The controversy generated by the declaration of the Kogi State election as inconclusive and the substitution of late Prince Abubakar Audu with Yahaya Bello has by no means abated.
Many people have argued that INEC erred by not declaring the winner of the election. Evidently, the election was already won in 16 LGAs by Audu, with total vote of 240,867 as against Captain Wada’s 199,514. Obviously, the valid 25,000 votes in the 91 polling stations cannot change the outcome of a supplementary election.
Again, that INEC erred by approaching the Minister of Justice instead of the Supreme Court for interpretation regarding Audu’s demise during the election; the latter hurriedly asked APC to replace late Audu without due recourse to the constitution.
The constitution and the electoral laws are strict about who participates and wins an election. After satisfying the requirements of the electoral acts section 31, late Audu picked Faleke and they became inseparable as clearly stated in section 33. The section makes no room to change or replace a candidate except in the case of sections 141, 142 and 36 (1) where a candidate dies before the commencement of poll. And from there it is agreed that they share the same fate in the outcome of the election. Therefore, replacing Audu with Bello is a grave error.
The reason for declaring the election inconclusive is flimsy, because when INEC pronounced the election inconclusive, the Audu/Faleke ticekt had clearly won the election. INEC had announced that they polled the highest number of votes of 240,867 against Wada’s 199,514 and won in 16 out of the 21 LGAs. Sections 133, 134 and especially section 179(1) (a) emphatically states that a contestant can be deemed to have been elected with a majority of YES votes over NO at the election; subsection (b) further stressed that he has not less than one quarter of the votes cast of the election in each of at least two third of all the LGAs. Section 69 of the Electoral Act corroborates that; in an election to the office of the governor, and in compliance with sections 133, 134 and 179, the candidate that receives the highest number of votes shall be declared elected. This answers the question of whether the Audu /Faleke can be deemed to have duly won the election and the election cannot be declared inconclusive.
Further, section 181(1) of the Electoral Act states that if a person duly elected as governor dies before taking oath of office or for any reason whatsoever cannot be sworn in, the person elected with him as deputy governor shall be sworn in as governor.
It is therefore an error for INEC and the APC leadership to smuggle Yahaya Bello into a process that was already concluded.
The only claim of Bello is that he participated at the primary elections where he emerged as a runner-up. The Electoral Act in sections 87 (1) (b) states that the candidate with the highest votes at the end of the voting shall be declared the winner of the primaries. This section of the Electoral Act did not validate runner-ups neither does it suggest warehousing runner up’s votes for any reason. The sole purpose of primary elections is to produce a flag bearer for the party and that ends it.
Yahaya Bello could have been brought in only before the commencement of polls as stipulated in sections 36 (1) of the constitution. Fortunately for the process, he came late to be considered for any relevance, contesting without a deputy in a needless supplementary where he polled an insignificant 6,855 votes and even when the Electoral Act states that a tribunal or court shall not under any circumstance declare any person winner of an election in which such a person has not fully participated in all the stages of the election.
From the foregoing, it is incontrovertible that James Faleke is the governor elect. As proceedings unfold in the courts, the rights of the petitioner and electorates must be protected as justice should not be done, but should be seen to be done.
– Akerejola Abiodun,
Lokoja, Kogi State.
