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Dust, Debates And Kogi Governorship Debacle




NO matter the perspective or political platform the protracted governorship election is looked at, it is evident that the civic exercise has exposed the underbelly of Nigeria’s electoral system and jurisprudence. The death of the candidate of All Progressives Congress (APC) midway into the election was unprecedented. And being the first time the new national chairman of the Independent National Electoral Commission (INEC), Professor Mahmood Yakubu, was superintending over an election, the development tested his knowledge of the rules and capacity to retain the independence of the commission. Furthermore the unexpected demise of Prince Abubakar Audu, turned out as a reminder to the National Assembly of the need to have a second another look at the Electoral Act, three years to the next general election instead of waiting for the eleventh hour to do a rush job.  The tricky situation would no doubt help in deepening not just the electoral process but also the nation’s jurisprudence.

One thing that has escaped commentaries on the Kogi debacle is the saying that the law is made for man and not man for the law. And being a creation of man, the imperfection follows the fact that man is limited by chance and circumstance, especially those beyond his control or foresight. Amid the dust raised by the death of the winning candidate in an inconclusive election, INEC appeared to weigh the impact of cost, logistics as well as the constitutional provisions and stipulations of the Electoral Act, that election must be held not later than sixty days before the expiry of the tenure of the incumbent. Most importantly there was a void in law as to what should happen when a candidate dies shortly after balloting and declaration of results. In the Kogi situation, therefore, the fact that the margin of winning votes fell below the total number of registered voters in the polling units where voting was nullified, gave room for the puzzle. Understandably inter-party rivalry took over to accentuate the electoral enigma.

Partisan Divide

THE division over what should be the correct pathway in resolving the impasse between the APC and the Peoples Democratic Party (PDP) and other political parties is deep. It would have been interesting to know how the PDP would have responded to the emergency had it happened while it was in power. Conversely, it would have been interesting also to know what shape its arguments would have taken had it been that as at the time of declaring the election inconclusive, PDP was having the edge. But as the major opposition party, PDP began its resistance to the possibility of fielding a substitute immediately the death of Audu was announced.

Technically avoiding any mention of the tendency towards defeat by its candidate in the election, PDP in a statement signed by its National Publicity Secretary, Olisa Metuh, denounced the suggestion of fielding a replacement for the deceased in the concluding lap of the election, insisting that neither the constitution nor the Electoral Act confers that privilege or right to the APC. The party therefore contended that “if APC is allowed to substitute its original candidate, then the party would have fielded two separate candidates in the same election” maintaining that that scenario “is completely alien to our electoral laws and to any known democratic norms and practice the world over.” Even as it accused the ruling party of foisting the confusion over the matter, PDP brought the partisan flavor in its observation that APC was using the chance occurrence to “divert attention from its glaring incompetence and failure of governance.” But for the tendency of its depositions, PDP failed to lay necessary stress on the position of the Attorney General of the Federation (AGF) Mallam Abubakar Malami, who in his dual mandate as APC chieftain and chief law officer of the federation intervened more in a partisan way than professional circumspection.

As it turned out the nation was losing useful lessons the debate was releasing on the polity due extreme partisanship. Thus, no sooner had INEC come out with its position than PDP demanded the immediate resignation of the chairman and all national commissioners of INEC for swallowing the AGF’s position as that of the law. PDP lost sight of the absence of specific stipulations regarding the death of candidate in the middle of the election. It charged Malami of “deliberately misleading INEC into arriving at the unconstitutional decision of allowing APC to substitute its candidate in the inconclusive election.” That party went ahead to allege that the Attorney General, INEC and APC were setting a precedent such that “a loser in a primary will patiently wait for the winning candidate to finish election and then have him either poisoned or assassinated before the final collation of results.”

Believing that it was riding a superior legal and moral high ground, PDP came out from its national caucus meeting with the position that the death of Audu, the APC’s running mate has inevitably put the party out of the governorship contest. But by reaching that hasty conclusion, PDP forgot that such a scenario being a force majeure could not redound to its benefit. Rather, instead of calling for outright cancellation of the exercise to begin the process afresh, the party started asking that its candidate be declared winner. PDP also tended to forget that it has a similar case in Taraba, where the election petition tribunal granted favours not sought by the petitioner. As the dingdong continued, the question left hanging like a pendulum is, what actually is the meaning of democratic election? For, if as PDP pleaded that “with the death of its candidate, Prince Abubakar Audu, the APC has legally crashed out of the governorship race” it means that the voters that voted for the dead candidate performed a futile exercise just because “there is no known law or constitutional provision (that) allows the substituting of candidates, once the ballot process has commenced.” Yet PDP declared: “With the unfortunate death of Prince Abubakar Audu, the APC has no valid candidate in the election, leaving INEC with no other lawful option than to declare the PDP candidate, Capt. Idris Wada as the winner of the election.”

