Kogi: Why INEC Got It Wrong On Saying APC Should Replace Late...

Kogi: Why INEC Got It Wrong On Saying APC Should Replace Late Audu [LEGAL OPINION]

By Orji Uka | The Trent Voices on November 25, 2015
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Following the death of the APC Governorship Candidate in the 2015 governorship elections in Kogi State on Sunday 22nd November 2015, the country was thrown into an unprecedented constitutional quagmire. Predictably lawyers and intelligent laymen alike came up with different views and permutations on what options were available to INEC in the circumstance.

RELATED: The Constitution And Abubakar Audu’s Death: 3 Options Available To INEC [LEGAL OPINION]

By a public notice issued today, 24th November 2015, and signed by the Secretary to the Commission, Mrs. Augusta Ogakwu, the Independent National Electoral Commission (INEC) after ostensibly seeking legal advice, essentially stated that after due consideration of the circumstances, it had decided to: conclude the process by conducting elections in the affected polling units, allow the All Progressives Congress (APC) to fill the vacancy created by the death of its candidate and conduct the supplementary election on 5th December 2015.

RELATED: INEC Says APC Can Choose New Candidate To ‘Inherit’ Late Audu’s Votes | STATEMENT

INEC took everyone (except its advisers of course) by surprise in taking a course completely different from the various predictions particularly regarding the decision to allow APC to fill the vacancy created by the death of its candidate. While some have hailed INEC’s move as the most sensible and pragmatic in the circumstance, in what follows below, I shall seek to x-ray the constitutionality and/or legality or otherwise of INEC’s decision against the backdrop of the only acceptable parameters, the extant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the Electoral Act 2010 (as amended).

RELATED: Attorney General Backs INEC’s Decision To Allow APC Replace Audu For Supplementary Elections

I have had cause to state in the past that there are certain fundamental principles that run through the jurisprudence of most constitutional democracies including Nigeria, for which there are hardly any departures. One of such principles is the principle of Supremacy of the Constitution and another, the doctrine of the Rule of Law. The Constitution/Laws serve as the scale to measure the validity of any action or decision such that where any action or decision is inconsistent with the Constitution or any other law, the courts will not hesitate to declare void such action or decision.

RELATED: PDP Rejects Call For APC Replacement Of Candidate, Calls For AGF Resignation

As I stated in my previous intervention on this issue, the extraordinary event of a Candidate (in clear lead) dying after the elections but before being declared as duly elected was totally not contemplated by the Constitution or the Electoral Act. That appears to be the only point of agreement for the various commentaries I have encountered.

Section 181 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:

181.- Death, etc. of Governor elect before oath of office: (1) If a person duly elected as Governor dies before taking and subscribing to 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 who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.

The above sub section which admits of no ambiguity provides that the person elected as Deputy Governor will be sworn in but only in the event that the person duly elected as the winner died before taking the Oath of Office. Emphasis on DULY ELECTED. Contrary to the views attempted to be propagated in some quarters, there is no doubt that the late Prince Abubakar Audu, the Candidate of the APC, was at the time of his death not duly elected as the winner of the elections. Any contention to the contrary would be doing violence to that Section. In any case, by deciding to conclude the elections, INEC has acknowledged that Section 181 was not the authority for their decision.

I had expressed the view before now that there are three options available to INEC in the circumstance, to wit: (i) conclude the elections at a latter date, declare Abubakar Audu as the winner and his Deputy Governor will be subsequently sworn in as Governor; (ii) cancel the entire election and conduct fresh elections in 90 days or as soon as practicable; and (iii) consider the votes cast for Abubakar Audu as frustrated by the event of his unfortunate death and declare the second person, likely Captain Idris Wada as the winner. For me these three options were mutually exclusive such that the adoption of one necessarily meant the rejection of the other two.

The approach adopted by INEC appears to be an amalgam of the first two options. This is where the confusion inherent in INEC’s decision begins to manifest.

This brings me to the next relevant provision to consider, Section 36 of the Electoral Act. The Section provides:

36.-( I) 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.

The section states clearly that where a Candidate dies, INEC shall countermand the poll and appoint some other date for the election. However the introductory phrase in the section is to the effect that this Section applies only where such a Candidate died before the commencement of the elections. Again this was not the situation in the election under review.

