The demise of the All Progressives Congress (APC)’s gubernatorial candidate for Kogi State, Prince Abubakar Audu on the 22nd of November during the election wherein he was a candidate is a novel case in Nigeria’s democracy and has sparked several discussions arising from the interpretation to be given to the Constitution and the Electoral Act 2010 (as amended) in order to determine the solution to this knotty quagmire. One general consensus is that there is a lacuna in our current jurisprudence addressing this issue. The legislation covering the death of a gubernatorial candidate in an election envisages only two situations: where he has been duly elected and dies before taking and subscribing to the Oath of Allegiance and Oath of office (covered by Section 181 (1) of the Constitution); and where he dies after delivery of nomination papers and before commencement of the poll (covered by Section 36(1) of the Electoral Act 2010 (as amended). The two situations have very different consequences. In the case of a Governor who has been duly elected but dies before he is sworn in, his running mate at the election who is now the Deputy-Governor would be sworn in as Governor and he would nominate a new Deputy-Governor who shall be deemed properly appointed with the approval of a simple majority of the House of Assembly of the state. In the second scenario however, where the candidate dies before the commencement of the polls, the poll will be countermanded and a new date fixed for the elections within 14 days. It is also pertinent to add that the Electoral Act provides that a political party would not be allowed to change or substitute its candidate after submission of the name of the candidate to INEC except in the case of death or withdrawal by the candidate. It is therefore safe to say that a candidate who dies before the poll commences can be substituted or changed by the sponsoring political party. But neither of these scenarios comes to play in this instant situation.

Lawyers have been divided in their opinions as to which of these two provisions and/or their consequences should be applied to the instant case. In various media reports, while most lawyers including the eminent Prof Itse Sagay SAN, Olisa Agbakoba SAN, John Oloyede and Emeka Etiaba SAN have called for a cancellation of the elections and the conduct of a re-run, Fetus Keyamo has argued that the late Abubakar Audu’s running mate automatically becomes the governorship candidate of the APC and is entitled to the votes the Audu/Faleke ticket has already acquired going into the supplementary election. He added that the party should submit to INEC the name of a fresh Deputy Governorship candidate. Mr. Kennedy Emetulu in a very articulate opinion circulated on various media platforms arguing against the position adopted by Mr. Keyamo that Mr. Faleke be automatically declared the gubernatorial candidate and votes garnered be accrued to him, stated that the running mate cannot claim from a platform that has not yet been won as that would amount to building something on nothing. Analyzing the judgment of the Supreme Court in the case of Rotimi Amaechi v. INEC, Celestine Omehia & PDP, Mr. Emetulu argued in favour of the supremacy of the political party’s choice in its gubernatorial candidate and stated that it is not in the contemplation of the law that a person who was not a contestant at the party’s primary be the party’s candidate. He stated that in the circumstances of this case where the elections have not been concluded and a winner declared, substitution of the candidate must be done against the background of the result of the party’s primary election. He concluded that APC must be given the opportunity of presenting a new candidate either by choosing the runner up of the previous primary or by conducting fresh primaries.

This is not the first time the country is faced with a lacuna in its laws and resolved it based on a purposive interpretation of existing laws. INEC must decide what interpretation to give to the laws or whether to seek interpretation from the courts before taking a decision.

For ease of our readers, the relevant provisions are reproduced below:

Section 181(1) of the 1999 Constitution (as amended):

“If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy Governor shall be sworn in as Governor and he shall nominate a new Deputy Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State”.

Section 36 (1) of the Electoral Act 2010 (as amended):

“If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, 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 and the Commission shall appoint some other convenient date for the election within 14 days”.

Section 33 of the Electoral Act 2010 (as amended):

“A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 32 of this Act, except in the case of death or withdrawal by the candidate”.