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Death, An Inconclusive Election And The Law (Part II) By Kennedy Emetulu

November 26, 2015

The first part of this piece was written immediately after the death of the APC candidate in the Kogi governorship election, Prince Abubakar Audu was first reported. In that piece, I expressed the view that despite the fact that there is seemingly no clear constitutional provision or provision in the Electoral Law 2010 to deal with a situation where a candidate dies during an election, INEC should do a purposive reading of sections 33 and 36(1) of the Electoral Act to provide a simple, fair, just and lawful resolution of the problem. Here is how I stated it: 

“…I think, even though it’s not a court of law, INEC should adopt a purposive approach to the interpretation of the statute, because that is likely how the court will view it if the matter comes before it. Should it take the matter to court for interpretation first before it continues with the election? That is a decision it should take in consultation with its legal officers, but if I were to advise them, I’d say no need, because the election is already on and the public policy argument must favour a quick and favourable conclusion, so as not to extend the tenure of the incumbent unduly, especially where he may likely not be the one ultimately elected. INEC must always act in the spirit of allowing the people to choose their Governor as at when due. It is the essence of choice in a democracy.

“A purposive reading of the Electoral Act will look at the provisions of Sections 33 and 36(1) and conclude that the mischief the Electoral Act is trying to cure with these provisions is to avoid a situation where death of a candidate frustrates the election. So, the oversight of not specifically considering what happens when a candidate dies during election should not take away the justice and fairness provided in the law for all situations where a candidate dies before or during the poll, especially where there is no material change in the situation between the time before the poll and during the poll when death occurred”.

After considering the practical difficulty the APC would face if forced to substitute Abubakar Audu with Abiodun Faleke, his running-mate, I said the following by way of conclusion: 

“Applying the above to the Kogi case, we do know that the majority ethnic group being Igala, both main parties (any of which is more likely to produce the Governor) invested in Igala candidates. To force the APC to now adopt an Ebira or Yoruba candidate, especially one that was parachuted from Lagos, to fly the flag of the party might be considered a huge disadvantage to the party. Surely, that cannot be the intention of the law. The intention of the law is to provide an equal playing field for the parties. Indeed, it must be presumed that it gives the parties equal opportunities to freely choose candidates that would fly their flag once they meet the democratic requirements within their parties. No party would knowingly commit political harakiri where it has a choice.

“It therefore stands to reason that the APC must be given the opportunity to choose a new candidate to take the place of Abubakar Audu. It is entirely free to determine how it wants to produce this candidate as far as it follows the rules of internal party democracy and INEC observes it. It might choose to go with the candidate that came second to Audu if it thinks it can get the whole of the party, especially its Igala constituents to back him, especially also as the PDP candidate and the incumbent, Captain Idris Wada is an Igala. Or it may choose to conduct another primary entirely and present the winner of this as its candidate for the election. Again, the choice is the party’s as far as it meets the internal democratic quotient stipulated. 

“For this to happen, the provisions of sections 33 and 36(1) must be applied purposively. Audu would be deemed to have died before the commencement of the poll as 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”. Then the Commission shall appoint some other convenient date for the election within 14 days. Already, the poll that would be countermanded is the supplementary one, which arose from an inconclusive one. Both polls must be treated as one, because it is the one poll to determine the governorship of Kogi State. A countermanding of the election on account of death is simply the fair outcome. 

“Once this is done, the fairness and objectivity of the process cannot be questioned. The APC will have the opportunity of sending another name to the Commission who must, in choosing a new date within 14 days of the formal ascertainment of death of the candidate by the Chief National Electoral Commissioner or the Resident Electoral Commissioner, consider that there has to be at least 45 days before the election in order to give INEC and the parties the time to prepare as required by law.

“I therefore look forward to INEC cancelling or countermanding the Kogi election and giving the APC the opportunity to produce a new candidate for a new election. Hopefully, everything will be concluded within the next two months without anyone taking us through the courts. However, if anyone decides to go to court, they are welcome; yet this shouldn’t stop INEC from getting on with the job of providing the Kogi people an opportunity to chose their Governor lawfully. If at the end of it all anyone still feels aggrieved and wants to challenge the election outcome, they’d be free to go to the Kogi State Election Petition Tribunal as stipulated by law”.

