was leading died during the election. As far as I am concern and from my knowledge, whatever votes he scored in the election died with him. You cannot have votes to survive a dead man. Now that he is dead, there should be fresh election in Kogi. As far as I am concern, INEC should organise a fresh election.
If they try anything else, they will be putting us in trouble. “Anybody who is saying that votes cast for a dead man survive his death doesn’t make sense to me. When he (Audu) died, the votes cast for him died with him and there should be a fresh election. He is not alive to exercise the mandate. Votes mean mandate and nobody else can come and say he has been given mandate by the votes cast for a dead man. The mandate given was for a dead man, not for anybody else.
So, that mandate died with the death of the man for whom the votes were cast for.” Nwabueze also faulted Faleke’s request for INEC to declare him as the governorelect, saying he had no right to lay claim to Audu’s mandate.He said the people of the state cast their votes for the APC governorship candidate and not the running mate during the election.
“The position of a running mate under Nigeria Constitution is a spare tyre. The votes were cast for gubernatorial candidate. The running mate was chosen to support him. So, the votes were primarily for the governorship candidate and not the spare tyre. “He cannot claim that because he is a running mate, he has rights to some functions.
The votes give no mandate at all to the running mate. He is a spare tyre and he can only assume office when the governor dies,” he said. Speaking on the development, a legal practitioner, Mr. Godwin Obla (SAN), expressed misgivings over the development. “Part of the anxiety is that if a candidate who emerged from the APC primary died, can another candidate who did not participate in the APC primary take his position, having regards to the decision in Taraba State governorship petition? That is my fear.
“The provision of the law says within 14 days that INEC must fix a date for another elections, can the APC conduct another primary within 14 days, considering the requirement of 21 days notice to the INEC to enable them to meet the requirement of Section 85?. “Also noting that there were 22 candidates in the election, is it also compulsory, having regard to the unfortunate development, that has led to the death of the APC candidate, can the APC still participate in any other election or will the INEC proceed with that election and regard the APC votes as wasted votes?
“We need to look at Section 85 and 87 of the Electoral Act as we think about the candidate. Even if we have to substitute the deputy governorship candidate to become the governorship candidate, we will have problem meeting with the requirement of Section 85 and 87 and whoever that will be his deputy will also have that problem because both of them did not emerge from the party primary. “Some people may argue that the doctrine of necessity should come, that may not come in here because the law is clear. The law is clear that you must emerge from a party primary before you can become a candidate.
Those are my fears,” Obla said. On his part, Dr. Awa Kalu (SAN), said the INEC could not blow hot and cold at the same time. He said: “INEC has fixed a date for a complimentary election and all the parties that are asking for one thing or the other should go to polls and conclude it.
“I find it difficult to believe that INEC having fixed a date of supplementary election will turn around and declare somebody winner. It is hard for me to believe. It is either they go for supplementary polls or they head for court. Those are the only thing that can happen right now,” he added. Also reacting, the President of Public Interest League, Abdul Mahmud, said: “We are in a strange legal and constitutional territory, adding that the 1999 Constitution and the Electoral Act 2011 do not envisage the unfortunate circumstances such as the death of Audu in the middle of a poll foists.”
Speaking further, he said: “Recall that INEC declared the poll inconclusive, which makes the provisions of Section 181(1) of the 1999 Constitution, inapplicable in the circumstances. Whatever positivist interpretation ( an approach the Supreme Court has adopted in a plethora of authorities) commentariat gives to Section 181(1), the phrase, “if a person is duly elected as governor”, couldn’t have availed late Prince Audu were he alive because he didn’t meet the conditions set out in Section 179 (2) of the 1999 Constitution.
“Or that Audu and Governor Wada did not meet the conditions set out in Section 179(2) (b) of the constitution as aforesaid. And it was for this reason that the INEC declared the Saturday poll inconclusive and ordered supplementary poll for 91 polling units.
“Our view, here, however, is that any positivist interpretation that seeks to clothe the APC with what Section181(1) does not avail it is to inflict violence on the constitution. Since we are in a strange legal and constitutional territory, no inference can be drawn from Boni Haruna’s case to fit the present circumstances because the facts are not similar.
“As we have consistently argued since 2011, there is no provision in our extant electoral laws that empowers the INEC to order or conduct supplementary polls. The order made by the INEC for supplementary poll to conclude the Kogi governorship poll is unknown to the Electoral Act.
“The Electoral Act is very clear in Section 70: fresh election can only be ordered where there is equality of votes cast for two candidates with the highest or the majority of votes. “We expect that while the court invariably resolves this seeming legal conundrum the death of Prince Audu foists, pronouncements can be made on the legality or illegality of supplementary polls. As it stands, what should serve as the ice breaker of this seemingly intractable legal and constitutional logjam is the interpretation the court places on Section 36(1) and Section 33 of the Electoral Act, 2011.
“Our sense, here, is that in resolving the conundrum and breaking the logjam, our court cannot go beyond the purview of Section 36(1) of the Electoral Act, which deals with the death of a candidate and Section 33 of the Electoral Act which sets out the right of a political party to substitute its candidate who has withdrawn his candidacy or has died.
“Our view is that since Section 36(1) does not define the character of the poll or places a nomenclature on the poll, the liberal interpretation is that it envisages the poll expected to be conducted in the 91 polling units as announced by the INEC in the immediate aftermath of the Saturday poll.
“Therefore, it can plausibly be held that Audu died before the expected poll and the INEC is thus empowered by the Act to countermand the poll and fix a date for the poll within 14 days. If this position is correct, and we think it is, APC is thus empowered by Section 33 to substitute its dead candidate. It is needless to conduct fresh party primary in the circumstances,” he stated. Also reacting, a lawyer and the national secretary of the Labour Party, Mr. Kayode Ajulo, said the original problem leading to all these confusion was caused by the Attorney General of the Federation (AGF). “The position of the AGF is a corrupt opinion.
The general interest of Nigerian should have been in his mind, but unfortunately he took the party interest. “Whether we like it or not, it is the common law that is governing election in Nigeria, except we want to change it today. By the death of Audu, he becomes disqualified even alongside his running mate. This invariably means that it is illegal for the INEC to declare Faleke as the governorelect of the state.
We cannot continue to build illegality on illegality. I think at this point, things must be put right,” he added. In the same vein, the national leadership of the APC yesterday said until it finishes its consultations, the party would not be able to take decision on the political imbroglio in the state.
The party’s acting National Publicity Secretary, Mr. Timi Frank, who spoke to Saturday Telegraph on the telephone, said this in reaction to different claims by party members in the state on Audu’s successor as a result of his death on November 22 amid the result of the governorship election held on November 21.
But the APC has however distanced itself from his position stating that after its consultations, it would announce the replacement for Audu. Frank said: “Well, for now, the party has not taken any decision on any of these issues regarding the state because we are still under consultation. Until that consultation is over the party cannot address any other issue on Audu’s successor.”
On the party’s alleged plan to adopt Audu’s son, Mohammed, as its candidate for the supplementary election, Frank said: “The party is still consulting to know what action it would take on some of these issues in the state and to announce who would replace the candidate of the party in the state. The party is still going on with consultation after that the party will take position.”
On when the party would come out with its position on Audu’s successor, given the fact that the INEC has scheduled the state governorship supplementary election for December 5 and gave APC December 1 to submit Audu’s successor, he said: “The consultation will be over in a matter of short time and Nigerians will get a result on this.”
