In a few days from now, the tenure of Captain Idris Wada, Governor of Kogi State, will come to an end. By effluxion of time and in line with the provision of Section 180(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), he shall vacate his office as governor of Kogi State on January 27.
One distinguishing feature of democracy as a form of government is the platform it provides to render those who govern accountable to the electorate. Accountability in this sense is secured through regular elections. The head of government is elected by popular votes. He is invested with authority and power in order that he may try to achieve those goals which he commits himself to the people. At the end of his term of office, the electorate has the opportunity to judge his performance and re-elect him or dismiss him from office through voting. It follows that the will of the people, expressed through credible electoral process, forms the substratum of authority and legitimacy of democratic governments.
On November 21, 2015, the electorate in Kogi State exercised their franchise, spoke through the power of their thumbs and roundly rejected Captain Idris Wada, who is adjudged a non-performer from continuing as the governor of the state. His power of incumbency could not deliver him from outright rejection. At the election, the All Progressives Congress (APC) featured Prince Abubakar Audu and Hon. James Abiodun Faleke as its governorship and deputy governorship candidates respectively. Similarly, the Peoples Democratic Party (PDP), featured Captain Idris Wada and Arc. Yomi Awoniyi. Twenty other political parties participated in the election.
The electorate in Kogi overwhelmingly voted Prince Abubakar Audu/Faleke in an election that has been acknowledged as generally peaceful, free and fair. Unfortunately, tragedy struck, as the cold hands of death caught up with Prince Audu. He died shortly after the conclusion of the election. Since the demise of Prince Audu, things have not remained the same in the political arena of Kogi State. What started as a simple and straightforward issue has been made unnecessarily complicated by the sheer ineptitude of the Independent National Electoral Commission (INEC). Surely, INEC must bear the brunt of the blame of the crisis in Kogi that has arisen as a result of Prince Audu’s death. As the constitutional body set up to organize credible elections in Nigeria, the bulk stops at the table of INEC. In the performance of its sacred responsibility, it owes Nigerians, (Kogites inclusive), the duty of independence and competence, which must be demonstrated transparently. What we are witnessing in Kogi State, regrettably, falls short of this expectation. The general impression is that we now have an INEC that is spineless and lacking in capacity; an INEC that is manipulatable and has indeed, within a short time of its new leadership, lent itself to political manipulations at the expense of the constitution of the Federal Republic, the Grundnorm. The way INEC mishandled Audu’s death is unfortunate. The dubious and insincere approach it adopted in ‘resolving’ the issue has engendered political and constitutional imbroglio of a frightening proportion in the state. As the date for inauguration of a new government approaches, an atmosphere of fear, tension and anxiety has enveloped the entire state. Series of applications are now pending before the Kogi State Governorship Election Petition Tribunal, Lokoja, seeking to stop the inauguration of Alhaji Yahaya Bello as governor. The first misstep of INEC in declaring the election of November 21, 2015 inconclusive has led it to commit one error after another, such that, a spectacle of comedy of errors is now created, with Kogi State, nay, Nigeria, becoming an object of ridicule in the eyes of the civilised world. A review of these errors is apposite at this point.
Wrong declaration of election of November 21, 2015 as inconclusive
INEC has a statutory duty to declare winners at elections it organises. Section 69 of the Electoral Act (2010) imposes this duty. It provides:
- In an election to the office of the President or Governor, whether contested or not contested, and in any contested election to any other elective office, the result shall be ascertained by counting the votes for each candidate and subject to the provisions of section 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.
It is important to note here that Sections 133 and 134 of the Constitution, referred to above, apply to election of the president, while section 179 applies to governorship election. The applicable provision in respect of a governorship election is section 179(2) of the Constitution. For purposes of clarity, it is quoted hereunder:
179(2). 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 —
- He has the highest number of votes cast at the election; and
- He has not less than one-quarter of all the votes cast at each of at least two-thirds of all the local government areas in the state.