Perhaps, owing to the trauma of losing its winning candidate, APC descended to the level of the absurd, by seeking to organise a fresh primary election or selection process to generate a replacement for the late flag bearer. Some analysts believe that APC’s attempt to get a substitute through primary election appears a clear misreading of party politics. The essence of the caucus is to act in emergencies. And the death of Audu was without doubt an unforeseen emergency never contemplated by even framers of the Constitution. Should the party have settled for the first runner up at the primary? That must have presented another challenge that pushed the party towards a safe apian way of organising another primary, but that amounted to a pretentious show of internal democracy. First of all, the primary election was not meant to archive a possible substitute, it was intended to produce a flag bearer. In the unforeseen development of death of that flag bearer, the window provided by the Electoral Act in section 33 did not speculate on the manner of choosing a substitute. Without such express stipulation, the onus of getting a replacement lies on the leadership caucus of the party.

In the partisan push and pull, even the group that called itself the Concerned Voters in Kogi State, in attempt to introduce a middle ground, brought up an outlandish proposition. While calling on INEC to reverse its position that the governorship election was inconclusive, the group also rejected the attempt to get a replacement for the remainder of the election. Abdulkareem Jimoh, who made the position of the group public, stated that INEC position was not only unpopular but also against natural law. The Concerned Voters noted that the number of votes scored and recorded in the concluded election gave APC a clear victory. They argued: “In the disputed 91 units, only 35,785 voters (that) collected their PVC are eligible to vote as against the 49,000 registered voters, claimed by INEC. We want the electoral body to convince us, how the outstanding 35,785 eligible voters in the said 91 units could upturn the over 41,000 margin already recorded in favour of APC”. It may be that that line of reasoning swayed the governorship running mate to the late Audu, Mr. James Faleke, to begin his campaign to be sworn in as winner of the election.

But Just as Professor Lai Olurode observed, voters voted for APC and the human element represented by Prince Abubakar Audu, on November 21, 2015. He said that even the Supreme Court decision in Amaechi vs Omehia, which a lot legal commentators cite related to a pre-election situation. Olurode wondered why the votes generated during that exercise should be or discarded, pointing out that if the election had been concluded the death of the winner does not automatically transfer the victory to the party alone. He noted that INEC must have acted in deference to public policy, mindful of the enormous cost invested in the exercise to the point of the APC candidate’s demise. While noting that the courts would further aggregate the various tendencies in the logjam, Olurode, who was a former INEC Commissioner, explained that the Kogi situation, being peculiar and unprecedented, offers Nigerians an opportunity to deepen its practice of democracy.

Choice Of Audu’s Heir

THE combination of geopolitics and sentimental attachment to the dead victor, must have informed the choice of Muhammed Audu as the potential replacement for his dead father. The question, which the choice left in the minds of political pundits, is what if the candidate did not have a son with requisite pre-qualifications or did not even have a wife at all? Intriguingly, APC could not shoulder the burden of responsibility for that transfer of political power to the heir of a governorship candidate. Perhaps, when next INEC is releasing its guidelines, it would also take cognizance of the candidates’ next of kin. But the fear that APC could lose the momentum it had garnered with the late Audu, who hails from Kogi East, must have informed the decision of stakeholders from the zone to fish for the elder son of the deceased. Geopolitical consideration aside, having a Mohammed Abubakar Audu, sort of offers some psychological attachment which could resonate easily with voters, especially those that would ordinarily have voted for the late Audu. Such political transfer of popularity happened in 1991 between Dr. Joe Nwodo and his younger brother; Dr. Okwesilieze Nwodo, shortly after the elder Nwodo was banned from further participation in the Enugu governorship election under the military regime of General Ibrahim Babangida. Again, it was gathered that stakeholders from Kogi East decided to settle for the eldest son to preserve the zoning arrangement and the legacy of Prince Abubakar Audu.

