INEC And The Constitutional Nakedness Over Prince Audu’s Death


It is no longer news that the All Progressives Congress (APC) candidate in the just held Kogi state governorship elections, Prince Abubakar Audu, is dead. The former governor of the state is said to have been “coughing” blood before slumping to his tragic death, just hours after returning home from casting his vote on Sunday, 22nd November, 2015. And even though the Independent National Electoral Commission (INEC) declared his victory at the elections inconclusive, many believe that Audu’s party, the APC had actually won the polls. The actual ailment (if any) responsible for his sudden death is still unknown.

Prince Abubakar Audu was Governor of Kogi State in the fourth republic upon Nigeria’s return to civil rule in May 29, 1999, but it was not his first time to be governor of the state. The former banker’s first tenure was in 1992 when he contested on the platform of the National Republican Convention (NRC), which he won and was eventually sworn in as the first executive governor of Kogi state in January 1992. It lasted a little under two years (between January 1992  to November 1993).

The dust raised by the timing of this untimely death is not that of who the murderers are or who should be blamed for his sudden demise but the battle has taken a different format, with the line drawn around the law. The Electoral Acts 2010 is vague and unclear as regards this kind of event, thereby exposing its loopholes. Senior legal luminaries in the country on the other hand are divided on what the next appropriate line of action should be.

Most of them agree that the matter is a delicate one and should be treated with caution. Constitutional lawyer and Senior Advocate of Nigeria (SAN) Malam Yusuf Ali said the situation in Kogi is “very complex, because the election has been declared inconclusive. If he had won the election outright, it would have been a different matter, but with the way things are, it is very delicate.”

Others insisted that INEC must not cancel the elections but that the deputy governor, nominated by the party should continue the election and automatically claim the results if they come out eventual winners. One of such lawyers was the former chairman of The Nigerian Bar Association (NBA) Ikeja Branch, Monday Ubani, who insisted that:

“Since the Electoral Act didn’t specifically provide for things like this happening in the course of an election, we would have to make recourse to the judicial pronouncement in the case of Rotimi Amaechi where the Supreme Court said in an election, it is the political party that is the beneficiary of election and not the candidate. That is why Amaechi who didn’t contest during elections was sworn in.

“In this situation, the deputy governorship candidate would have to step in to conclude the process. If he wins the election, the APC would then decide on another deputy for him.”

Bringing up a different perspective, Wahab Shittu, a lecturer of Law at University of Lagos (UNILAG) said since it is the party that fields the candidate, and since the election has turned this way, the party would have to replace the governorship candidate.

“Which means that the election might be conducted afresh. The death of a candidate during the process of an election automatically voids the election. It is not a question of an election being inconclusive. The entire electoral process is now altered with the death of the governorship candidate,” he said.

Digressing a bit from Shittu, Chief Niyi Akintola (SAN) said: “There can be fresh election. INEC can only conduct supplementary election in the 91 polling units. The death of Audu cannot nullify the election. It was APC that contested the governorship election not Audu as an individual.”

Akintola explained that it is left to the APC to pick another candidate from among those that contested the governorship primary with Audu or ask the deputy governorship candidate, James Faleke to take over.

“The decision lies with the APC,” he added.

The deceased, who contested under the platform of the APC, which is the country’s ruling party was said to be leading in Saturday’s polls. This makes the situation more precarious because, the incumbent governor is of the opposition party, PDP, who are trying to hold on to as many positions of power as they can in their bid to make a comeback. The ball seems to be lying at INEC’s court but not without much scrutiny. According to Section 36 of the 2010 Electoral Act:

SECTION 36 – Death of a candidate – (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.

(2) The list of voters to be used at a postponed election shall be the official voters register, which was to be used if the election had not been postponed.

This is the closest the electoral acts states regarding the Kogi situation. It is obvious that the electoral law did not envisage such an incident. However, Nigerians are watching. The world is watching!