Professor Auwalu Yadudu is a constitutional lawyer, and teacher at Bayero University, Kano. He represented the North-west Zone at the 2014 National Conference. In this exclusive interview, he bears his mind on the issues surrounding the Kogi State inconclusive governorship election and the implications of the death of Prince Abubakar Audu, the All Progressives Congress (APC) gubernatorial candidate, who was leading in the contest before his sudden demise.
The APC candidate, who was leading in the Kogi State governorship poll died after the election was declared inconclusive. Mixed reactions continue to trail this issue since the situation was not envisaged by the Constitution. As a constitutional lawyer, what should be done in Kogi?
We should establish the fact of what has happened and then relate it to the law. Elections in Nigeria are governed by the constitutional provisions as well as Electoral Act. And there is an election manager who has been given various powers to fix a date, and to accept nomination. Now, all the processes have been observed. An election took place. But the following day, Prince Audu died. Regardless of when and at what point Prince Audu died, the important thing is that the election manager, the Independent National Electoral Commission (INEC), has come to a conclusion in the exercise of its powers under Section 53 of the Electoral Act (2010) that there has been over voting in 91 polling units across the state. Once there is over voting, they have the power to void the votes. In this case, as reported, the APC was ahead by 41,000 but the INEC made a determination that the total registered voters in 91 polling units is over 49,000. So, they are of the opinion that it will affect the outcome. That is why they now voided it and declared the poll inconclusive and will hold a supplementary election at an appointed date. Then, there is no problem with what the INEC did. It has legal and constitutional power to do it. The provision even gives the INEC the power to declare the winner if the numbers of voided votes in those areas will not affect the outcome. But in their assessment, they are not satisfied that to do so would have been fair. That is the reason why they did what they did. On the fact of the death of a candidate, we have never had something like this. The death occurred after the election, but before the determination of who the winner is. Now, some are saying why not invoke Section 181. Section 181 of the Constitution gives the deputy governor the power to step into a governor’s shoe when he dies or he is unable to discharge the functions of the office for any reason. The only important thing here is that the section says when a duly elected governor dies, the deputy steps in. In this case, clearly, Prince Audu has not yet been declared a duly elected candidate. The point at which he will say he is duly elected is when the INEC makes a return. But they have suspended making a return until after the make-up election. So, Section 181 is of no consequence. The next question will be: what can happen? Again, the Electoral Act is very clear. It gives the power to the INEC. Section 36 of the Electoral Act provides if after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the resident electoral commissioner shall be satisfied of the fact of the death, countermand the poll in which the deceased candidate participates and the commission shall appoint another convenient date for the election within 14 days. The key thing here is that a candidate dies after nomination before poll. The INEC has the power to countermand, cancel, postpone and change the date of the election and fix another one within 14 days. It means that the INEC has 14 days within which to fix another date for the election in which the candidate who dies would have participated. This does not quite capture what has happened in Kogi in that the nominated candidate here dies in the process of polling. There is still a polling to take place in 91 polling units. And this candidate, if he was alive, is entitled to participate in it. Now that he is not alive, what happens? That is the next question. Who then can participate in the next election in the 91 polling booths? Clearly, the INEC has about three different options. One, it may cancel the entire election and allow the party whose candidate has passed on to nominate another candidate and participate in the election. There is no basis for the cancellation of an election, where a return has already been made. There is nowhere where the INEC is given the power in the Electoral Act to cancel any return already made. So, the deceased APC candidate has scored votes in excess of his opponent by over 41,000. That will stand. The INEC cannot cancel it. Then, what can it do? The other option is for the election to continue in the 91 polling units. Some will say with the deputy governor, being allowed to participate as a ticket. But again, this is tenuous. The INEC deals with nomination of candidates by political parties. And the APC has nominated its gubernatorial and deputy gubernatorial candidate. The gubernatorial candidate has died. The party has no candidate for future election. You cannot say that the deputy governor will participate as a candidate of the party. Therefore, the only option left is the third option. If the INEC receives a notification of the death of the candidate, it can now invoke Section 36. It can on its own ask the APC to nominate a candidate. The party may decide to nominate the deputy and submit his name as a gubernatorial candidate. The case of Celestine Omehia and Rotimi Amaechi is important here. It is the party that participates in an election. So, it is the same party that should be given an opportunity to nominate a candidate and participate in the poll. This is so because if Prince Audu was alive, he would have participated in the election in the 91 polling booths. Although this is a new situation but the INEC would be on safe grounds to fix another date within 14 days for the election to take place in the 91 polling units. Preferably, it should allow the party to take the initiative to nominate its gubernatorial candidate to participate in the 91 polling units.
What will happen if the Peoples Democratic Party (PDP) opposes this option?
What will likely happen is that it (PDP) will challenge that in a court of law. Potentially, it may seek to restrain the INEC from conducting the election in the 91 units. By the way, there is a legal prohibition imposed on courts to restrain the INEC from conducting election on a date it has fixed. Of course, if you go to a court, the court will listen to you. Therefore, the court will tell you we can’t restrain the INEC from conducting the election on the date it has fixed. Now, what is the other option? The court may tell them that you, of course, have the other option of challenging the validity of the return. You can wait until the INEC makes the return. After the conduct of the election in the 91 polling units, the INEC will make a return regarding the winner and loser. Then, you can challenge the result of that election, but prevent it.
What will happen in a situation whereby the court grants the PDP prayers to stop the poll?
The interested parties can appeal against that order. Obviously, it may take time. But the PDP has the right to seek to prevent the INEC. If it gets a listening ear from the court, an aggrieved party can challenge that restraining order. Hopefully, it may be resolved expeditiously. I know you worry about the number of days the incumbent governor has. Whatever the number of days, if there is a challenge that drags on up to the date when the governor’s tenure expires, he has to leave office. The Constitution is very clear. He must leave office after four years. If he leaves office, there will not be a vacuum. There will be an acting governor. He and his deputy will go. The speaker can step in as acting governor until the issue is resolved. That is the consequence of what may happen.
Do you subscribe to the view that the INEC should have approached the Supreme Court to seek the judicial interpretation of the issue?
Unfortunately, under 1999 Constitution, there is no provision for advisory opinion. You can’t go to court to seek interpretation of a provision in an advisory capacity. Our Constitution only provides litigation. Somebody has to contest a decision made by the INEC in this case. I don’t think the matter is outrageous. It is new, it is not envisaged, but there is a room within the language of Section 36 of the Electoral Act which has given the INEC power to take action….If the PDP or any other aggrieved party are dissatisfied, they can challenge it in a court of law, then there will be a decision in a litigated and contested sense. In 1963, during the First Republic, our Constitution did allow the invocation of the court’s advisory opinion. But we don’t have it in 1999 Constitution.
If the APC is fielding a fresh candidate for the election, will the party select its candidate or go through another primary election?
Since they will nominate, it will be advisable that they follow the nomination process.
What is the nomination process?
The nomination process is that there will be another fresh primary election to determine the candidate. With what has happened in Taraba, although it is not yet resolved, I feel that the APC will be wary of ignoring this requirement. However symbolically, they can do it in one or two days.