On Tuesday, 24th of November, 2015, the Independent National Electoral Commission (INEC) issued a statement indicating it has made a decision with regard to the Kogi situation. I reproduce the statement below verbatim:



The Independent National Electoral Commission conducted Governorship Election in Kogi State on 21st November 2015, which was declared inconclusive.

On the 23rd of November 2015, the All Progressives Congress (APC) notified the Commission of the death of its Governorship candidate in the election, Prince Abubakar Audu.

The Commission has, after due consideration of the circumstances, decided as follows:

to conclude the process by conducting election in the 91 affected Polling Units as announced by the Returning Officer;

to allow the All Progressives Congress to fill the vacancy created by the death of its candidate;

 to conduct the supplementary election on 5th December, 2015.

Accordingly, notice is hereby given to all the 22 Political Parties participating in the Kogi Governorship Election that supplementary election in the 91 affected Polling Units shall hold on 5th December, 2015.

Dated this 24th Day of November, 2015.

Signed: Mrs. Augusta C. Ogakwu
Secretary to the Commission

It was thereafter reported that the Attorney General of the Federation, Mr Abubakar Malami advised INEC to act in the above manner. In explaining his reasoning, the Attorney General was quoted saying the following:

“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 political a political party is sustained by the provisions of section 33 of the Electoral Act. And if you have a community reading of that section with section 221 of the constitution which clearly indicates that the right to vote is the right of a political party and the party in this case, the APC has participated in the conduct of the election. It is therefore apparent that the combination community reading of the two provisions does not leave any room for conjecture. APC as a party is entitled to substitution by the clear provisions of section 33 of the Electoral Act. Also section 221 of the Constitution is clear that the votes that were cast were cast in favour of the APC. Arising from that deduction, it does not require any legal interpretation. The interpretation is clear, APC will substitute, which right has been sustained by section 33 of the Electoral Act. So be it. The supplementary election has to be conducted along the line.’’

In the first instance, the immediate issue is not with the rightness or wrongness of the AG’s opinion, it is the wrongness of the act itself and the inappropriateness of the forum and timing of this opinion. Mr Malami ought to realise that he is not the Minister of Justice and Attorney General of the APC, but the Minister of Justice and Attorney General of Nigeria. That is one of the most important offices of state and anyone appointed into that office needs to carry himself/herself appropriately. He might be a Minister who is expected as Minister (Minister of Justice) to do the biddings of the government he serves through the instructions of the President or any other official to whom the President appropriately delegates the power, but he cannot do so unlawfully, because as the Attorney General, he is the buffer of the people against lawlessness and injustice and if the interest of the people and our laws conflict with the interest(s) of those who have appointed him, his only recourse is to defend the law and the people. He cannot lend himself to be used to make a mockery of the law in order to serve a partisan end.

What he should have done in the circumstance was advise that INEC and any other interested party seek judicial opinion and if he felt he had something to contribute to its resolution, he has the freedom of the floor of the court where the issue is being heard to state his view, like any other senior lawyer or friend of the court. What he has done here is to play a very dangerous and partisan role that seriously undermines the credibility of the government and INEC and that cannot be good for democracy and accountability.

Okay, having dealt with the inappropriateness of the comment in terms of timing and forum, let’s examine the opinion itself in the light of reason and in the eyes of the law. At this point, I’ll crave the indulgence of anyone reading this to patiently follow my thinking. I’m not saying you have to agree with me if you aren’t convinced; I’m saying follow my thinking, because my objective at all times I’m discussing the law is to make it accessible to laymen and lawyers alike. The law may be choked full with arcane and seemingly incomprehensible language and regulations of all sorts, but in the end it’s plain reason and common sense. If you are patient enough to untie it and remove the obfuscation, you will get your answer, no matter your level of education.

The first question I would like us to address is why this opinion? What exactly does the Attorney General intend to achieve with this opinion and his interpretation of the law and advice to INEC, which the latter is now acting on? A look at his whole statement will reveal two motives. It is clear that the selective reading of the law on one hand and his “community reading” of section 221 of the Constitution and section 33 of the Electoral Act on the other is aimed at pushing the view that the individual does not matter in the election, because only political parties do. 

As a corollary to that purpose, he goes further to bifurcate the vote on the basis of that principle in order to impose a non-participant in the main part of the electoral process as the beneficiary at the finish line. He, through INEC and possibly in collaboration with the APC, wants to impose an electoral choice on Kogi people based on what is widely thought to be the near-win situation of the APC before the declaration of the election as inconclusive. He’s seeking to launder INEC’s decision to go for a supplementary election as lawful, even after the unfortunate death of the APC candidate.  In other words, the AG is trying here to shoehorn the law into spaces that it doesn’t fit in.

