Legal Implications Of Audu’s Death By Barrister Festus
Keyamo, Says This Is A Strange Scenario
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
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
This is the only position in this situation that accords with reason and good
FESTUS KEYAMO, ESQ.
Sunday, November 22, 2015.