Sunday 22 November 2015

Audu’s Death Will Open A can Of Worms In Our Electoral Laws - What Does INEC Do Next?

On Sunday evening, the online newspaper SaharaReporters broke the story that the gubernatorial candidate of the All Progressives Congress in the just concluded (and controversial) Kogi election, Mr. Abubakar Audu has passed away due to “undisclosed medical reasons.”

Audu Abubakar, one of two frontrunners for the top Kogi job – had been at the epicenter of a political matchup that gripped the nation in a way only comparable to that April election night in Taraba when the nation held its breath and waited to see if a state had put a woman in charge of one of Nigeria’s 36 ‘Government Houses’ for the first time (turns out that Taraba did, with some important caveats that the courts are yet to sort out). Audu was firmly in the lead as soon as election returns started filtering in, with some media organisations even declaring him the winner of the contest.

Audu’s death comes on the heels of another significant development in the evolving Kogi electoral saga: the announcement by the Independent National Electoral Commission (INEC) that the election was “inconclusive.” What this means for the wider political succession picture in a closely fought electoral race remains unclear.

By the provision of s. 181(1) of the 1999 Nigerian Constitution as amended, if a person duly elected as Governor dies before taking the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, as governor, the person duly elected with him as deputy governor shall be sworn in as governor and he shall nominate a new deputy governor who shall be appointed with the approval of a simple majority of the state House of Assembly.

In the highly unlikely event that the persons duly elected as governor and deputy governor die or are unable to assume office before the inauguration of the House of Assembly, INEC is empowered by s.181(2) to “immediately conduct an election.” The law seems fairly straightforward on this point, except that this scenario is not of the straightjacket variety.

Audu was not conclusively returned as governor. He has no Certificate of Return from INEC. By the Commission’s inconclusive election announcement, it is legally mandated by Section 68 of the Electoral Act to conduct a supplementary poll in those local governments it determines to be contributors to the ‘number of votes cancelled exceeding the number of votes by which Audu had established a lead’ over his Peoples Democratic Party rival, incumbent governor, Idris Wada – a deficit that is 8,600 votes strong.

Which leaves us in general, and the people of Kogi in particular, with a few searing questions. What does INEC do next? Will the APC contest the Returning Officer’s ‘inconclusive’ announcement? If INEC orders a supplementary vote pursuant to its announcement, which candidate will the APC field? On this last question, expect some very interesting legal commentary on sections 31, 33 and 36 of the Electoral Act as amended to flood the papers and social media in the coming days.

Whatever the uncertainty may be, one thing is clear at this point, if Kogi intended to get rid of Idris Wada at the ballot box, they are stuck with him for some time to come.

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