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The Kogi election conundrum



Late Prince Abubakar Audu

THE controversy trailing the stalemated gubernatorial election in Kogi State, following the sudden death of Prince Abubakar Audu, the All Progressives Congress candidate in the polls, manifestly points to the glaring absence of an appropriate constitutional provision to guide the legal conundrum that has ensued.

But the resolution does not need to be as heated as it is, if only the actors and stakeholders would sheathe the sword and carefully explore the options of the law and particularly, a judicial intervention.

From the declaration of the election as ‘inconclusive,’ call for supplementary election – scheduled for Saturday, December 5, 2015 –made by the Independent National Electoral Commission (INEC); the objection of the Peoples Democratic Party to INEC’s request that the APC submits a replacement for the deceased; to the tension within rival camps in the APC over fielding of fresh candidates, and the rather hasty pronouncement of the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), and the equally hasty acceptance of same by INEC, the stage was set for a political and constitutional crisis.

Amidst a dissonance of legal interpretations, this complicated circumstance may be embarrassing to INEC; but it poses some hard lessons to the nation. It also passes a strong message about the necessity for the electoral body to pre-empt all possible cases of anomaly and act judiciously. Furthermore, owing to the high propensity for further conflict, the verdict on the Kogi election demands prompt and judicious interpretation, with finality, from a superior court. If this means delaying the election, then so be it.

What promised to be a forecast and a preview of the forthcoming Bayelsa governorship election became a debacle, when the INEC returning officer for Kogi State, Professor Emmanuel Kucha declared the election inconclusive, shortly after news of the death of one of the governorship aspirants, Prince Abubakar Audu, was made public.

Audu, who polled 240,867 votes as against the Peoples Democratic Party (PDP) candidate, was leading the poll with a margin of 41,353 votes when INEC made its declaration. According to INEC, though Audu was leading, the winning margin must be in excess of the total number of votes in units where elections were cancelled. Whilst elections were cancelled in 91 units across 18 local governments, where the ballots totalled 49,953, Audu scored 41,353 votes. Judging by the INEC guidelines, Audu must have votes exceeding 49,953 before he can be proclaimed a winner. Therefore, there is need for a supplementary election.

Unfortunately, that decision has provoked conflicting legal pontifications and political interpretations, of which the Attorney General of the Federation and Minister of Justice fired the first salvo by saying that the APC could substitute its candidate in the supplementary election under Section 221 of the Constitution (as amended) and Section 33 of the Electoral Act. According to Malami, Section 221 of the Constitution, which ascribes votes to political parties, and Section 33 of the Electoral Act, which stipulates the right of a political party to substitute its candidate in case of death, empowers the APC to plan a primary to select a substitute for the late Audu.

Ordinarily, the governorship position being a joint ticket of the governorship aspirant and his running mate, it probably would have been appropriate for the APC to declare the running mate of the late Abubakar Audu, as its replacement candidate. But in the absence of a clear legal provision envisaging the death of a candidate in an inconclusive election, it is suggested that concerned parties should seek the court’s view.

Beyond this, the development has thrown up several lessons, chief of which is for INEC and the National Assembly to amend the electoral guidelines and laws, respectively. The electoral body should by now be considering an update of its guidelines to include proper health screening of aspirants, to ensure that they are physically and mentally fit to withstand the rigour of election and political office. The demands of seeking election and running the affairs of state have their toll on the health of the actor. Adequate health screening is required to avert this kind of crisis.

Politically, it should be clear to the actors, particularly Audu’s running mate, that the political configuration of Kogi State, indeed the ethnic divide, reflects fundamental concerns that demand extra-legal counsel.

Ultimately, there is wisdom in INEC and other stakeholders seeking the view of the court, not only to test the legal propriety of this seeming precedent, but also to ascertain the moral value of the court’s decision, and thereby put all aggrieved parties at rest. The situation in Kogi requires political expediency based on equitable, just and fair processes. The initiative to seek legal counsel may come from INEC itself or any of the key actors, none of whom should preempt the outcome, or do anything to undermine the court’s process.

In seeking judicial intervention, regard should be given for accelerated hearing; as well as the exploitation of relevant constitutional provisions to refer fundamental issues of law to the Supreme Court for necessary interpretation. This is important because no pronouncement below the voice of the apex court is likely to provide the desired succour and finality to the crisis.

Every effort should be made by INEC, the Attorney General of the Federation, and the leadership of the two main political parties to resolve the Kogi election crisis quickly, fairly and without rancour. Care must be taken to prevent prolonged litigations and their adverse effects on the country’s democratic process. Above all, all stakeholders must give pre-eminence to Nigeria’s national interest, and to recognition that the country’s democracy is yet evolving.

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