Initially, the political bird of Yahaya Bello, recently sworn in as Kogi State Governor, took off with one wing. James Faleke, who the All Progressives Congress designated as his Deputy Governor, declined, and didn’t show up for the swearing-in. He had sent a petition to the election tribunal to declare him governor instead.
Muiz Banire, the APC National Legal Adviser, says though the law requires a governorship candidate to contest with a running mate, it does not insist that he must be sworn into office with a Deputy Governor. Bello, resting on Section 186 of the Constitution, has now applied to the Kogi State House of Assembly that Simon Achonu be confirmed as his deputy. Don’t you think the law is an ass?
Abubakar Audu, to whom Faleke was the running mate, died on Sunday, November 22, 2015, just as the Independent National Electoral Commission was announcing that the Kogi State Governorship election was inconclusive. The Audu-Faleke ticket won 240,867 votes, and incumbent Governor Idris Wada won 199,514, a difference of 41,353 votes.
Faleke, and his sympathisers, thought he should have inherited the votes that he won jointly with Audu, pick a running mate, and contest as governor in the supplementary election. The Nigerian constitution does not expressly provide how to handle a situation where a candidate dies after his election was declared inconclusive even if he was leading with the number of votes already cast.
Section 180(1) of the constitution declares: “If a person duly elected as Governor dies before taking and subscribing (to) the Oath of Allegiance and Oath of Office, or is unable for any reason to be sworn in, the person elected with him as Deputy Governor shall be sworn in as Governor….”
Audu was never declared winner, but Section 187(1) of the Constitution provides that “… a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of the Governor, who is to occupy the office of the Deputy Governor.”
The provision continues: “And that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.” This compels the assumption that votes obtained by the Audu-Faleke ticket should speak for Faleke. Not so?
Section 33 of the Electoral Act 2010 declares that “A political party shall not be allowed to change or substitute its candidate whose name has been submitted… except in the case of death or withdrawal by the candidate.” Section 35 of the same Act says, “A candidate may withdraw his candidature by notice in writing, signed by him, and delivered by himself, to the political party that nominated him for the election and the political party shall convey such withdrawal to the (INEC) not later than 45 days to the election.”
Some argue that Faleke probably shot himself in the foot, and handed the APC a fait accompli, if he indeed wrote, and INEC acknowledged receipt of, his notice of withdrawal as Bello’s running mate. He needed to remain on that ticket somehow, they argue. Others counter that if his nomination as candidate for Deputy Governor was in compliance with the Constitution, he should stand down, and refuse to be a running mate in an election that is supplementary to the one he jointly ran with his principal.
They allude to the case of Rotimi Amaechi, whom the courts “made” Governor of Rivers State, because he won the party primaries, even though his Peoples Democratic Party presented, for the election, a candidate who lost the primaries. If Bello lost the primaries to Audu, Faleke’s running mate, Faleke enthusiasts think that Faleke should inherit the 240,867 votes!
They aver that because the constitution never envisaged the death of a governorship candidate whose election was declared inconclusive, the constitutional deus ex machine, “doctrine of necessity,” should be applied, to serve the cause of fairness. For a lay man, that is about the size of it.
Anyway, semantics won. The Attorney General of the Federation gave a bald interpretation of Section 33 of the Electoral Act, and was silent on Section 35. The APC upheld his opinion, and substituted Bello, who lost the party primaries to Audu, and was not on the original ticket. Those with ability for extrapolation thought Faleke ought to have been presented as candidate for governor.
Had the election been conclusive in the first round, and Audu died later, Faleke would have been governor without any controversy. As musician Fela Anikulapo-Kuti would ask, “Which kind injustice be this?” And as someone has famously said, “There is God o!” The PDP is now “ribbing” Bello with the taunt that he has become governor after scoring only 6,885 additional votes in the supplementary election to make the total APC vote tally 247,752.
If not for “government magic,” how could Faleke, who jointly scored 240,867 votes with the late Audu, be schemed out of the deck of cards? This is even more telling when you recall that Faleke’s prayer for a Federal High Court to intervene was turned down on the grounds that the court had no jurisdiction to grant such relief.
Faleke, now a political orphan, has approached the election petitions tribunal for redress. But maybe the Kogi State electorate, civil society groups, Nigerian Bar Association, and other political parties should make it a political issue, if the constitution will not provide refuge for Faleke. The United Nations could also weigh in by insisting that Kogi State should not participate in its Sustainable Development Goals programmes, until the “wrong” against Faleke is righted. This is clearly a political issue.
All it takes for society to fall to tyranny is for good people to refuse to speak up. To check a possible spree of the APC impunity, other members of the Conference of Nigerian Political Parties should coalesce into a formidable political party, sturdy enough to check increasing APC excesses. The PDP is weak-kneed.
A dangerous trend is unfolding by the bungling of elections, misreading of the constitution and the Electoral Act by INEC, dangerous misuse of political power by political party leaders, and the compelling need for losers to have to approach the judicial bench for redress. The electoral tribunals, Nigeria’s equivalent of constitutional courts, are gradually performing the duties of INEC.
By substituting the will of the people with the rulings of the courts, the Nigerian system is unwittingly confirming the claims of Grotius: “A people can give themselves to a king,” or the judiciary, in this case. The Economist magazine once observed, “In an age when all political authority is supposed to derive from voters… the growing power of judges is a startling development.” It is unacceptable.
The people, not the courts, should choose those who will exercise power on their behalf. And by unwittingly vacating its electoral responsibilities to the judiciary, INEC is increasingly undermining democracy. An added drawback of “election by the bench” is that aggrieved election contestants who cannot afford huge legal fees will not get justice, and those who voted for them will lose their voice. This is tragic.
NATION
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