The Political Impasse in Kogi State and the Legal Way Forward

The 21st of November was not just another day for the people of Kogi state. It was a very important one in which they were to decide the future direction of the state through the ballot. The leading candidates were Idris Wada, the incumbent and PDP candidate, and Abubakar Audu, the APC gubernatorial candidate. When Sunday came, the results were counted with Abubakar Audu leading by 41,353 votes.

However the election was adjudged inconclusive by the Independent National Electoral Commission (INEC) due to the fact that the cancelled votes were 49,953, which was more than the votes by which Abubakar Audu was leading. Shortly after this, it filtered into the news that the leading candidate, Abubakar Audu was dead. Immediately this happened, it didn’t take long to put 2 and 2 together to know that his death at this point was one which carried a lot of significance.

This legal consequence of this impasse has put a lot of legal luminaries to work and I shall also furnish my own humble opinion on the legal issue.

The legal provisions in relation to this kind of scenario are the provisions of SS.33 & 36 of the Electoral Act and S.181 (1) of the Constitution.  The provisions of S.33 of the Electoral Act are as follows:

A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act except in the case of death or withdrawal by the candidate

The provision of S.36 of the Electoral Act is as follows:

If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner or the Resident Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14 days.

On the other end of the spectrum, S.181 (1) of the 1999 Constitution provides:

If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy-Governor shall be sworn in as Governor and he shall nominate a new Deputy-Governor who shall be appointed by the Governor with approval of a simple majority of the House of Assembly of a state.

Of the above three legal provisions, it is my opinion that S.33 of the Electoral Act is the most relevant. S.36 of the Electoral Act cannot be applied here because it clearly relates to a situation before the commencement of the polls.

Also S.181 (1) of the Constitution is out of the picture.  This is due to the fact that its provision applies only in the case of a person who has already been elected as Governor but dies before swearing in. In the Kogi situation, Abubakar Audu has not yet been elected as governor as the elections have been declared inconclusive.

The provision of S.33 of the Electoral Act is a broader one. It summarily grants a political party the power to replace an election candidate if he dies or withdraws from the electoral race. This provision doesn’t specify whether or not it applies before or during the election. The provision cannot apply after the election due to the fact that one of the candidates is already elected. Abubakar Audu is still a candidate in the election and he can be replaced by the party since he is now dead.

In conclusion, in order to prevent further ambiguity and confusion, due to the divergent opinions on this issue, it would be best if the matter is addressed by the court. Thankfully, Governor Idris Wada of the PDP has already instituted a suit in relation to this issue. Also, a human rights lawyer, Ebun-Olu Adegboruwa has dragged the Attorney General and INEC to court on this same issue. It is hoped that the learned Justices would do justice to this issue and calm all frayed nerves.