To his teeming and ardent supporters, the late Prince Abubakar Audu, the governorship candidate of the All Progressives Congress (APC) in last Saturday’s governorship election in Kogi State was great in life. His no less enthusiastic traducers would insist that the controversial politician remained unacceptably haughty and imperious till the very end. Today, however, both his admirers and sworn adversaries speak approvingly of Audu. Despite the painful circumstances of his transition on the cusp of a long desired and much deserved electoral glory, death may have been kind toAudu after all. The grim reaper has drastically changed the narrative of the Igala prince’s epochal political adventures this side of eternity. He is turning out to be surpassingly greater in death, at least in popular perception, than he was in life.
Audu will now be remembered by posterity for his landmark achievements as a performing governor of Kogi State who set a standard in infrastructure development that no other occupant of the state’s apex political office had been able to equal. His name will evoke memories of a dogged and tireless fighter for his political objective who, in the process, contributed his quota to the country’s political development. He does not now need the second chance in office he so earnestly yearned for to either validate his credentials as a visionary and effective leader or to exhibit his promised new humility and modesty in office. By the unexpected and unanticipated manner of his exit, Audu’sis also set to help significantly to deepen the constitutional basis of Nigeria’s electoral process as indicated by the legal fireworks provoked by his demise.
Yes, brilliant but unscrupulous and mischievous lawyers may cynically manipulate the interpretation of the law to serve partisan ends. This is inevitable given the high premium placed on political office as a means of primitive accumulation in Nigeria. The important thing is that, no matter how untidy, distracting and time consuming they may appear, incessant and interminable legal squabbles only indicate how critical the law is to Nigeria’s evolution on the path of sustainable democracy. It is thus only natural that the struggle over the interpretation of the electoral laws will not only be as fierce as but intricately interwoven with partisan tussles for power.
Ever since Audu’s demise, there have been divergent opinions on the way forward towards legally consummating Kogi’s rudely interrupted electoral process. The most learned Senior Advocates have expressed impressive but diametrically opposed views on the matter. Was the Independent National Electoral Commission (INEC) right in declaring the election inconclusive on the basis of cancelled votes in 91 units across 18 local government areas of the state and thus scheduling supplementary elections in the affected areas for next Saturday?
I must confess that as a layman, my initial impression was that INEC’s action was in consonance with the stipulations of the Electoral Act. Yes, the APC scored 240,867 votes to the PDP’s 199, 514. The difference between the two parties is over 40,000 votes. Although the total number of cancelled votes in the 91 units is 49,000, those with Permanent Voters Cards (PVCs) and those eligible to vote are reportedly less than 30,000. On the face of it, a supplementary election appears pointless since the APC has an irreversible lead even if all outstanding eligible votes are cast for the PDP. However, if the Electoral Act refers to total registered voters and not voters with Permanent Voters Cards as some have argued, INEC’s decision is, in my view, legally impregnable.
Chief Olanipekun continues: “With further respect to INEC, cancellation of election results by it cannot be grounds for declaring any election as inconclusive. INEC is enjoined to declare a winner of an election based on lawful votes cast. Thus, the cancelled results by INEC, for whatever reasons, and assuming without conceding that INEC could legitimately cancel such results, amount to unlawful votes. In effect, INEC cannot declare a well conducted election as inconclusive based on unlawful votes”.
This reasoning is in my view clinical, precise and surgical. The elections have been held, votes counted and results announced by the Returning Officer. The APC scored not just the highest number of votes cast in the election, the party also satisfied the spread of scoring no less than 25% of votes cast in each of at least two-thirds of Local Government Areas in the state. It has met the constitutionally stipulated criteria for victory. INEC’s declaration of the election as inconclusive on the basis of unlawful and thus cancelled votes amounts to an annulment of the lawful votes cast.
The APC leadership is reportedly preparing for fresh primaries to pick a substitute for the late Audu to fly the party’s flag in the planned supplementary election. Now, there appears to be a fundamental contradiction here. The very idea of supplementary elections rather than fresh overall elections assumes the validity of all other results declared in last Saturday’s Kogi polls. But fresh primaries by the APC imply the expiry of the validity of the ticket, which the party presented to contest the election.
Theoretically, therefore, the APC is free to present a candidate that participated neither in the previous primaries nor even in the general election for the supplementary polls. This implies that the party is free to present Faleke as its governorship candidate in place of the late Audu, retain him as running mate to a new candidate or even exclude him altogether from the new ticket. In reality the party, in my view, enjoys no such liberty. It may be heading for a legal quagmire of immense proportions.
Some have cited legal precedents which indicate that, going by Nigeria’s electoral laws, it is parties and not individuals that contest elections. The constitution makes no allowance for independent candidates. As a result, the votes cast in last Saturday’s Kogi elections, according to this school of thought, accrue to the APC and not necessarily the candidates it presented to the electorate. This view is, I believe, ultimately unsustainable.
The candidates presented by the APC were eligible to contest the general election because they emerged through intra-party electoral processes stipulated by the constitution. There is a clear and unbreakable link between the primaries that produced the AbubakarAudu/ James Faleke ticket and the legality, credibility and integrity of the APC’s participation in the election. By conducting fresh primaries, the APC will be delinking itself as a party from the primaries that made possible and legal its participation in the Kogi governorship polls and thus creating the basis for a valid legal challenge of the polls in its entirety.
On its part, the PDP submits that its candidate, Governor Idris Wada, should be declared automatic winner of the election following Audu’s death. According to the party “What if AbubakarAudu had finished voting and then announced his voluntary withdrawal from the election…If AbubakarAudu had withdrawn on Saturday, the election would have continued and Wada would have been declared winner”. The PDP states further that “With the unfortunate death of Prince AbubakarAudu, the APC has no valid candidate in the election leaving INEC with no other lawful option than to declare the PDP candidate, Idris Wada, as winner of the election”.
By this submission, the PDP admits that the votes cast in last Saturday’s polls were valid and cannot be annulled. It is on the basis of those votes that it is asking that Wada be declared winner in the absence of the late Audu. There is therefore no basis for calling for fresh elections. But the PDP discounts the critical fact that the APC did not present just a candidate for the election but a joint ticket made up of Audu and Faleke. All the votes accruing to the APC were cast jointly for Audu and Faleke. In the same way, all the votes scored by the PDP were cast jointly for Wada and his running mate. The vacuum that the PDP believes Audu’s death creates thus exists only in its imagination.
The APC is contemplating fresh primaries and the PDP advocating that Wada be declared winner of the election because both parties ignore the critical Faleke factor. Faleke remains the only legal link between the APC and the party’s victory in the Kogi polls. If both Audu and Faleke were no longer available for any reason after last Saturday’s polls, there would have been no choice but to hold fresh elections in Kogi.For as long as Faleke is alive and willing to exercise the mandate so clearly and freely given the Audu/Faleke APC ticket by the electorate, there can be no annulling the Kogi polls.
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