The undisputed scores announced and declared by the Returning Officer of Kogi State governorship election shows that Prince Abubakar Audu and Hon. James Faleke polled 240,867 votes and Captain Idris Wada and Yomi Awoniyi scored 199,514 votes. There was a margin of 41,353 votes between them. With these scores duly recorded, announced and declared by the returning officer, the operation of sections 69 of the Electoral Act and 179(2) of the Constitution comes into effect. Accordingly, the returning officer ought to have performed its constitutional responsibility by announcing Prince Audu and Hon. Faleke winners. At the point when the returning officer ought to do this, he, incomprehensibly, declared the election “inconclusive”. He then went ahead to fix a date for a ‘supplementary’ election in 91 polling units around the state. The position of INEC was that votes of some 49,000 registered voters were pending and it was still possible for the outstanding votes to have effect on the overall result.
INEC was not truthful on this point. INEC knew that a supplementary election was unnecessary in the circumstances. The electoral body was and is still in possession of records which show that in the affected 91 polling units, there were only 38,000 permanent voters cards (PVCs) issued. From the said 38,000 PVCs, only 25,000 voters collected the cards. And, at the November 21, 2015 election, only 19,000 persons were accredited in the affected units. The margin of win by Audu/Faleke ticket would, undoubtedly, have accommodated any of the figures with Audu/Faleke still leading by majority of votes. It can, therefore, be rightly concluded that the phony ‘supplementary’ election was falsely devised to hoodwink the people of Kogi State and play the script of some powerful political interests at the expense of the will of the people of Kogi freely expressed.
Was the election conclusive or inconclusive?
The verdict of INEC that the November 21, 2015 election was inconclusive is baffling. It is a grave error. INEC and its officials at the end of the election announced the results of all the polling units, wards and local government areas in Kogi State. The returning officer of the election has also declared the overall scores of the candidates. It is, therefore, incongruous that an electoral body would announce all the results of the local governments of a state and turn around to declare same inconclusive. If INEC knew what it was doing, it should have demonstrated the ‘inconclusiveness’ of the election by leaving out unannounced, the results of the units, wards and local government areas where votes were outstanding.
The well-established principle of electoral law presumes the result declared by INEC as correct and authentic. INEC is, accordingly, bound by the result of Kogi State governorship election announced and declared by its returning officer on November 22, 2015. (See: Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941)1. The onus is now on the electoral body to establish that the 13,000 votes cast at its phony ‘supplementary’ election has any effect on the declared result. In so far as the 13,000 votes cannot tilt the scale of victory, one way or the other, it becomes irresistible to conclude that the election was conclusive on November 21, 2015, contrary to the claim or assertion of INEC.
Prince Audu’s replacement and Bello’s emergence
It was under the guise of the “supplementary” election conducted by INEC on December 5, 2015, that Alhaji Yahaya Bello emerged as the APC candidate. INEC had earlier requested APC to replace the late Prince Audu and the party forwarded his name. At the end of the ‘supplementary’ election, Alhaji Bello scored 6,000 votes and was curiously declared winner and governor-elect of Kogi State. This declaration is surely without any constitutional foundation a fortiori after discovering that all the votes cast at the “supplementary” election amounted to only 13,000 which if added to the existing scores still put Audu/Faleke ticket at the forefront and winner of the election.
The root of the substitution of the late Prince Abubakar Audu with Alhaji Yahaya Bello can be traced to the gratuitous advice offered by the Attorney-General of the Federation (AGF), Mr. Abubakar Malami, directing INEC to allow APC to substitute its deceased candidate. INEC keyed into the counsel and fell into error. In a way, the AGF misled INEC to arrive at an unconstitutional decision.
It was clearly not part of the responsibilities of the AGF to offer legal advice to INEC or any directive for that matter. INEC has its own consortium of Senior Advocates of Nigeria (SAN) that provide counsel to the commission and defend its cases. INEC also has a very vibrant legal services department, headed by another SAN. It is not unlikely that INEC lawyers offered their professional advice to INEC which must have been ignored on an altar of political expediency.
The theory of substitution of a candidate after the conclusion of an election propounded or advocated by Malami and enforced by INEC is strange to our electoral law and the constitution. The fact is well established that Prince Audu did not die before or during the November 21, 2015 election. He died after the election. The evidence for this assertion is not far-fetched. He was seen in the full glare of television cameras as he cast his vote on that day. He also made some remarks over the conduct of the election. INEC also buttressed this fact when it widely published a statement that it officially got to know about Prince Audu’s death on November 23, 2015.
