Kogi legal impasse: An alternative view By HUSSEIN AFOLABI

I was deeply saddened by the news of the passing away of the candidate of the APC in the Kogi State gubernatorial poll, Prince Abubakar Audu. My heartfelt condolences to his entire family and the people of Kogi State. His demise is not only shocking and sad, it has also created a legal problem for the Independent National Electoral Commission as regards the inconclusive election as of the time of his death.

A lot has been said by different experts, and different positions canvassed by different lawyers on this issue. However, suffice it to say that only INEC is statutorily empowered to chart a course on how to move forward in the election, to which a supplementary election has been ordered. Although INEC should expect to have its decision on this issue tested through the fires of litigation.

While some have argued for a fresh election to be held, some argue that Audu’s running mate (James Faleke) can simply take his place and run the supplementary election after all, it’s an Audu/Faleke ticket. It’s important to note that none of these arguments is premised on a statutory provision, and none of these arguments has a legal backing.

It’s important to note that Section 181 CFRN is not applicable in this instance, likewise Section 36 of the Electoral Act, 2010. The Atiku Abubakar case is also not on all fours with the instant situation. Section 181 CFRN talks about a person who has been duly elected into the office of a Governor. If such a person dies, his deputy-elect takes his place as the governor-elect. Section 36 of the Electoral Act, 2010 talks about the death a candidate before the polls. In such situations, INEC would revoke the election and fix a new date within 14 days. In the Abubakar case, he had already been elected as the Governor of Adamawa State before Chief Olusegun Obasanjo picked him as his running mate in the presidential poll. The Supreme Court held that his “deputy-elect” could take over. That’s a very clear case where Section 181 CFRN applies.

Back to the instant scenario. I beg to differ from the perspectives of some legal giants who had argued that a fresh election be called by INEC in the light of the present circumstances. To call a fresh election, INEC must have invalidated the present election. And you simply cannot invalidate an ongoing election because one of the contestants died. What happens if any of the other candidates dies before the conclusion of the fresh election? INEC simply cancels again and orders for another fresh election?

The second perspective is that INEC continues the supplementary election with Faleke stepping in as the APC governorship candidate in order to conclude the ongoing election. This position seems very compassionate, but it’s far from reasonable. INEC cannot take a stand that will run foul of, or undermine the law, especially the CFRN and the Electoral Act, 2010.

Section 31(1) & (2) of the Electoral Act, 2010 provides that a political party submits to INEC, within a stipulated period, a list of the candidates the party proposes to sponsor at the elections accompanied by a Sworn Affidavit by the candidate at the High Court of a state, indicating that he has fulfilled all the constitutional requirements for election into that office.

Section 87 (1) – (4) of the Electoral Act, 2010 provides that a political party seeking to nominate candidates for elections under the Act shall hold primaries for aspirants to all elective positions. The section goes on to state in details how primaries are to be conducted.

Section 141 of the Electoral Act, 2010 provides that an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.

PUNCH

CLICK HERE TO SIGNUP FOR NEWS & ANALYSIS EMAIL NOTIFICATION