The inconclusive governorship election in Kogi

ON Saturday, 21 November, 2015, governorship election held in Kogi State. Several political parties fielded gubernatorial candidates in the election, with the People’s Democratic Party (PDP), the ruling party, and the All Progressives Congress (APC), being the major participants. At what was thought to be the end of the exercise, the electoral umpire, the Independent National Electoral Commission (INEC) declared the election to be inconclusive by reason of the fact that about 91 polling units, involving about 49,000 voters, would be disenfranchised if the election was declared to be concluded. Prince Abubakar Audu, the APC governorship candidate, was in the lead, with about 41, 000 votes in more than two-thirds of the local governments in the State, thereby fulfilling one of the constitutional requirements for election as governor of a State (section 179 (1) (b) of the 1999 Constitution), and would have been declare elected but for INEC’s declaration of the election as inconclusive. INEC’s decision was based on the fact that the margin of lead votes of 41,000 was less than the 49,000 votes expected from the 91 polling units where a re-run election would be conducted.
As far as we are concerned, the decision of the electoral umpire and its returning officers must be respected. During the election in which he was clearly in the lead, Prince Abubakar Audu, passed on to the eternal consternation of most Nigerians. Prince Audu’s sudden death has raised a lot of statutory and constitutional questions. So many legal luminaries have wrung their hands in utter frustration about the non-inclusion of the death of a candidate during elections in the Constitution or in the Electoral Act, 2010 (as amended). Section 181 of the Constitution is on a situation in which election has been concluded, but, before the governorship candidate can swear to the Oaths of Allegiance and of Office, he dies. Section 36 of the Electoral Act is on a governorship candidate who dies before the commencement of the polls. Has the death of Prince of Audu, therefore, created a constitutional crisis or has it revealed problematic lacunae in our electoral laws?
In our considered opinion, the Electoral Act, 2010 (as amended) in its section 33 provides a solution to the seeming problems posed by the sudden death of a governorship candidate. According to that section, “No political party shall be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of this Act, EXCEPT in the case of death or withdrawal by the candidate.” Analysts have focused on the main clause of the section, neglecting the subordinate and more important phrase: “…EXCPT in the case of death or withdrawal by the candidate.” Re-phrased differently, this provision would read: “Although no party is allowed to change or substitute its candidate after his name and credentials have been sent to INEC, any political party can, however, substitute or change its candidate in the event of death or withdrawal.” In the section quoted above, the operative word is the preposition EXCEPT. A party can only change or substitute its candidate if such candidate dies or withdraws. Quite clearly, the Electoral Act anticipates such a happening as the death of a candidate during an election, contrary to popular opinion.
When any of the canons of statutory interpretation has been used, it will be seen that the APC has the right to substitute the deceased candidate for another candidate. The party can choose the present deputy governor or any other candidate to replace Prince Audu. Neither the Constitution nor the Electoral Act, 2010 compels a political party to replace a deceased candidate with any particular person during an inconclusive election. If INEC had pronounced the election concluded and a winner had emerged, then section 181 of the 1999 Constitution (as amended) would have operated, and the deputy governor would have replaced the deceased governor-elect.
In view of the foregoing analysis, we are persuaded the both INEC and the Hon. Attorney-General and Minister of Justice are right in their judgment. We, however, appeal to INEC to extend the rerun election date from December 5, 2015 to a later date to enable the APC enough time to substitute the deceased candidate.