The death on Sunday 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.”
Section 36(1) of the Electoral Act states: “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.”
Also, Section 33 states that “a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act, except in the case of death or withdrawal by the candidate”.
In the Kogi election, however, 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.
In addition, the amended Electoral Act requires the name and the party of the candidate to be published on the ballot paper, effectively ensuring that the candidate supersedes the party on which he/she is contesting, an amendment made by the National Assembly in 2010 in response to the Supreme Court ruling in Chibuike Amaechi Vs. Celestine Omehia and the Peoples
Democratic Party (PDP) in 2007, in which the court recognised the victory of the party in the Rivers State poll that year and declared Amaechi victorious despite his absence on the ballot.
Since INEC is required to publish the names of candidates on its ballot paper, if in the event of his/her death during the election and he/she is replaced by a running mate, can it really be said that the new candidate can take over the votes cast for the dead candidate?
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