INEC Weighs Its Options on Kogi

The demise of the All Progressive Congress (APC) candidate in the Kogi State governorship election, Alhaji Abubakar Audu has thrown up issues that may require judicial interpretation of the courts on the legal status of a gubernatorial election in which a candidate dies before the declaration of results by the electoral commission.

While some lawyers, including Prof Itse Sagay and Mr. Olisa Agbakoba, both Senior Advocates of Nigeria (SAN), said the death of a candidate before the declaration of results or emergence of a winner renders the election inconclusive and mandates the conduct of a fresh election, others held the opinion that the election would have to be concluded and the party that wins, even when the candidate is dead, would have to be declared the winner.

Of paramount consideration for the Independent National Electoral Commission (INEC) will be the glaring fact that this is the first time a candidate will die midstream into an election, after it has started and before it was concluded with the declaration of a winner and losers. This dilemma was not envisaged by the framers of the constitution or the Electoral Act, 2010 (as amended). All the constitution provides for is a situation in which a declared winner dies or is unable to be sworn into office after the election while the Electoral Act provides for a situation where the candidate dies after his/her nomination, but before the election.

Specifically, Section 181(1) of the constitution states: “If a person duly elected as governor dies before taking and subscribing to the oath of allegiance and oath of office, or is unable for any reason whatsoever 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.”

In Kogi election, INEC is confronted with a situation whereby voting has taken place, results have been released, but the poll was declared inconclusive owing to the number of cancelled votes in select polling units and wards in 19 local government areas of the state exceeding the margin of difference between the two leading candidates, thus necessitating supplementary elections in the affected polling units or wards.

INEC was already consulting with a battery of lawyers last night and is expected to continue its meeting with them in Abuja today. They will be looking at a number of scenarios, which may prove quite challenging to resolve and require it to go court to seek legal interpretation.