Human rights activist,
Barrister Festus Keyamo has spoken on the legal implications and constitutional
angles of the sudden death of the guber candidate of the APC in Kogi State,
Prince Abubakar Audu.
The statement which was
sent to us from the UK where the lawyer is on vacation reads thus:
The reported death
today, Sunday, November 22nd, 2015, of the APC candidate in the Kogi
State Governorship elections, Prince Abubakar Audu, is
extremely shocking and sad. I would like to express my condolences to the
entire family of Audu and to the people of Kogi State.
However, the real
question agitating the minds of everybody is the legal implication regarding
the inconclusive Governorship elections at the time of his demise. To state it
correctly he was said to have died AFTER the announcement of
the results by INEC and after INEC had declared the elections inconclusive.
Admittedly, this is a strange and novel constitutional scenario. It has never
happened in our constitutional history to the extent that when an election has
been partially conducted (and not before or after the elections) a candidate
dies. What then happens?
This is a hybrid
situation between what happened in the case of Atiku Abubakar/Boni
Haruna in 1999 and the provision of section 33 of the Electoral Act, 2010.
In the case of Atiku
Abubakar/Boni Haruna [which is now a clear constitutional provision of section
181(1) of the 1999 Constitution (as amended)] the Supreme Court held, in
effect, that “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 the approval of a
simple majority of the house of Assembly of the State”.
In the case of section
33 of the Electoral Act 2010 it provides, in effect, that if a person has been
duly nominated as a candidate of his party and he dies before the election then
the political party has the right to replace him with another candidate and not
necessarily the Deputy Governorship candidate.
Now, does the Kogi
situation fit into section 181(1) of the Constitution as quoted above or
section 33 of the Electoral Act mentioned above?
My simple position is
that the Kogi situation fits more into section 181(1) of the 1999 Constitution
(as amended) and as such James Abiodun Faleke automatically becomes the
governorship candidate of the APC. This is because even though the election in
inconclusive, votes have been counted and allocated to Parties and candidates.
As a result the joint ticket of Audu/Faleke has acquired some votes already.
James Abiodun Faleke is as much entitled to those votes already counted as much
as the late Abubakar Audu. He has a right to cling to those votes going into
the supplementary election.
There is only one
problem, though. Who nominates Faleke’s Deputy? Unlike section 181(1) of the
1999 Constitution, he cannot approach the House of Assembly of the State to
approve a nomination by him of a Deputy. This is because, in reality, he is not
duly elected yet. Therefore it is only reasonable to conclude that it is APC
(Faleke’s political party) that should submit the name of a fresh Deputy
Governorship candidate to INEC for the supplementary election.
This is the only position
in this situation that accords with reason and good sense.
FESTUS KEYAMO, ESQ.
London, 9:40pm
Sunday, November 22,
2015.
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