Kogi scenario: AGF should head to Supreme Court

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News Analysis by Innocent Anaba, Head, Judiciary, Law and Human Rights
LAGOS—The death of the Kogi State governorship candidate of the All Progressives Congress, APC,  Abubakar Audu, weekend, has brought to fore the need for drafters of the country’s constitution and Electoral Act to be more forward looking in preparing those documents to ensure that all scenarios are captured in the documents.

Today, the Electoral Act only provides that in case a candidate dies before an election, the Independent National Electoral Commission, INEC, is mandatorily required to postpone the poll.

It stated in section 36 “(1): “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.”

But no provision was made for a situation, where a candidate dies during election like what has happened in Kogi State. The Electoral Act and constitution did not give the electoral body the power to pursue a specific line of action in this kind of situation, particularly where an election is inconclusive as it is in Kogi State today.

It will be recalled that INEC had declared the Kogi gubernatorial election inconclusive following the cancellation of the results of the poll in 59 polling units from 18 of the 21 local government areas of the state.

Announcing the decision on Sunday in Lokoja, the state capital, the Returning Officer for the election, Prof. Emmanuel Kucha, said the cancellation of 49,453 votes in 18 local government areas.

The issues that arose from of the Kogi scenario include, should the electoral body substitute the governorship candidate with his deputy, who only emerged a deputy by being selected by the gubernatorial candidate?

It must be remembered that the deputy did not emerge the candidate of the party and his ascending to the substantive position of governor is only when he has been sworn-in alongside the governor and death comes knocking or the governor is incapacitated, as provided by section 181 of the constitution, which provides: (1)   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.”

Interestingly, the Kogi election was declared inconclusive before Abubakar Audu’s death, as no winner was announced by INEC.

So, what should INEC do?

The quickest and perhaps the most viable, which will placate any form of protest and to serve as a precedence is for the Attorney General of the Federation and Minister of Justice, to approach the Supreme Court straight away with an application for the interpretation of the constitution, so that the apex court can clear the coast on what should be done in the immediate, whether a fresh election should be held in the state or the APC deputy candidate should stand in place for  Abubakar Audu or proffer the way forward in the interim.

Then afterwards, the National Assembly should amend the Electoral Act on what should happen, since amending the constitution is far more problematic given the processes that must be followed.

Also, to ensure that all scenarios are captured in the Electoral Act, so that we are not left gasping again, when some other thing happens in the course of election, the Federal Government, should also propose an amendment of the Act, which can be presented as an executive bill to the National Assembly proposing the required amendments to the Act.

The makers of our laws must start being broad and forward looking and make laws that will stand the test of time, so that we don’t repeat the Rotimi Amaechi’s case against Celestine Omahia, which the apex court after adjusting warned should not be cited as precedent.

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