If we calmly read the AG’s comment and weigh it patiently against the law, we will immediately see that to serve the purpose of undermining the individual candidate and project the party as everything, the AG establishes a false debate or a false dichotomy between the individual and the party and uses as authority  (without expressly saying so) the ruling in Amaechi vs INEC et al, S.C. 252/2007 and an unnecessary coupling of two laws (section 221 of the Constitution and section 33 off the Electoral Act) to arrive at an answer already in his head, even if clearly unlawful.

Here is what the sections of the law he’s quoting say:

Section 221 of the 1999 Constitution:
“No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election”.

And section 33 of the Electoral Act:

“A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 32 of this Act, except in the case of death or withdrawal by the candidate”.

The AG wants us to do a “community reading” of these two sections of our law to arrive at what he said is “straightforward”, but why should we do so when both laws actually serve different purposes in the main, even where at certain points, depending on what is in issue, they could serve the same purpose? The question we therefore need to ask is whether the situation we have in Kogi is such that requires this community reading. I say no. The attempt of the AG to give both “a community reading” is obviously illogical. Fact is we can read both separately and get their full meanings and applications in separate situations without having to read it together to apply in a situation they clearly do not work together, just as it does not work with this situation in Kogi.

First, in his attempt to remove the human element from section 221 of the Constitution, he concludes that the section is saying the right to vote belongs to a political party and therefore since the APC is the political party, it implies that it has the right to appropriate votes cast already for another candidate to itself with the further aim of gifting those votes to another candidate used to substitute the first in a new election. But is that true? Of course not. The leap in logic is astonishing, not only because nothing in our law supports that, but nothing in any law in any viable democracy anywhere in the world supports that!

Let’s examine the words of George Adesola Oguntade J.S.C. (as he then was) explaining section 221 in the context of Amaechi’s situation versus Celestine Omehia and the party. Again, just as I did in Part I of this piece, I have taken the liberty to quote extensively to allow us see the full thinking of the court in reaching its decision, because that will allow us  appreciate my application of it here as opposed to how the Attorney General explained it for the purpose of imposing an unlawful process on Kogites and Nigerians. Hear George Adesola Oguntade J.S.C. (as he then was):

“There is no doubt that P.D.P having previously sent Amaechi's name to INEC by letter on 26/12/2006 could only validly remove the name or withdraw it if it complied with section 34(2) above.  The cogency or the verifiability of the reason for the withdrawal of a candidate's name has to be considered against the background that INEC officials, pursuant to section 85 of the Electoral Act above, would have been present at a meeting or congress of a party called for the nomination of a candidate for an elective office. INEC would thus know the results of such party primaries. When a political party later asks to substitute a candidate, it does so against the background of the result of the primary election. If there is a problem with a candidate who comes first, then the party will opt for the 2nd  and later 3rd  etc in that order.   There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate. This seems to me a praiseworthy attempt to enthrone intra-party democracy in order to ensure that our democracy is truly reflective of the people's choice. Now section 221 of the 1999 Constitution provides:

“No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election”.

“The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties.   Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election. I think that the failure of respondents' counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not.   In mundane or colloquial terms we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is his party that has won the election.
“I mentioned earlier that P.D.P did not provide cogent and verifiable reason for the attempt to substitute Amaechi with Omehia. Not having done so, Amaechi who had acquired a vested right by his victory at the primaries and the submission of his name to INEC was never removed as P.D.P's candidate.   If the law prescribes a method by which an act could be validly done, and such method is not followed, it means that that act could not be accomplished. What P.D.P did was merely a purported attempt to effect a change of candidates.   But as it did not comply with the only method laid down by law to effect the change, the consequence in law is that the said change was never effected.   In the eyes of the law, Amaechi's name earlier sent to INEC was never removed or withdrawn.
“In his argument in the brief filed for P.D.P, J.K. Gadzama S.A.N, senior counsel argued that Amaechi who had not contested the election could not be declared the winner.  He stated that such a declaration would amount to a negation of democratic practice. With respect to counsel, I think he missed the central issue which is that it was in fact Amaechi and not Omehia who contested the election.
“Omehia remained no more than a pretender to the office.  The one unchanging feature is that P.D.P was the sponsoring party”.