What INEC appeared to have done in the instant case is to in one breathe continue and conclude the elections (option i) and in another breathe allow APC to replace their dead candidate (option iii).

Although the Public Notice did not provide justification for the approach adopted, it appears to me that INEC invariably followed the Supreme Court’s decision in Amaechi vs INEC to the effect that the Kogi State electorate voted for the APC and not necessarily Prince Abubakar Audu. A decision that has been overtaken by events.

Assuming without conceding that the above decision was right, then INEC should have simply continued with the elections without the need for a new candidate. The moment INEC decided to allow APC replace their candidate however, (not for a fresh election but to conclude an election that was more than 95% complete) they opened a can of worms.

I read the statement credited to the Attorney General of the Federation who apparently is on the same page with INEC. In his words.

“The issue is very straightforward. Fundamentally, Section 33 of the Electoral Act is very clear‎ that in case of death. The right for substitution by a political party is sustained by the provisions of Section 33 of the Electoral Act.”

With the greatest respect, the issue is anything but straightforward. Without a doubt, Section 33 of the Electoral Act permits a party to substitute its candidate in the event of death or withdrawal etc of their nominated Candidate. But it is a well known rule of interpretation of statutes that provisions of a law cannot be read in isolation. For instance while Section 33 provides that a party can replace its candidate who withdraws, this right does not enure in perpetuity as Section 35 provides that the withdrawal must be not later than 45 days to the election date. Pushing the Attorney General’s position to its logical end, it means that if Prince Audu had not died but chose to withdraw midway into the elections, APC would have been entitled to replace him since “the right for substitution by a political party is sustained by the provisions of Section 33 of the Electoral Act.”

Similarly while Section 35 also entitles a party to replace its candidate in the event of death, it becomes necessary to consider whether there is no limitation to this right.

Section 31 of Electoral Act provides that parties must submit the list of candidates not later than 60 days before the date appointed for the election. A position upheld by the Supreme Court in a number of cases.

A response would have been that surely INEC can extend the time for nomination for the APC following the death of its candidate. But a limitation is found in Section 178 (3) of the Constitution which envisages only one situation where INEC can extend the time for nomination to wit: where after the period for nominations, there is only one candidate. As the Supreme Court held in Balarabe Musa vs INEC where the Constitution has provided for a situation, an Act of the National Assembly or an administrative action of an agency of Government cannot reduce or extend it.

The problem however is that even if INEC had extended the time, it would have certainly taken the elections into next year thus raising another constitutional question of the validity of the elections which ought to hold latest 27th December 2015, seeing that Captain Wada’s tenure ends 27th January 2016.

Another legal hurdle INEC has placed before the person subsequently nominated by the APC is found in Section 141 of the Electoral Act which provides:

141. 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.

The effect of the above Section is that the Supreme Court authority of Amaechi vs. INEC hitherto used as the magic wand by those propagating the view that the political parties and not the candidates who stood the election, are the subject of an election no longer represents the law. While interpreting the above Section of the Electoral Act, the Supreme Court in the case of CONGRESS FOR PROGRESSIVE CHANGE & ANOR V. HON. EMMANUEL DAVID OMBUGADU & ANOR(2013) LPELR-21007(SC) held that parties do not contest, win or lose election directly; but do so through the candidates they sponsored and before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting. In fact the Supreme Court per Ngwuta JSC, expressly held that the National Assembly has by section 141 of the Electoral Act, “set aside the decision of the court in AMAECHI v. INEC.”

Can whoever APC subsequently nominates claim to have fully participated in all stages of this election?

In the final analysis, it must be admitted that the extraordinary set of circumstances triggered by the death of Prince Audu has left everyone in a Catch-22 situation. No option is without blemish but in my humble opinion, INEC in seeking to save the day chose the option most difficult to defend.

Orji Uka is a legal practitioner with one of the top law firms in Nigeria. He was admitted as a Barrister & Solicitor of the Supreme Court of Nigeria in 2012. He is a member of The Trent Voices. An alumnus of Abia State University, Uturu (ABSU). Orji, who is a soccer aficionado currently resides in Lagos, Nigeria and tweets from @orjiuka.

The opinions expressed in this article are solely those of the author.

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