The development in the Kogi gubernatorial election has engaged the attention of legal experts who are looking into the gap in the provision of the 1999 Constitution and Electoral Act as regards death which both the constitution and electoral act never anticipated. KENNEDY EMETULU gives a critical treatment of the issue.
Continues from yesterday
Having clarified that, let’s look at the aspect of the Amaechi case that applies to the situation here jurisprudentially. Delivering judgment in that case, George Adesola Oguntade J.S.C. (as he then was), stated the following in relation to the political party and the individual candidate vis-a-vis an election:
“There is no doubt that P.D.P having previously sent Amaechi’s name to INEC by letter on 26/12/2006 could only validly remove the name or withdraw it if it complied with section 34(2) above.
The cogency or the verifiability of the reason for the withdrawal of a candidate’s name has to be considered against the background that INEC officials, pursuant to section 85 of the Electoral Act above, would have been present at a meeting or congress of a party called for the nomination of a candidate for an elective office. INEC would thus know the results of such party primaries. When a political party later asks to substitute a candidate, it does so against the background of the result of the primary election.
If there is a problem with a candidate who comes first, then the party will opt for the 2nd and later 3rd etc in that order. There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate. This seems to me a praiseworthy attempt to enthrone intra-party democracy in order to ensure that our democracy is truly reflective of the people’s choice.
Now section 221 of the 1999 Constitution provides:
‘No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any party or to the election expenses of any candidate at an election.’
“The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election.
I think that the failure of respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mundane or colloquial terms we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is his party that has won the election.
“I mentioned earlier that PDP did not provide cogent and verifiable reason for the attempt to substitute Amaechi with Omehia. Not having done so, Amaechi who had acquired a vested right by his victory at the primaries and the submission of his name to INEC was never removed as P.D.P’s candidate.
If the law prescribes a method by which an act could be validly done, and such method is not followed, it means that that act could not be accomplished. What P.D.P did was merely a purported attempt to effect a change of candidates. But as it did not comply with the only method laid down by law to effect the change, the consequence in law is that the said change was never effected. In the eyes of the law, Amaechi’s name earlier sent to INEC was never removed or withdrawn.
“In his argument in the brief filed for P.D.P, J.K. Gadzama S.A.N, senior counsel argued that Amaechi who had not contested the election could not be declared the winner. He stated that such a declaration would amount to a negation of democratic practice. With respect to counsel, I think he missed the central issue which is that it was in fact Amaechi and not Omehia who contested the election.
“Omehia remained no more than a pretender to the office. The one unchanging feature is that P.D.P was the sponsoring party”.
First, it is important to clarify that the Electoral Act being referred to here is the 2006 version which was the applicable law at the time of the case in 2007, but that is not an issue in this case as it affects us. Secondly, we do recognise that the issue before the Court in Amaechi’s case was one of withdrawal of candidate by the party, not death. But the interface with our case here is that both revolve around the appropriate way a party can replace a candidate for the purpose of election whether the original candidate died or withdrew or was withdrawn.
What this case established, which none of us are arguing here, is the primacy of the party in making that decision. I have taken the liberty to quote extensively to allow us see the full thinking of the court in reaching its decision, because that will allow us appreciate my application of it here as opposed to how those who prefer Faleke to simply step into Audu’s shoes apply it.
The core provision in the Justice’s view is section 221 of the Constitution. This establishes the fact that it is the party that contests elections through candidates they sponsor. The second core thing to take away is that the replacement must be based on the results of the party primary appropriately conducted and witnessed by INEC, who must know the results of such party primary. The Justice specifically stated that substitution of a candidate must be done “against the background of the result of the primary election”.
