On the 22nd of November 2015 the Nigerian media space was filled with the news of the sudden death of the APC gubernatorial candidate in the unconcluded gubernatorial election in Kogi State. Though the sudden death of the political actor brings so much worry in the minds of the political spectators, the main worry is as to the legal effect of his death.
Section 181(1) of the 1999 Constitution as amended, is to the effect that where a candidate in a governorship election dies before taking the Oath of Office/ Allegiance, the elected deputy governor shall be sworn in as the Governor, and he shall appoint another person as the Deputy Governor with a simple majority of the State House.
Section 33 of the Electoral Act 2010 provides that, in effect, that a person has been duly nominated as a candidate of his party and he dies before the election then the political party has the right to replace him with another candidate who may not be the Deputy Governorship Candidate.
Section 36(1) of the Electoral Act provides that if the governorship candidate had died before the election, the REC shall shift the election to a convenient date not later than 14 days.
THE LEGAL ISSUE
The legal question begging to be answered is, whether the Kogi situation fits into Section 181 of the Constitution, or Section 33 or 36 of the Electoral Act.
MY LEGAL OPINION
Looking at the above statutory provisions, in the light of the present scenario it is clear that the Kogi case does not fit into any of the above provisions. It is indeed a novel constitutional scenario as it has never happened before in the political history of Nigeria. Obviously, there is a lacuna in the law.
Now will the laws operate to allow the incumbent Governor to over stay his tenure, or will it operate to create a vacuum in Kogi State when the incumbent vacates his office?
It has been argued amongst some legal folks that the law in the case of Amaechi v INEC which says that it is a party that wins the election is now a bad law. This argument to my mind is unfounded because the new provisions in the Electoral Act is only addressing the fact that a person who did not participate i.e. campaigns in elections under a party cannot be declared winner ( that is why you see about three candidates in Anambra campaigning under PDP while their matter is in court). However, the Amaechi case is not what we have here.
This is because, the deputy governorship candidate participated in the election campaigns with the late governorship candidate under APC and the people voted APC . The APC logo was on the ballot paper. The governorship and deputy governorship Candidates had a joint candidature (in fact under the Electoral Act, the governorship candidate cannot contest an election without the deputy governorship candidate) and the death of the governorship candidate as in this case cannot separate them. Since the deputy governorship candidate did not die with the governorship candidate, Section 181(2) cannot apply.
Also, In so far as the death occurred after elections have been conducted, though not concluded, it can not fall under the provision of Section 36 of the Electoral Act.
It will be wrong for anyone to suggest a fresh election at this point because it will involve fresh primaries for the APC and all the laws relating to party primaries especially with respect to time must apply. Does Kogi have that time? In fact it is my view that the Kogi scenario does not even warrant a fresh election.
I would rather advice the REC of Kogi state to go ahead and conclude the election, declare APC/Faleke the winner, Faleke should be sworn in and the provisions of Section 181 of the constitution should apply. However, it also behooves the AGF to file an application to the Supreme Court immediately to Interpret the relevant sections to fill up this lacuna in our law, SAVING EVERYONE THE POST ELECTION MATTER STRESS.