I had clarified in Part I that the Electoral Act being referred to here is the 2006 version which was the applicable law at the time of the case in 2007. I also clarified that it is not an issue in this case. I further pointed out that “we do recognise that the issue before the Court in Amaechi’s case was one of withdrawal of candidate by the party, not death” and that “the interface with our case here is that both revolve around the appropriate way a party can replace a candidate for the purpose of election whether the original candidate died or withdrew or was withdrawn”. I then stated: “What this case established, which none of us are arguing here, is the primacy of the party in making that decision”. It’s important to note this, because that is the core of the unnecessary controversy self-generated by the Attorney General here.

Now, please, note carefully that Justice Oguntade did not rule out the importance of the individual candidate, even where emphasising the primacy of the party in section 221. What the learned Justice was pointing out was the aspect of the provision that defines the party’s position vis-a-vis the individual’s. He did not seek to obliterate the individual’s right inherent in the provision, he merely defined its extent. So, the provision in plain language is simply telling us that only the political party as an association (to the exclusion of all other associations, e.g. your village or town association, your alumni association, your professional association, etc)  can canvass for votes for the candidate and contribute to the campaign funds or election expenses. Of course, this does not mean other associations cannot help, rather what this is saying is that all help has to be channelled through the party as the party is the only recognised entity that can sponsor candidates. This does not in anyway diminish the importance of the candidate nor seek to make the party the only important party in the election as implied by the interpretation of the AG. To adopt that explanation would lead to an absurd result, as the illogicality is obvious. For instance, if we adopt the AG’s interpretation that “it is only a party that canvasses for votes” and that “it follows that it is a party that wins an election”, can we then go ahead and present only the party without the candidate for an election? Can we say: “Hey, for the presidential election, we have no candidate, because they don’t matter. Only the party canvasses for votes and only the party wins elections, so, here is our party without a candidate for the election to the presidency”? Can we do that for the Governorship, Senate, House of Representatives, House of Assembly elections and so on? 

Of course, the key thing this provision does is to remove the possibility of independent candidacy, which is what the learned Justice explained. It did not remove the possibility or importance of the individual as sponsored by the party. In that process, the individual is as important as the party, even where the party has supremacy over the individual in terms of choice and sponsorship, precisely because there is no provision for independent candidacy. For the Supreme Court, the purpose of quoting and explaining section 221 of the Constitution in the context of the Amaechi case is two-fold. On one hand, it is to show that the fact that Amaechi’s name was not on the ballot in the general election cannot take away from him the benefit of that election, having met the fundamental conditions of participating in the party primary to choose the governorship candidate and having handily won that contest. On the other hand, it is also to show that the party cannot benefit from its own deliberate breach of the process by purporting to withdraw Amaechi when it could not give a good reason for doing so.

What the above therefore means is that the real issue isn’t that Amaechi was the party candidate, it was that the party could not give a cogent reason for withdrawing Amaechi as its candidate after he had won the primary. And because the attempt to withdraw him failed in the eyes of the law, the law deemed Amaechi the party candidate that was presented at the election and not Celestine Omehia who never contested the primary. In other words, if the party had provided the Court good reason(s) for withdrawing Amaechi, he would not have been a beneficiary of the election. From Justice Oguntade’s words, the likely beneficiary would have been the person who came second behind Amaechi in the party primary, Senator Martins Yellowe who scored only 28 votes to Amaechi’s 6,527 votes. Obviously, we are aware of the whole political infighting that went on and how other candidates accused Peter Odili of using “financial inducements” to buy the party primary for Amaechi and how a lot of the candidates walked out and so. The point though was that the Supreme Court accepted it as a valid party primary and it was on that they based their decision.

So, here is the difference between the application of section 221 in Amaechi’s case and its forced and false application by the AG in the Kogi matter: In Amaechi’s case, section 221 was used to debunk the argument of counsel to Omehia that it would be against democratic practice for someone who did not stand in the election to be declared a winner. Justice Oguntade used the section to show the primacy of the party over the individual, pointing out that as far as Amaechi met the requirements of passing through a valid party primary and winning it and as far as the party has no genuine reason to withdraw him, he remained the candidate and was deemed the winner where the party won the election with another candidate. However, in the Kogi case, it is a false argument, because, just as I pointed out in Part I of this piece, nobody is disputing the primacy of the party or its role in choosing a replacement for Audu. Here, we are not dealing with withdrawal or a purported withdrawal, but with death. 

