The death of Prince Audu and solution to the legal logjam By Abdul Mahmud, Esq

The death of Prince Audu, Governorship candidate of the APC in the inconclusive Kogi Governorship Poll, held on Saturday 21st November, 2015, has created serious legal and constitutional conundrum that demands urgent and quick judicial address and resolution.
We are in a strange legal and constitutional territory. The 1999 Constitution and the Electoral Act 2011 do not envisage the unfortunate circumstances the death of Prince Audu in the middle of a poll foists.

Recall that INEC declared the Saturday poll inconclusive, which makes the provisions of Section 181(1) of the Constitution, 1999 inapplicable in the circumstances.

Whatever positivist interpretation ( an approach the Supreme Court has adopted in a plethora of authorities) commentariat gives to Section 181(1), the phrase, “If a person is duly elected as Governor”, couldn’t have availed late Prince Audu were he alive because he didn’t meet the conditions set out in Section 179 (2) of the Constitution, 1999.

Or that Prince Audu and Gov Wada did not meet the conditions set out in Section 179(2) (b) of the Constitution as aforesaid.

And it was for this reason that INEC declared the Saturday poll inconclusive and ordered supplementary poll for 91 polling units. Our view, here, however, is that any positivist interpretation that seeks to clothe the APC with what S.181(1) does not avail it is to inflict violence on the Constitution.

Since we are in a strange legal and constitutional territory, no inference can be drawn from Boni Haruna’s case to fit the present circumstances because the facts are not similar.

SEARCHING FOR THE LAW

As it stands, what should serve as the icebreaker of this seemingly intractable legal and constitutional logjam is the interpretation the court places on Section 36(1) and Section 33 of the Electoral Act, 2011.

Our sense, here, is that in resolving the conundrum and breaking the logjam, our court cannot go beyond the purview of Section 36(1) of the Electoral Act, which deals with the death of a candidate and Section 33 of the Electoral Act which sets out the right of a political party to substitute its candidate who has withdrawn his candidacy or has died.

The questions our court must address itself to therefore are: 1) What nature of poll does Section 36(1) envisage- fresh election, re-run, or bye-election? 2) Does the INEC-ordered “supplementary poll” fall within the purview of this section? 3) What does the phrase, “dies before the poll” mean?

Our view is that since Section 36(1) does not define the character of the poll or places a nomenclature on the poll, the liberal interpretation is that it envisages the poll expected to be conducted in the 91 polling units as announced by INEC in the immediate aftermath of the Saturday poll.

Therefore, it can plausibly be held that Prince Audu died before the expected poll and INEC is thus empowered by the Act to countermand the poll and fix a date for the poll within 14 days.

If this position is correct, and we think it is, APC is thus empowered by Section 33 to substitute its dead candidate. It is needless to conduct fresh party primary in the circumstances!

THE ILLEGALITY OF SUPPLEMENTARY POLLS

As we have consistently argued since 2011, there is no provision in our extant electoral laws that empowers INEC to order or conduct supplementary polls. The order made by INEC for supplementary poll to conclude the Kogi Governorship poll is unknown to the Electoral Act.

The Electoral Act is very clear in Section 70: fresh election can only be ordered where there is equality of votes cast for two candidates with the highest or majority of votes.

We expect that while the court invariably resolves this seeming legal conundrum the death of Prince Audu foists, pronouncements can be made on the legality or illegality of supplementary polls.