The sudden death of the governorship candidate of the All Progressives Congress, APC in the inconclusive elections, Prince Abubakar Audu in the Kogi State election has created a legal impasse and constitutional void.
The 1999 constitution of Nigerian as amended and the Electoral Act respectively, did not make any provision nor envisaged for the situation at hand, where a candidate of a political party would die in an inconclusive election, whether such candidate was in the lead or not.
This unexpected scenario has thrown up different perspectives most of which are tilted towards the application of ‘doctrine of necessity’, although a phrase of the Supreme Court in resolving constitutional issues not envisaged by the constitution which suddenly arises and, require extra ordinary measures, the concept of doctrine of necessity is stop gap measure rooted more in morality. It was first tested when the late President Umaru Musa Yar’Adua took ill in far away Saudi Arabia without transmitting to the National Assembly and mandating the then Vice President Goodluck Jonathan to perform his functions in his absence, the 6th Senate used this provision.
The situation in Kogi state looks much more complicated because of its very unique nature and totally different from the case of the late President Yar’Adua where the then Vice President only needed the provision to act while the President was away and in any case, the then vice President was in charge of affairs in the absence of the President even without a transmission to the National Assembly, what was playing out was mere politics and unnecessary power tussle.
Some of the unique features of the Kogi logjam includes the fact that the APC governorship candidate died without a mandate in an election he was already in the lead, which the Independent National Electoral Commission, INEC declared as inconclusive due to cancellation of votes in 91 polling stations despite the APC’s clear lead of over 40,000 Votes in more than two thirds of the local governments in Kogi State.
The position of the People’s Democratic Party (PDP) in law is also without a legal standing. where a losing candidate is asking to be declared a winner due to the death of the leading candidate. Both the 1999 constitution as amended as well as the Electoral Act does not in any way whatsoever support the declaration of a candidate who stands a distant second, who did not win up to two thirds of the local governments or states in an inconclusive election where the person and party in a clear lead die in the process. The PDP, “insists that with the unfortunate death of Prince Abubakar Audu, the APC has no valid candidate in the election, leaving INEC with no other lawful option than to declare the PDP candidate, Captain Idris Wada as the winner of the election”. And it has gone to the court to actualize this.
The late candidate’s running mate, James Faleke, wrote to INEC chairman, Prof Mahmood Yakubu on Thursday, asking that he be declared winner of the inconclusive election. In a letter the by his lawyer, Chief Wole Olanipekun (SAN), Faleke said that the only option opened to INEC was to declare him the governor-elect. He said that INEC’s directive to APC to conduct a new primary to select a candidate to replace Audu was “unfounded, both legally and constitutionally. It can also not ne reasonably or rationally defended.” A similar letter was written to the National Chairman of the APC, Chief John Oyegun.
If no acceptable solution is found as soon as possible, it will be a long day in court to resolved the constitutional imbroglio occasioned by the untimely death of APC’s governorship candidate.