After the AG intervention and INEC’s decision, the whole gamut of arguments now centres around only three options: Should the APC present Abiodun Faleke, being the running-mate to Audu for the election? Should it present the runner-up to Audu in the primaries, Alhaji Yahaya Bello? Or should it simply go for a fresh primary and present the winner? In all these, no one doubts that it is the party that will present the candidate in line with section 221 of the Constitution. However, the real issue, which the Attorney General is running away from and which INEC is trying to run roughshod over against the law is whether in the contemplation of the law we should be talking of a supplementary election or a fresh election. Section 221 of the Constitution has nothing to do with that question. Rather, if we are having a community reading of sections, we should, as I again stated forcefully in Part I of this piece, be looking at sections 33 and 36(1) of the Electoral Act, because they are the only sections that jointly talk about what happens at the death of a candidate in an election. 

Thus, the issue before us is whether there can be a purposive reading of both sections (sections 33 and 36(1) of the Electoral Act) to give voice to the real purpose of the law, as I suggested or whether we should be adopting the Attorney-General’s false argument of “community reading” of section 221 of the Constitution (which is not disputed) and section 33 of the Electoral Act. Of course, the reason the AG and INEC will never mention section 36(1) is because it blows their whole illegal project out of the water, as a countermanding of the proposed poll in which the deceased candidate was to participate inevitably means a fresh election with a fresh candidate by the APC to contest freshly with every other candidate in order to present a level playing field. I mean, think about it: Why would INEC be calling on all 22 political parties to participate in a supposed supplementary election that is more or less already determined for only one party (APC) or at best two (APC and PDP), irrespective of the right of anyone to go to the Tribunal to challenge the result or aspects of the results later?  And while we are at it, where exactly in the Constitution or the Electoral Law was any provision made for what INEC calls “Supplementary Election”? The law has provided guidance on what to do if someone dies, we do not need to obliterate individual rights to project the primacy of the party.

In my view, there is actually only one question we need to formulate at this point. The answer to this singular question will resolve this matter easily, no matter what side of the political divide you are, as far as you are someone committed to lawfulness, fairness, justice and due process. And here is the question: “Is it reasonable, fair, just and lawful that the votes cast for a dead person in an election be counted in favour of another person, not originally part of the election, but now in the same election or in an election arising from that same election for the purpose of determining the elected Governor of a state of the federation?” Of course, I am saying no, because if our aim is to achieve fairness and justice, we do not have to circumvent the law or twist it to achieve that purpose. Our aim must be to provide a solution that will satisfy all voters, all parties and all candidates for the simple reason that it provides a level playing field with no legal traps in front to frustrate the genuine democratic decision of the people of Kogi State.

So, without a doubt, the legitimate aim here is to ensure that the death of Audu does not frustrate the lawful process and fair outcome of the election. It is my belief that the law is clear enough to apply to achieve this aim. The two sections of the Electoral Act I propose to be applied to solve the problem do so effectively without controversy once read purposively, responsibly and reasonably. Sections 33 and 36(1) of the Electoral Act deal exclusively with the matter of death of a candidate at the point of election. Section 33 states clearly that death is one of only two reasons a political party can change or substitute a candidate towards an election and section 36(1) gives more detail as per how the electoral officer must formally ascertain and confirm death and what INEC needs to do next in order for the election to hold in a level playing field. What seems to be the problem here with interpretation is the fact that section 36(1) states that this section applies if death occurs “after the time for the delivery of nomination paper and before the commencement of the poll”. The unintended consequence of this is that it seemingly does not provide a direction as to what to do when death occurs during the election, as in this case. 

However it is my view that if read purposively, the intendment of that section is that it should cover situations like this, because such a reading is reasonable in the circumstance. For instance, it meets the legitimate aim of ensuring that the death of Audu during the election for the governorship of the state does not frustrate the lawful process and fair outcome of the election. With this reading, there cannot be the assumption that every person who voted for Audu in the inconclusive election would accept that their vote go to another person chosen to replace him only for a supplementary election when the Constitution and the Electoral Act has no provision for a supplementary election as organised by INEC. The fact that such unconstitutionality has been going on during past elections is not an excuse that it should continue. A purposive reading of section 36(1) balances proportionally the interest of the individual voter and candidate and the interest of their parties. For instance, the operation of section 36(1) allows every candidate in the election to have a chance of winning. The law does not act in futility. It gives every voter the opportunity to make a choice or change their mind about party or candidate based on the new reality of the death of a candidate in the election, which is the whole principle of free and fair choice in an election. It does not allow anyone or INEC or party to gift a free citizen’s vote to a candidate he might not like, a candidate that he never voted for. If indeed he would have voted for the candidate if presented, then he still has that opportunity to do so with the operation of section 36(1). That right will never be taken away from him by the operation of section 36(1).