The notion of substitution of candidates is a pre-election and not a post-election matter. The event of Prince Audu’s death is a post and not a pre-election matter. The right of a political party to substitute a candidate abates before the commencement of an election. Section 36 of the Electoral Act is explicit on this as it states:
“If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidates dies, the Chief National 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 day for the election within 14 days.
From the foregoing since Prince Audu died after the election of November 21, 2015, it was wrong for APC and INEC to have substituted him with Alhaji Bello. There is no known law or constitutional provision that allows for the substitution of a candidate after the commencement or conclusion of an election. The APC clearly over-exaggerated its powers and ascribed to itself the authority it does not possess in arbitrarily, illegally and unconstitutionally by-passing Hon. James Abiodun Faleke and picking Alhaji Yahaya Bello to substitute Prince Audu in a most undemocratic and crude manner.
If for the purposes of arguments, it is agreed (not conceded) that a supplementary election was necessary in the circumstances of Kogi election, APC committed an unpardonable blunder by not presenting Hon. James Abiodun Faleke as its governorship candidate after the death of Prince Audu. It is inconceivable that APC and INEC could not appreciate that in the election of November 21, 2015, there was the joint ticket of Audu/Faleke and APC. The votes cast at the election were for the trio. None of the three can take anyone in the ticket for granted. None of them can trade away the votes. And, because the votes are indivisible, they are also not transferable. Accordingly, Alhaji Yahaya Bello, for all practical, legal and constitutional purposes, is a stranger and an interloper to the 240,867 votes scored by Audu/Faleke and APC ticket on November 21, 2015. It is important to stress, for the umpteenth time, that the Kogi State governorship election held on that day was won upon those scores unequivocally and without any quibbling.
The pungent point has to be made, by way of education, for the benefit of INEC and APC that the era in which votes were said to be won by political parties has gone. Political parties are inanimate entities that can neither canvass for nor win votes on their own. In recent times, the Supreme Court has handed down decisions that over-ruled its earlier decision in Amaechi v. INEC (2008) 5 NWLR (Pt 1080) 227. The current position as adumbrated in CPC & Anor v. Ombugadu & Anor (2013) LPEL-21007 (SC), by the apex court is that: “Contrary to the decision of this Court in Amaechi’s case, the implication of section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him. In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored”. (P. 51).See also Jev. & Anor v. Iyortom& Ors (2014) LEPELR-23000. Furthermore, it is noteworthy that these two cases also establish the principle that before a person can be returned as elected, that person must have fully participated in all the stages of the election.
Simon Achuba as deputy-governor elect?
The comedy of errors in Kogi has now been carried to a point of unmitigated absurdity, with the surreptitious approval of Hon. Simon Achuba as deputy governor-elect of Kogi State. This is simply scandalous! The criminal act which must necessarily involve some elements of forgery and falsification raises some fundamental questions.
- In which election did Achuba participate?
- When did he complete his nomination form?
- Has the position of deputy-governor of Kogi State become so cheap that it can be picked by the road side or at a market?
- When was Achuba announced to have won any election along with anybody?
- Since this is a post-election matter, the House Assembly of the State is required to approve such a nomination or selection. When did the House approve same?
Conclusion
There is no doubt, if INEC had approached and handled the election in Kogi State with sincerity of purpose and astuteness required of an independent and unbiased umpire, as INEC is established to be, Hon. James Abiodun Faleke should by now have been warming up for his inauguration as the governor-elect to take over from the non-performing Wada, in accordance with the mandate that the electorate of Kogi State gave to Audu/Faleke and APC ticket. This is in consonance with the combined effect of the provisions of sections 179 (2) and 181 (1) of the Constitution of the Federal Republic of Nigeria.
The way out, therefore, is the path of constitutionality. The path of constitutionality is the path that guarantees peace, equity and justice. It is the only path that will strengthen our nascent democracy and rekindle the faith of Nigerians and the world at large, that democracy can work in this country.
Any step taken outside the path of constitutionality can neither last nor stand. The path of constitutionality is a path that demands courage and strength of character. May the Almighty God grant the judiciary the courage and strength needed to do justice at these trying times, to save Kogi from underserved disparagement and mockery.
Credit: The Nation
