Prof. Itse Sagay (SAN) tells TOBI AWORINDE that the All Progressives Congress’ deputy governorship candidate, James Faleke, should replace the late Abubakar Audu in the run-off
Why do you support the decision of the Independent National Electoral Commission to conduct a supplementary governorship election in Kogi State?
It is because the election has already been held. It is a waste of time, resources and the efforts and energy of the people to go back and take part in an election in which they have already voted. Therefore, only those who have not voted and have been deprived of voting should vote. That is what we have been saying — Section 181 of the constitution already shows that once an election has been conducted and the results show that there is a leader, if the person dies, then the running mate should take his place; even though in this case the results have been declared inconclusive. Those are the two legs of my argument: You do not repeat an election that has been concluded and whose results have already been written down. In essence, it is only those that have not voted who will now vote. And as to who will be the candidate of the All Progressives Congress, it has to be the person who was the running mate of the person who passed away. These are the two things to consider.
No, because Faleke is an APC man. If the party decides that it wants to conduct another primary, that is their problem, and I use the word ‘problem’ advisedly because they are creating an unnecessary problem for themselves. They already have two candidates — the running mate who is surviving is a candidate and all they need to do is to pick someone else from the same senatorial district as the deceased that will be the running mate of Faleke. I don’t know why people avoid simple things and then go and complicate life for themselves. I don’t understand. While I would not advise Faleke to go to court, I think the decision belongs to the party and if they want him to retain his deputy governorship candidature, he should allow them without making any problem. But I think it would be a mistake on their (APC’s) part.
Is it true that Section 181 of the constitution only applies to a governor-elect that has been declared by INEC, as some have argued?
We can’t call him a governor-elect. He is not yet a governor-elect. A governor-elect is a candidate who has won an election and whose results have been declared. What I am saying is that what we have now is the nearest thing to that. Election has also been held. The only difference here is that it was stated to be inconclusive in the case that some people were deprived of the opportunity to vote; a small number of people of about 40,000, whereas what we have already are almost 400,000 votes. Looking at the provision in Section 181, it is very similar. Therefore, by analogy, we can apply that provision.
There are some opposed to the decision for the APC to conduct a primary with the argument that if the result of the November 21 governorship election was declared inconclusive, then a fresh election should be conducted. What is your response to that?
For me, the question of a new election is totally ruled out. Only a person who is speaking in bad faith would talk of a new election. Election has been held. It is those who lost that election who want that election to be repeated perpetually till they win; those are the people who would make such ‘bad-faith’ suggestions. For me, any other (new) election is out of the question. Election has been held; only those who have not had the opportunity to vote should vote. And I think the PDP should now learn to abide by election results.
Do you agree with the argument that, in accordance with the provisions of the constitution and the Electoral Act, it would be unlawful for the APC to select someone like Faleke, who did not participate in the party’s original primary, to represent it as a governorship candidate in the supplementary election?
They can pick anybody from among those who have taken part in that primary, but it has absolutely no legal relevance, the fact that he takes part in a primary. He is not better than any person who has not taken part in a primary. Maybe for emotional or psychological reasons, they may make that suggestion, but there is no legal significance in that suggestion.
Do you think it would have been better if this matter was taken to court for a clear and objective interpretation?
I have already told you my way out of the whole scenario, which is that we should let the running mate become the governorship candidate and then let somebody be picked from (Audu’s) senatorial district as his deputy governorship candidate. But as you know, in Nigeria we like going to court a lot. I have no doubt that somebody is going to go to court and for selfish reasons. Maybe the loser will want to go to court or the party of the loser may want to go to court to look for a second chance; to have a second election after they have lost. They would want to have election perpetually until a particular person wins. In essence, somebody is likely to go to court and, if that happens, at the end of the day, the judicial decision that is taken at the Supreme Court level will lay down the precedent which we shall follow in future. But then, if I were the one to take a decision, I would simply say, ‘Let the deputy governorship candidate become the (governorship) candidate and let someone be selected from the senatorial district of the former candidate as his deputy.’
Do you think it is necessary to amend the constitution at all, given the legal conundrum that has arisen as a result of Audu’s ill-timed death?
No, I don’t think so at all. Look at what has happened; it is a freak accident. The constitution already provides for a situation in which, if after an election a candidate who won dies, then his deputy steps into his shoes. That is what Section 181 says. There was an election, no winner was announced because there is to be a run-off and within that short period, a candidate dies. Which type of law can anticipate every situation? If we had a country in which people acted in good faith, in which there was a certain level of rational and reasonable mentality, this thing shouldn’t create a problem because no law can create a rule for every situation. I don’t think we need any new law about this; we should accept any legal rule that fills that gap if it is necessary.
After comparing the margin between the two leading candidates with the number of remaining voters in the areas where the supplementary election will be conducted, the APC says the result should not have been declared inconclusive at all. What do you think?
I’ve heard that and if the facts stated to that effect are correct, then the APC is right because I am told that only 25,000 people of those who have not voted have Permanent Voter Cards. Even if we have a supplementary election, only those 25,000 will be able to vote. What is the point of the supplementary election when, already, the APC is leading with 41,000 votes? In essence, even if all the 25,000 votes are cast in favour of the PDP, it will not catch up. If that is the case, it was a major constitutional error on the part of INEC to have declared the election inconclusive.
What do you then propose the INEC should do at this point in order not to waste time and public fund?
That is why I say the election has been held. We can’t be wasting money repeating what has already been done. Let the supplementary election be held in the units were elections did not take place and then the total results announced immediately after that.
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