Any Constitutional Lacuna In The Kogi State Debacle?

Because of the dynamic nature of democracy a lot things are happening in swift sequence. While the electoral crisis in Kogi state seem to have spread to its legislature with the change of baton by speakers, the gubernatorial election is still generating comments.

The governorship election was to produce a governor between the incumbent Peoples Democratic Party’s (PDP) governor, Capt. Idris Wada and thje ‘change’ challenger, Prince Abubakar Audu a candidate of All Progressive Congress (APC), who himself is not a total stranger to Lord Lugard House having been a former tenant between 1992 and 1993 when he was National Republican Convention (NRC) governor. He was elected under the erstwhile 1989 Constitution, which ironically happened to be the only constitution that made provision for a Constitutional Court but was aborted.

On return to civil rule via the 1999 Constitution luck shone on him through All Peoples Party (APP) come back to Lugard House as governor, but was unable to secure a second term in 2003 when the first tenure ended.My interest in the Kogi election debacle is Audu’s passion in exploiting constitutional provisions which sustained him till the 2015 gubernatorial election. I salute his courage and tenacity, and wish him farewell.

He could have rested on his oars after 1993 or go for a different endeavor but since the 1999 Constitution did not bar him from contesting for the office of governor again, he ran and won. In 2003 he contested for a second term in office but lost. Not relenting in 2007 and 2008 he ran and lost. For a man who just want to occupy the office and its appellation of “two-time governor” he would have felt complacent.

Yet in 2011 he came out, contested and failed. While some argued that his past achievements in office propelled him, others felt he had insatiable political ambition that blinded him to believe that he was still relevant in Kogi politics. I tried to fathom the reason for his tenacity but could not because I wanted to compare him with the past American President, Abraham Lincoln.

That Prince Abubakar Audu entered the gubernatorial race in 2015 with “rescue mission” slogan was another act of bravery as PDP had held sway since 2003. His courage was no doubt boosted by the fact that his party APC has taken seat at the top. But Wada’s power of incumbency and formidable campaign/media team headed by retired army general Senator Tunde Ogbeha was also a huge obstacle to Audu’s dream to return to Lugard House. As time went on these obstacles were to be overcome by Audu. However, his sudden demise was never expected at all. Even the 1999 Constitution never envisaged nor provided for such occurrence. What the Constitution provided for was death of “duly elected” governor before or after elections, not amidst it.

That brings to fore the question whether indeed the election was inconclusive on the day the collation of results ended. The significance of answering this question accurately lies in the fact that there would not have been any constitutional crisis in the Kogi State election if Independent National Election Commission (INEC) had declared the winner based on the results declared on the fateful day.

Two valid provisions of the law contended for pr-eminence with INEC alone being the arbiter. The crux of the matter was the conflict between s.179(2) of the 1999 Constitution which states:

“A candidate for an election to the office of Governor of a state shall be deemed to have been duly elected where, there being two or more candidates –

(a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the state” AND paragraph 44 (m) of the 2015 INEC Guidelines for Conduct of Elections (inferior to the constitution) which reads: “where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where election was cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new form EC 8D and subsequently recorded into form EC 8E for Declaration and Return” In other words, where the number of voters who have not voted (49,953) is larger than the number of votes (41,353) with which one party has scored to remain in the first place against the closest party.

According to INEC account the APC had scored the highest aggregate votes with 41,000 lead and scored at least 25% of votes cast in at least two-thirds of the 18 LGAs in the state. Therefore if INEC wanted to be bound by s.179(2) they would have declared a winner based on the available results. But obviously they preferred to be bound by the Electoral Act 2010 as amended to declare the election inconclusive.

Since there is no requirement for candidates to win in all polling units before declared winner, it seems that votes from the 91 polling units which rendered the election inconclusive were superfluous. Therefore the Returning Officer had strong constitutional basis to have declared winner of the election. Apart from navigating the nation away from this constitutional crisis such decision would have saved a huge cost.

Nigeria had drifted to precipice in the past when Chief M.K.O. Abiola’s presidency under Social Democratic Party (SDP) was also shrouded in Humphrey Nwosu-led Federal Election Commission (FEDECO) inconclusive election election in 1993. Even though he was never officially declared winner of the election he declared himself the circumstantial winner. Audu’s is different because the inconclusive election was later concluded and APC declared winner with late Audu’ substitute sworn in.

I believe that by asking relevant questions and obtaining accurate answers we would be able to resolve that puzzle. At all times during election political parties are the entrepreneurs canvassing for votes. Their candidates are representatives; more of bates to capture voted. The proprietary rights in the votes belong to the sponsoring parties. The p;arty has legal backing of the constitution as well as s.33 of Electoral Act 2010 to substitute candidates when they die (Audu) or withdraw (Faleke). In my view there should not be hard and fast rule since a substituting deputy or candidate could refuse the offer. There is nothing in the law that compels the candidate to step into the shoes of the dead or withdrawn. If Boni Haruna of had refused to step into Atiku’s shoes no one would have compelled him even his party.

Finally I submit that rather than going for constitutional amendment that many advocate, we should demand proper implementation of existing laws. If the Kogi election was not wrongly declared inconclusive, sections 178, 179, 181 of the 1999 Constitution and s.141 Electoral Act 2010 are sufficient and valid provisions to guide all elections to a successful completion. After all deputy means substitute. According to former Anambra state governor, Chukwuemeka Ezeife, deputy is like spare tire! The constitution and ancillary laws have made adequate provisions for that.

Iyke Ozemena
Corporate Attorneys/Consultants

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Articles by Iyke Ozemena