He went on to exemplify it thus: “If there is a problem with a candidate who comes first, then the party will opt for the 2nd and later 3rd etc in that order.” Applying this principle in this case, it is clear that Abiodun Faleke does not feature at all as he was not part of the party primary. He was chosen as a running-mate to Audu only after the party primary. So, if anyone has to be considered outside a fresh party primary, it must be, according to the Supreme Court decision, Alhaji Yahaya Bello who was the closest rival to Audu at the primary with 709 votes to Audu’s 1109. Again, according to the Supreme Court, if there’s a problem with Yahaya Bello, the next man, Senator Nurudeen Obatemi with 400 votes would be the candidate and if there is a problem with him too, then it would be Sanusi Gamji with 309 votes and so on.
But it is not in the contemplation of the law (see Sections 32 (1) and 33 of the Electoral Act as quoted above) or of the Supreme Court (as clearly seen from the quoted parts of the judgment in Amaechi’s case) that Abiodun Faleke who was not a contestant at the party primary would be the party’s candidate.
Thus, the proper way of applying the Supreme Court verdict in the Amaechi case is not to assume that because the running-mate and the deceased are running on one party platform, the death of the gubernatorial candidate automatically means the running-mate steps in as the part candidate as both were produced by the party during their primary.
No, that cannot be for the simple reason that the running-mate was not the party candidate for the governorship produced from the primary and if we must respect the party’s choice, as suggested by the Supreme Court, then we must give the party the opportunity of choosing its own governorship flag bearer, rather than indirectly imposing one on it before the election. As the Supreme Court pointed out, the “one unchanging feature” is the sponsoring party. In this case, it’s the APC.
“There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate”, according to the Supreme Court and that is the overriding truth here.
The second practical reason Faleke cannot just step into Audu’s shoes has to do with the way political parties choose their flag-bearers based on certain political considerations.
Applying the above to the Kogi case, we do know that the majority ethnic group being Igala, both main parties (any of which is more likely to produce the Governor) invested in Igala candidates. To force the APC to now adopt an Ebira or Yoruba candidate, especially one that was parachuted from Lagos, to fly the flag of the party might be considered a huge disadvantage to the party. Surely, that cannot be the intention of the law.
The intention of the law is to provide an equal playing field for the parties. Indeed, it must be presumed that it gives the parties equal opportunities to freely choose candidates that would fly their flag once they meet the democratic requirements within their parties. No party would knowingly commit political harakiri where it has a choice.
It therefore stands to reason that the APC must be given the opportunity to choose a new candidate to take the place of Abubakar Audu.
For this to happen, the provisions of sections 33 and 36(1) must be applied purposively. Audu would be deemed to have died before the commencement of the poll as 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”. Then the Commission shall appoint some other convenient date for the election within 14 days. Already, the poll that would be countermanded is the supplementary one, which arose from an inconclusive one. Both polls must be treated as one, because it is the one poll to determine the governorship of Kogi State.
Once this is done, the fairness and objectivity of the process cannot be questioned.
The APC will have the opportunity of sending another name to the Commission who must, in choosing a new date within 14 days of the formal ascertainment of death of the candidate by the Chief National Electoral Commissioner or the Resident Electoral Commissioner, consider that there has to be at least 45 days before the election in order to give INEC and the parties the time to prepare as required by law.
It is therefore hoped that INEC should cancel or countermand the Kogi election and give the APC the opportunity to produce a new candidate for a new election. Hopefully, everything will be concluded within the next two months without anyone taking us through the courts.
However, if anyone decides to go to court, they are welcome; yet this shouldn’t stop INEC from getting on with the job of providing the Kogi people an opportunity to choose their governor lawfully. If at the end of it all anyone still feels aggrieved and wants to challenge the election outcome, they’d be free to go to the Kogi State Election Petition Tribunal as stipulated by law.
Given the above suggestions, no one should pretend there is a constitutional crisis with the Kogi election and use that as excuse to throw us in an electoral ditch. This nation is hanging on tenterhooks at the moment already and we don’t need another avoidable crisis from Kogi to pile on all that we have at the moment.
Concluded
Emetulu writes through [email protected]
