The legal implication of Audu’s death on the election has been interpreted in different ways, with Olisa Agbakoba, former president of the Nigerian Bar Association (NBA), suggesting that a fresh election be conducted.
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.
In his remarks on the legal lacuna, Prof. Sagay said: “Obviously, the election has become inconclusive. If the person who scores the highest votes dies before being declared the winner of the election, in that type of situation, there has to be a fresh election, giving the party affected to provide a substitute.
Agbakoba was similarly inclined, stating: “The fact that the candidate is dead, invalidates the ticket,” arguing that “you need to have a person and a party to complete the ticket”.
He said the situation would have been different if the candidate had been declared the winner of the election before his demise. “The deputy would have been elevated to the position of the governor,” Agbakoba said.
When reminded of the Supreme Court ruling in the All Nigeria Peoples Party Vs Alhaji Atiku Abubakar, a 1999 case interpreted and given effect to this section of the constitution when it held that Mr. Bonnie Haruna, who was the running mate of Alhaji Atiku Abubakar who was elected governor, but was also elected vice-president before he was sworn in as governor of Adamawa State, was eligible to be elevated to position of governor without recourse to a fresh election.
But Agbakoba said the Atiku case would not apply to the Kogi case because there was no declaration of results. “The deputy governor would have been elevated to the position of the governor if results had been declared. They didn’t get to that point; they were on their way there,” he said.
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”.