Senior Advocates of Nigeria (SANs) yesterday held divergent views after the Independent National Electoral (INEC) asked the All Progressives Congress (APC) to replace the late Prince Abubakar Audu with another candidate of its choice in order to conclude the supplementary election.
In statement by the Secretary to the Commission, Mrs. Augusta C. Ogakwu, INEC announced December 5 as the date for the supplementary election.
But INEC’s decision, allowing APC to fill the vacuum created by Prince Audu’s death generated controversy among laywers.
Two SANs – Prof Gabriel Olawoyin and Mike Ozekhome disagreed with the electoral umpire. But the trio of Prof Itsay Sagay, Rotimi Akeredolu and Mahmoud Magaji – all senior advocates – backed INEC.
Prof Olawoyin said INEC’s statement would give rise to a lot of controversies because the legal issues were so complex and cannot be so easily resolved.
His words: “It is a constitutional matter and the best option would have been to take it to court in line with Section 295 of the Constitution for the court to arrive at a decision.
“I’d have preferred a situation in which the matter is referred to court for resolution of the legal logjam. The legal arguments on both sides are very strong and should have been subjected to judicial interpretation.”
Ozekhome, who agreed the APC has a right to present another candidate faulted INEC’s decision to go ahead with the supplementary election.
“The reason is that my good friend Prince Audu died before he was confirmed governor, which means the mandate had not been given. If he had died after he was confirmed governor, the provision of Section 181 (1) and (2) would have played out,” Ozekhome said.
According to him, the scenario was neither the same as contemplated by Section 181, nor was it similar to the Adamawa case after Atiku Abubakar had to be replaced with his running mate, Boni Haruna.
He said: “What ought to happen in this case should be the conduct of a fresh election between Idris Wada and a new candidate from the APC, but not a supplementary election.”
A supplementary poll, he said, became null and void with Audu’s death as he was to partake in it.
His words: “The problem APC may run into, and they have to be very careful, is that they would have to contend with the provisions of Section 179 (2) of the Constitution, as well as sections 31, 33, 53 (2) (3), 85 (1), 87 (1) and 141 of the Electoral Act, all of which show that the candidate they put forward must have passed through the various stages including emerging from valid primaries.
“That is where I believe their best option is to go into the pool of those who contested the primaries and lost to Audu and pick a candidate from there to face Wada, as such a person would have gone through various electoral stages.
“If they pick Falake, I can see the PDP challenging them in court that it has not fulfilled Section 85, 87 and 141 of the Electoral Act,” he said.
Professor of Law, Itsey Sagay, yesterday hailed the decision of the Independent National Electoral Commission (INEC) to proceed with the governorship election in Kogi State which the umpired declared inconclusive on Sunday.
He said such step remains the only logical solution to the confusion created by the death of the All Progressives Congress (APC) candidate, Abubakar Audu, who scored 240, 867 votes to lead incumbent Governor Idris Wada of the Peoples Democratic Party (PDP), who polled 199, 514.
Prof Sagay pitched tent with those suggesting that Audu’s running mate, James Faleke, should step in to carry the party’s flag at the supplementary election.
He said: “With the passing away of Abubakar Audu, the only logical and solution closest to the law on ground now is to allow his running mate to step into his shoes for the supplementary election.
“We already have that in the constitution with regards to somebody who has won an election but died and is unable to assume office for any reason.”
Giving explanation on constitutional provisions on the matter, Sagay referred to Section 181 (1) of the Constitution which states that “where there is a governorship election and the victorious candidate dies before he is sworn in, his deputy or running mate shall be sworn in as governor.”
“In this case, there is nobody elected as governor. But the election has been held, leaving only supplementary election to be done and the candidate of one of the political parties died, by analogy, I think that provision in Section 181 (1 ) shall apply so that the deputy governorship candidate should now be regarded as the governorship candidate for the purposes of the supplementary election.”
Akeredolu, who was a former Nigerian Bar Association (NBA) President, said INEC’s decision was in line with the law.
He said: “INEC took the right decision. This cannot be faulted having regards to the state of the law. “The commission has taken the position that the death of the candidate can be likened to the death of a candidate before the commencement of the election. The death in this instance occurred before the election was concluded.
“The election remains inconclusive and the APC has the right in law to produce a replacement. I expressed this opinion from the onset. The decision of INEC is in line with my position.”
Magaji said INEC cannot be faulted. “The provision of Section 178 (3) of the Constitution is very clear that where a candidate nominated for an election is incapable of contesting the election, a political party shall be given an opportunity to present another candidate.
“This is what has happened in this case. Section 33 of the Electoral Act says they can present another candidate to replace Audu, so INEC is within the law.”