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1. The death of the All Progressive Congress flag bearer at the governorship election conducted in Kogi State on 22nd November, 2015 after having polled the highest votes scored has continued to generate ripples and comments varying from the most simple to the most bizarre. I intend to add my voice and state most emphatically that the situation in Kogi State is not in any way novel.
2. The Grundnorm, the 1999 Constitution can never be a perfect document as no Constitution in the World is. It is however pertinent to note that basic and fundamental provisions of the said Constitution stipulates the parameters to be adopted by the Independent National Electoral Commission in a determination of the person to be returned and declared winner in a Governorship election. The applicable law where two or more candidates aspire to the office of Governor is Section 179(2) and (3) of the Nigerian Constitution.
3. Section 179(2) of the 1999 Constitution of the Federal Republic of Nigeria provides that a candidate shall be deemed to have been duly elected where he has the highest number of votes cast in an election and has not less than ¼ of all the votes cast in each of at least 2/3 of all the Local Government Areas in the State. This is the only parameter for determining the person duly elected as Governor in an election conducted in Nigeria. Where the Independent National Electoral Commission seeks to add to the provision of Section 179(2), it must show that it has derived such legislative authority to so do from the Constitution (See INEC v. Musa).
4. The question will thus be whether the All Progressive Congress garnered sufficient votes to meet the constitutional provisions in section 179(2) of the Constitution. It is worthy to note that at the said governorship election, the All Progressive Congress led in 16 Local Government Areas and polled a total vote of 240,867. The Peoples Democratic Party on the other hand won in 5 Local Government Areas and polled 199,514 of the votes cast.
5. It is clear from the foregoing that the All Progressive Congress scored the highest number of votes cast at the election thus it met the requirement provided for at Section 179(2)(a) of the 1999 Constitution.
6. Furthermore, 2/3 of 21 Local Government Areas in Kogi State will be 14 Local Government Areas. Having won in 16 Local Government Areas of the total number of Local Government Areas in Kogi State, the All Progressive Congress met the requirement provided for at Section 179(2)(b) of the 1999 Constitution.
7. What is explicit from the foregoing is that rather than expand the requirement provided for by the Constitution by a mere administrative manual (which resulted in the declaration of the election being inconclusive), the Independent National Electoral Commission ought to have returned and declared the candidates of the All Progressive Congress the late Prince Abubakar Audu and Prince James Abiodun Faleke as being duly elected as Governor-elect and Deputy-Governor-elect.
8. If the above had been the circumstance, the provisions of Section 181(1) of the 1999 Constitution will come into play and Price James Abiodun Faleke would have stepped into the shoes of Prince Abubakar Audu. This has however been frustrated by the Independent National Electoral Commission by declaring the said election inconclusive. This may however be reversed by a competent court seised with requisite jurisdiction as it is firmly believed that the supposedly unbiased umpire had overshot the limits of its constitutional powers.
9. It is stated clearly herein that the Independent National Electoral Commission cannot go out of the provisions of Section 179(2) by enlarging same in its Guideline to place encumbrance in the way of the All Progressive Congress. The electoral umpire cannot be said to have derived the power to include paragraph 4 of its Guideline from the Constitution. It thus acted ultra vires (that is, beyond its constitutional powers).
10. What is more, it has been alleged that the 91 polling units where the electoral umpire intends to conduct a supplementary election had about 49,000 registered voters but only 25,000 voters with the permanent voters’ card. If this is the case, then it may be said that the Independent National Electoral Commission acted with utmost insincerity and malicious intent against the wishes of the majority of the electorate in Kogi State as demonstrated through the ballot box on Saturday, the 21st day of November, 2015.
11. My candid opinion however is that rather than yield itself to the trap set out for it, the All Progressive Congress should proceed to Court to ensure a valid return and declaration of its candidates (now Prince James Abiodun Faleke) as duly elected Governor of Kogi State.
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There Can be no Valid Supplementary Election in Kogi State
1. The Independent National Electoral Commission has by a Public Notice indicated its intention to conduct supplementary election into the Office of Governor of Kogi State. My candid advice is that aspirants should be wary of such election. I will state the legal reason for this without further delay.
2. In the INEC v. PDP, the Supreme Court eloquently identified three stages or phases in the process of contesting election to become a Governor or Deputy Governor. The said stages or phases include:
i. The first stage is before and up to the holding of election. During this period, if the gubernatorial candidate dies or withdraws from the election or is permanently incapacitated, there has to be a fresh nomination of both a gubernatorial candidate and his running mate because the latter gets disqualified by reason of death, withdrawal or incapacity.
3. If indeed, the Independent National Electoral Commission is right and the said election is inconclusive then the appropriate thing to do is to call for fresh party primaries and conduct of fresh governorship elections.
4. The situation in Kogi State is as such not novel as it has been decided by the Supreme Court, per Uwais, CJN as far back as 1999. No candidate (be it PDP or APC) inherits the votes of the late Prince Abubakar Audu.
5. As the events unfold, we keenly keep our fingers crossed while anticipating that the Independent National Electoral Commission will retract and return the All Progressive Congress as the winner of the governorship election conducted on 21st November 2015 or conduct fresh governorship elections in Kogi State.
– Oluwole Oladimeji, Esq
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