Just when Abubakar Audu the APC candidate in the Kogi State gubernatorial election was harvesting the largest number of votes under a joint ticket with Abiodun Faleke and they were coasting home to victory, tragedy struck, Audu died.  A few hours before, the Independent National Electoral Commission (INEC) had declared the election inconclusive. Ayo Turton

This case has presented us with a situation never seen before in our constitutional history and therefore has provided us with the opportunity to develop our laws and grow our nascent democracy. It is little wonder then that many legal pundits across Nigeria and beyond have reached into their legal arsenals to weigh in. 

Without boring you with too much legalese and already known facts, let us quickly address the germane legal issues arising. 
Per Section 181 (1) of the Constitution:

“If a person duly elected as Governor dies before taking and subscribing 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”.

This scenario expressly addressed where a candidate may have been duly elected, Audu is yet to be duly elected.
Per Section 36 (1) of the Electoral Act:

“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”.
This scenario addressed where the death occurred before the commencement of the poll. Audu died during the pendency of the poll. 

A popular legal opinion on this is that there is a lacuna in our law and therefore various conflicting legal conclusions have been arrived at by some of the most brilliants lawyers in the country.  

What I see here is confusion largely created by INEC and not a lacuna in our law.  Legal documents are organic documents therefore interpretation of the law by whatever rule you choose to adopt is based not just on the letter of the law, but also the spirit of the law and the law of equity. You must have carefully examined these other parameters for legal interpretation before a conclusion of a lacuna can be reached.  I am yet to read or hear a legal pundit that has carefully examined the spirit of the law and also the law of equity with regards to this matter, every conclusion has been based on the letter of the law so far.

How did INEC cause this confusion? According to INEC, APC is leading with about 41, 300 votes in about 90% of the total electoral precincts declared and there is about 49,900 REGISTERED VOTERS in areas where votes were canceled and because the outstanding number of accruable votes is bigger than the margin of APC win, the election is declared inconclusive. Partial election to be conducted at a future date.

Now here is the problem, what informed INEC’s decision to base the cancellation on the number of REGISTERED VOTERS as opposed to the number of ACCREDITED VOTERS?

There has never been any election where 100% of the voters would vote. Number one, not all registered voters would still be domiciled in the precinct, some may have died, some may have relocate, travel and some for various reasons may have been unable to vote or decided not to vote. But most importantly, not all registered voters would have been eligible to vote but only those properly accredited. Since we are talking about canceled votes here, the common sense implication is that there was accreditation before the commencement of the process, since only those accredited would have been eligible to vote, INEC should have based its rationale for whether to declare the election inconclusive or not on the total number of accredited voters compared to APC’s margin of win as opposed to the number of registered voters.

I have a serious doubt in my mind that we would have had more than 41, 300 (approximately) accredited voters in a precinct with only 49000 registered voters. Therefore it would have been unnecessary for INEC to declare the election inconclusive, since the outstanding votes would not have been enough to change the outcome of the election. I respectfully submit.

Now that we are confronted with this scenario, Audu/Faleke were on a joint ticket, that is settled law and therefore Faleke is not a beneficiary of Audu’s election but an equal partner. It is therefore totally inequitable for anyone to even contemplate canceling 90% of the votes declared in favor of that joint ticket because one of the partners is dead. A Gubernatorial joint ticket is a joint ownership that comes with a right of survivorship as applicable under joint ownership inheritance law. This is why a Governor cannot remove his Deputy and the Deputy automatically steps in when the Governor dies or otherwise incapacitated.

Whereas the letter of the Constitution at Section 181 (1) may not have stated this, it is glaringly within the spirit of that provision for Faleke to step in if APC eventually wins after the supplementary election.

Equity deems as done that which ought to be done. The law of equity was developed to take care of inadequacies in the written law. In the circumstances of this case, votes goes to the political parties according to the Supreme Court in Amaechi’s case, a political party needs candidates to get on the ballot, since the threshold was met at the commencement of the election, and 90% of the total precinct is already declared before Audu’s death, equity should intervene that the candidates have been presented in principle and Section 181 (1) will automatically intervene if APC eventually wins. Canceling 90% of votes where Faleke is already winning and commence a new election because of about 10% outstanding votes is clearly not a legal or equitable alternative. Who cancels 90% for 10%?

That is clearly against the spirit of our law that places emphasis on substantial compliance. The threshold for the letter and spirit of the law regarding “substantial compliance” is already met before Audu died. Our courts are not just courts of law; they are courts of equity as well. I doubt if any unbiased Judge would find otherwise.

My conclusion therefore is that INEC must reverse itself by tabulating the number of accredited voters in these areas as opposed to the number of registered voters. If it finds that the number is lower than 41, 300 people, APC candidates should be declared the winner and Section 181 (1) of the Constitution should kick in. If however the number is still bigger than 41300, partial election should be conducted with Faleke standing in as the equitable inheritor of the joint ticket till Section 181 (1) of the Constitution kicks in if APC eventually wins.

Ayo Turton is a US based lawyer. Email: [email protected]

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