The operation of section 36(1) ensures that INEC and the parties meet the statutory times indicated in the Electoral Act for every stage of the election without the attempt to short-circuit it illegally as we have seen from the decision now taken. It gives the people and the parties the time to prepare for a free and fair election where every candidate has a chance and not the one where 22 parties are called to participate in an illegal supplementary election whose outcome is already determined against at least 20 of them. Indeed. there is no less onerous way to achieve the intendment of the Constitution and the Electoral Act with regard to a free and fair election than what I am proposing with section 36(1). 

The application proposed by the Attorney General is oppressive, as it ignores the people who should matter more in an election and every candidate, but one or at most, two. There is nothing in its application that shows it’s aimed at ensuring that the death of Audu does not frustrate the lawful process and fair outcome of the election, because the outcome we’ll get from its application cannot be fair, just and lawful when it focuses on a small proportion of the electorate whose vote makes no difference to a predetermined outcome. In a statewide election, the competing interests are the parties, the people and all the candidates in the election. There is a reason the Electoral Law makes such clear exception in the case of death and why it gives the electoral officer such power to countermand an election upon the death of a candidate. The fact is this ‘solution’ proposed by the AG is being proposed because we know the result of the inconclusive election already. If the result were a little different or the other way round and the death in question was that of a smaller party contestant not in the running, or even the other main party candidate, the AG would not propose what he is proposing now. He would be at the forefront of those calling for the proper application of sections 33 and 36(1) of the Electoral Act, because he knows his party stands a chance of competing fairy and winning. The fact is death of candidates changes elections in every known democracy and there is no known democracy anywhere on planet earth that organises partial or supplementary elections upon the death of a contestant and then awards the vote of the dead contestant to a replacement. Let the Attorney-General tell us where else what he wants to apply in Nigeria now applies. 

To say the truth, the Attorney-General and INEC are not helping Nigeria or the APC with what they are doing. For instance, we now know the APC, on the strength of what the AG has said and what INEC has decided, has decided to have a party primary to choose a replacement candidate. While the AG is giving the impression that the party is the be all and end all in this matter, we need to be aware that the evolution of the law with regard to substituting or replacing candidates has been towards restricting the power of the party in this regard. For instance, while the 2002 Electoral Act did not restrict the power or right of the party to substitute candidates in any way, section 34(2) of the Electoral Act 2006 only gave the party the right to replace or substitute a candidate only if they gave a cogent and verifiable reason for the substitution after the name has been submitted to INEC. As we saw with the Amaechi decision, the Supreme Court ruled in Amaechi’s favour only because the PDP did not give cogent and verifiable reason for substituting Amaechi with Omehia. Today, under section 33 of the Electoral Act 2010, the power of the party has ben further restricted. The wording of the section clearly indicates that the intention of the drafters is to do so: "A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 32 of this Act except in the case of death or withdrawal by the candidate”. So, it is even no longer a case of giving cogent or verifiable reason. They simply are not allowed except where the candidate himself withdraws or where he/she dies. 

So, with regard to the ongoing Kogi State election and the death of Audu, there is no argument as per the right of the party to replace him. The false argument being proposed by the AG is based on the presumption that there is an argument as to whether or not the APC can replace Audu. His injection of section 221 of the Constitution in a community reading with section 33 of the Electoral Act adds no value to the debate as section 221 does not give the party any extra power beyond that already conferred on it by the Electoral Act. There is no dispute that as far as there is no provision for independent candidacy in our law, the political party remains the institutional vehicle for vote canvassing, funding and sponsorship of candidates in an election. The APC has to be careful, because it is actually the only party with something to lose here. It is the party that has to make a decision and if it kowtows to the unlawful lead of the AG and INEC, it might lose everything. It has to look at things independently and act in its own best interest. Now, let me explain its problem as things are presently.