Sources within Kogi APC confided in The Guardian that the party reasoned that since victory has already been won midway into the election, organising a fresh primary election would throw up new animosities and destabilize the party further. The source added that the decision to adopt the late politician’s son, Muhammed, was also to avoid losing out since according to them “selecting a new governorship candidate could necessitate fresh trouble for the running mate.” There is also the mute suggestion that Audu died of unnatural causes. Said the Head of Audu/Faleke Campaign Organisation, Dr. Tom Ohikere, in a statement: “We are not going to mourn prince Audu’s death in vain. We must keep his memory alive by ensuring that the APC continues and finishes what he started. Audu, we believe was killed by anti-democratic forces to stall the development of the state and keep the people under their grip we knew what some of them said during the campaigns. We recall that the same elements killed the torch-bearer of Ebira land, Senator A.T. Ahmed in their desperate bid to put the area in disarray. We must not allow them to realize their wish to sustain their grip perpetually on the state. We will need to rise up, complete what our leader, Prince Audu has started by supporting the APC all the way.”

Lawyers, NASS And Electoral Act

Without doubt whatever steps INEC and the political parties take, going forward in the Kogi governorship supplementary election scheduled for December 5, 2015; must be tested in the tribunals and superior courts. From the contributions of lawyers and activists, it is obvious that nobody could lay hands on a particular provision that contemplated the Audu intermission. The situation calls for a return to the drawing board including a review of the Electoral Act so as to plug all noticed lacuna in the nation’s electoral system.

Good a thing voters and parties must have seen that a minor misdemeanor or tendency towards violence could vitiate the electoral process. The cancellation of election in polling units where incidences of ballot box snatching were reported shows the usefulness of good laws when properly implemented. The National Assembly should as a matter of urgency begin to articulate salient areas of need to firm up the Electoral Act. Governance is possible when the people’s wishes triumph at the polls. That is what Kogi governorship election handed down. The Supreme Court deserves commendation for halting, albeit temporarily the trial of the President of Senate, Dr. Abubakar Olubukola Saraki, at the Code of Conduct Tribunal. National interest demands that if the Code of Conduct Bureau (CCB) could wait for as long as 12 years before activating its processes on depositions by public officers, it could as well as wait for the next four years to consummate the trial of the President of Senate so that the trial does not interfere with the responsibilities of his present office. Irritations and distractions on the National Assembly would limit their ability to make legislative progress. On its part, the National Assembly should avoid distracting itself and know that time is of essence. The development in Kogi, being similar to the case of late President Umaru Musa Yar’Adua in 2010, could touch on a cinder in the nation’s tense polity to set off a conflagration if not properly handled.

INEC And Independence Of Judgment, Operation

The Kogi election rekindled the need for INEC to prepare itself for unforeseen developments especially in the areas of internal decision making, proper budgeting and contingency planning. Granted that nobody envisaged the demise of a candidate midway through the electoral process, the nation’s electoral environment shows the predilection for repeat or rerun as was caused by the 91 polling units where polls were cancelled. This no doubt would entail further cost in logistics, materials and money. But could it be that cost ranked highly in the commission’s stand to avoid total cancellation of the election? If cost was the central consideration for the decision to carry on with the patched up election, it would endanger the polity by laying undue weight on the legal system.

Such buck passing may whittle the integrity of the commission and elections it conducts. However, against the background of calls by certain commentators and opposition that votes already counted and recorded died with the winning candidate and party, the preference of voters should not be discarded. INEC did not convince Nigerians that it was exercising independent judgment when it urged substitution of the deceased flag bearer. This is because the commission’s stand came shortly after the AGF made his purely partisan interpretation, thus tainting the independence of the electoral body. The Professor Attahiru Jega regime of INEC made some innovations which helped to ensure the fidelity of voter preferences.

From what is happening in Kogi under the incumbent Professor Yakubu, Nigerians are concerned about the sustainability of the positive initiatives of the Jega administration. A faint hallow of doubt hovers about whether Audu died before the election was declared inconclusive or shortly after. Being a human organization, INEC is entitled to make its mistakes but they should not give room for suspicion that the mistakes are of the heart. The Kogi debacle may either infuse life into Nigeria’s democracy and make for positive growth or stir a relapse to the garrison methodologies of the Professor Maurice Iwu interregnum. The parochial debates on the Kogi debacle should pan towards a national discussion to aim towards the ideals of true representative electoral processes and outcomes.

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