• As APC shops for replacement
THE leadership of the ruling All Progressives Congress (APC), has commenced moves to replace late Alhaji Abubakar Audu who died on Sunday, even as interest groups have continued to mount pressures for his running mate, Abiodun James Faleke, a lawmaker representing Lagos State in the House of Representatives, to step into the shoes of the deceased.
Audu, a former governor and candidate of the APC in the Saturday, November 21 gubernatorial election in Kogi State, mysteriously passed on moments after the Independent National Electoral Commission (INEC) declared the exercise inconclusive, resulting in what many have described as a constitutional crisis.
Top among those favoured to replace Audu is Alhaji Jibrin Isah, known as Echocho, who recently crossed to the APC after losing the primaries of the Peoples Democratic Party (PDP) to incumbent Governor Idris Wada.
Echocho, interestingly, was Wada’s main rival in the 2011 governorship race and engaged the governor in a long and bitter legal battle that terminated at the Supreme Court. He is very popular among his kinsmen, the Igala.
There were expectations earlier that Alhaji Isah, a former director of a bank, would have crossed to the APC before the primaries, but he shocked many by remaining in the PDP and left only after Wada got the PDP ticket for a second time.
Having crossed to the APC, with the resultant death of Audu, the odds seem to favour him as likely successor even though there are many legal hurdles and entrenched interests still standing in the way.
With Audu’s death, the expectations are that Faleke would automatically step into the position and become the APC candidate in the supplementary election to be conducted by INEC. He, therefore, becomes the challenger to the Kogi State Governor, Captain Idris Wada, the candidate of the PDP.
However, some legal practitioners and other stakeholders have queried the wisdom and legality of asking Faleke to assume Audu’s ticket, pointing out the Constitutional and political limitations and warning that the APC leadership must exercise restraint in making such a move.
The Constitutional questions that need answers are:
1. Will INEC go on to conduct the remaining elections between Late Audu of APC and candidates of other political parties?
2. Will there be need for another primary election to select APC candidate or Audu’s Deputy will carry on as APC candidate to conclude the election?
3. Since Audu has not been duly elected and is no longer a contestant by virtue of his death, will INEC pronounce Wada as the winner being the candidate with the second highest votes cast (runner-up) at the election?
Many questions begging for answers.
However, the APC leaders are said to be disposed to dropping Faleke because of the implications, including the possibility of losing to Wada and the PDP because of the subsisting zoning arrangement in the state.
Audu reportedly emerged candidate of the APC following consensus that the Igala ethnic group should have the governorship ticket to effectively square up with Captain Wada, also from the same zone.
Faleke’s emergence as flagbearer alters the zoning since he’s from the Yoruba (Okun) ethnic group. And there are fears that the supplementary poll may go to PDP since the polling units affected are within Wada’s stronghold.
National Daily learnt that the APC leadership is favourably disposed to choice of a new candidate for the governorship exercise and has started searching for a replacement for the late Audu against a grand plot by the Yoruba to secure the position for Faleke.
But Lagos lawyer and human rights activist, Festus Keyamo, in a statement from London, insists on the proprietary of fielding Faleke, arguing that it is the only way to go in the circumstance. The statement is reproduced below:
Legal implications of Audu Abubakar’s Death — Festus Keyamo, Esq
The reported death today, Sunday, November 22nd, 2015, of the APC candidate in the Kogi State Governorship elections, Prince Abubakar Audu, is extremely shocking and sad. I would like to express my condolences to the entire family of Audu and to the people of Kogi State.
However, the real question agitating the minds of everybody is the legal implication regarding the inconclusive Governorship election at the time of his demise. To state it correctly, he was said to have died after the announcement of the results by INEC and after INEC had declared the elections inconclusive. Admittedly, this is a strange and novel constitutional scenario. It has never happened in our constitutional history to the extent that when an election has been partially conducted (and not before or after the elections) a candidate dies. What then happens?
This is a hybrid situation between what happened in the case of Atiku Abubakar/Boni Haruna in 1999 and the provision of section 33 of the Electoral Act, 2010.
In the case of Atiku Abubakar/Boni Haruna [which is now a clear constitutional provision of section 181(1) of the 1999 Constitution (as amended)] the Supreme Court held, in effect, that “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”.
In the case of section 33 of the Electoral Act 2010, it provides, in effect, that if a person has been duly nominated as a candidate of his party and he dies before the election then the political party has the right to replace him with another candidate and not necessarily the Deputy Governorship candidate.
Now, does the Kogi situation fit into section 181(1) of the Constitution as quoted above or section 33 of the Electoral Act mentioned above?
My simple position is that the Kogi situation fits more into section 181(1) of the 1999 Constitution (as amended) and as such James Abiodun Faleke, automatically, becomes the governorship candidate of the APC. This is because even though the election in inconclusive, votes have been counted and allocated to Parties and candidates. As a result, the joint ticket of Audu/Faleke has acquired some votes already. James Abiodun Faleke is as much entitled to those votes already counted as much as the late Abubakar Audu. He has a right to cling to those votes going into the supplementary election.
There is only one problem, though. Who nominates Faleke’s Deputy? Unlike section 181(1) of the 1999 Constitution, he cannot approach the House of Assembly of the State to approve a nomination by him of a Deputy. This is because, in reality, he is not duly elected yet. Therefore, it is only reasonable to conclude that it is APC (Faleke’s political party) that should submit the name of a fresh Deputy Governorship candidate to INEC for the supplementary election.
This is the only position in this situation that accords with reason and good sense.
Section 181(1) of the 1999 Constitution provides:
“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”.
In this scenario, Audu has not been duly elected as Governor because the election result in Kogi State was declared inconclusive by INEC.