An election was conducted on Saturday 21st of November, 2015 and the result was declared inconclusive when parts of the released result indicate that the APC was likely to win. INEC’s excuse for declaring the election inconclusive was because the collation of results from the 21 local government areas of the state showed that the cancelled votes were higher in number than the margin between the leading candidate, Prince Abubakar Audu of the APC and the PDP candidate, Captain Idris Wada who was the runner-up. This decision itself is questionable. The released result so far had Audu leading by about 41,000 votes, while there are about 49, 000 voters in the 91 affected polling units where the supplementary election is scheduled. Some have made the case that only about 25,000 of these voters have PVCs and not certainly all of them are likely to vote for the PDP candidate. At the time of declaring the election inconclusive, Audu had already gotten 25 percent of the votes in two-thirds of the local government areas of the state and was leading in the overall vote count with the margin above, so why did INEC not declare him winner on the strength of the argument that the likelihood of the nearest challenger, Captain Idris Wada of the PDP making up the votes to beat Audu from a supplementary election is remote?

Well, whatever the rightness or wrongness of the situation, the fact is INEC did not declare Audu winner. Instead it declared the election inconclusive and crucially, yes, crucially the APC did not challenge this. They did not challenge this publicly and they did not seek judicial intervention. They sat there trusting INEC’s judgment. That was where they were when Audu died and introduced a new dimension to the whole saga. Now, what have we got? We have an overzealous Attorney General who is a member of APC seizing INEC and driving them towards an end that he thinks will favour his party, but which in the end could sink them, because of its blatant unlawfulness. Malami’s whole focus is on ensuring that the illegal supplementary election holds and that the formality of declaring an APC candidate the winner is completed. But if that happens as things are, the APC should as well be congratulating Captain Idris Wada, because the courts will have no problem declaring whoever the APC puts forward now for the supplementary election ineligible and handing the election to the next candidate, who would be Captain Idris Wada of the PDP.

Okay, let me not go into explaining why the supplementary election is illegal, except to say what I’ve stated before, which is that it is unknown to our Constitution and the Electoral Act. Instead, let me at this point simply show the singular basis that any election conducted now on the present arrangements being put in place by INEC will not favour APC. The reason is simply the law. It is section 141 of the Electoral Act, which states: “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”. This is a section that was introduced into the law after the Amaechi case. In other words, this section simply continues the legislative tradition of restricting the right or power of the party over the individual. In fact, it was plainly introduced to overrule the idea in Amaechi that political parties contest and win elections directly. 

Crucially, section 141 has been given judicial interpretation by the Supreme Court in the case of Congress for Progress Change & Anor. v Hon. Emmanuel David Ombugadu & Anor (2013) LPELR - 21007 (SC). The case was an appeal that arose from a dispute as to who between two candidates was the validly nominated and elected person in the April, 2011 general election to represent the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the House of Representatives. In a party primary originally conducted for the position, Hon. Emmanuel David Ombugadu won the nomination and his name was submitted by the party to INEC. But on January 15 2011, the party organised another primary purportedly for the same position and declared Idris Yahuza Yakubu as the winner and the new party candidate for the election. 

The Federal High Court, Lafia Judicial Division, in line with the whole party supremacy theory ruled that in the eyes of the law, Mr. Emmanuel David Ombugadu was never a candidate in the election much less the winner. It ordered that the Idris Yahuza Yakubu be returned as the winner of the April 9, 2011 election. Mr Ombugadu appealed and the Court of Appeal on May 25th, 2012 ruled in his favour. The CPC and Yakubu then appealed to the Supreme Court. In a unanimous judgment, all five Justices who sat on the panel ruled in favour of Emmanuel David Ombugadu.

In reaching its decision, the Supreme Court interpreted section 141 of the Electoral Act and stated its implication with regard to whether political parties contest, win or lose elections directly in the light of the Court’s earlier ruling in Amaechi. Nwali Sylvester Ngwuta, J.S.C. delivering the leading judgment explained it thus: 

"Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms: "An election tribunal or Court shall not under any circumstance declare any person winner of an election in which such a person has not fully participated in all the stages of the said election." By the above provision, the National Assembly has set aside the decision of this court in Amaechi v. INEC (2008) 5 NWLR (Pt 1080) page 227 at 296. Contrary to the decision of this Court in Amaechi's case, the implication of Section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him. In other words, parties do not contest, win or lose election directly; they do so by 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.”

The above is plain enough. While the Attorney General is raising irrelevant constitutional and statutory provisions, the law has moved on. The statute has been changed by the National Assembly and the Supreme Court has interpreted the effect of that change unambiguously. The implication of this now is that whoever the APC sponsors to participate in the INEC-organised supplementary election, no matter the outcome, will not be the lawfully elected Governor of Kogi State. If INEC declares such a person the winner, the courts will overturn that decision and give the win to the next person in line, who is likely to be Captain Idris Wada. 

And there is the question of time as I have implied earlier. We must necessarily assume that the APC has been given till anytime before December 5th 2015 at most to conduct a primary and produce a candidate to replace Audu in the supplementary election billed for the 5th of December 2015. But how does that work in the light of section 85(1) which states that a registered political party shall give INEC at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of nominating candidates for any of the elective offices specified under the Electoral Act? I see nothing in the Electoral Act that allows the party or INEC to derogate from that under any circumstance. It would therefore not be an excuse in court to say INEC fixed the date and all you did as a party was follow. It is a mandatory notice the terms of which cannot be circumvented or short-circuited. 

So, clearly, it is not a case of whether the APC wants to present Abiodun Faleke or Yahaya Bello or organise another party primary, as Mr John Oyegun and co are preparing to do. The issue is whether the APC would participate in an illegal supplementary election in its desperate bid to be declared winner when in all likelihood such a win would be overturned by the court on the strength of section 141 of the Electoral Act. As far as anybody presented by the APC has not participated in all the stages of the election (including the inconclusive one), they cannot win. The only viable thing for the APC and everyone involved to do is simply insist on the activation of section 36(1) of the Electoral Act. It is the only fair and sensible thing to do.

At this point, if I’m advising the APC, I will say firstly, they should quickly make a public statement rejecting INEC’s declaration of the election of Saturday, 21 November 2015 as inconclusive. They should go to court and invite INEC to come and show why it did not declare its candidate the winner of that election before his death. 

Secondly, they should opt out of the proposed supplementary election proposed on the ground that they are challenging the original declaration of inconclusiveness by INEC. While it might be difficult for the court to rule that the supplementary election is unlawful for public policy reasons, the party stands no chance at all if it participates. If INEC likes let them go ahead with it and declare Idris Wada winner, but without an APC candidate standing, the election would stand a better chance of being overturned in court.  But going to court after winning it with a new candidate in the supplementary election is a sure way of losing it.

Thirdly, the APC should ask that a fresh election be conducted in line with section 36(1) to give the party and all other parties and voting citizens the opportunity of voting for and choosing a Governor of Kogi State. Once INEC agrees to this, the PDP will have no objection and if it does, the law will not support it. It is instructive that it is not talking of applying section 36(1) of the Electoral Act either. Rather, it’s saying that it’s unlawful and unconstitutional to “substitute a dead candidate in an ongoing election even after the timelines for such have elapsed under the rules”. Of course, they are absolutely right, but an application of section 36(1) will automatically make their position otiose.

What I propose here will make life easier for the APC especially and for Kogites and all Nigerians general. The APC would be in a position to decide the candidate it would present without fear of the courts overturning his/her victory tomorrow, if indeed such a candidate wins. It can chose to have a fresh primary to be observed and validated by INEC within the statutory time once the election is a fresh one under the operation of section 36(1) of the Electoral Act or it can simply present the person who was second to Audu in the original primary, Alhaji Yahaya Bello (possibly with Faleke or an Igala person as running-mate) once it is sure that it can mobilise the whole of its party to unite behind him and deliver. It must work from the perspective that the original problem it had was with the character or public perception of its original candidate. But if with even that the candidate was strong enough to be on course to winning before INEC declared the election inconclusive, that shows the party has a lot of goodwill in the state and the only thing that can possibly affect it negatively at this point is internal party strife over this issue. So, unity is key. Once that is done, a candidate without the obvious baggage of Audu and with enough goodwill amongst the Igala would win it for them. If they play the Attorney General and INEC’s game as it is, they are on a hiding to nothing.

As for INEC, what it should do is what it should have done before, which is simply seek judicial interpretation of section 36(1) of the Electoral Act to know if it applies to the situation in Kogi.  I have no doubt that the court will rule it does, but nonetheless, INEC should do so. It should then proceed on the basis of whatever the court rules. But whatever it does, it should not proceed on its present course. What it’s doing now is placing the nation on a keg of gunpowder. We have enough crises at it is, it shouldn’t be creating more for us.