People always complain about why lawyers call themselves learned until something happens that throws all lay intellects off balance like the recent constitutional Lala-land that our electoral process, politics and human nature has fated upon us. Nigeria as a nation today seem to be fulfilling the Chinese curse "May you live in interesting time" for everyday in present day Nigeria is indeed an interesting season. Most recent episode in this series is the death of Prince Audu Abubakar the Governorship Candidate of the All Progressives Party for the Kogi State Governorship Election on 22nd November 2015 barely a day after elections were conducted albeit inconclusive with about 91 pulling units across 18 local governments to go. The furor raging from this misfortune is second to none. Everybody is asking what the law says about such development. The answer to this is that the law says so many things and nothing about it!
Who will be sworn in as governor should the APC emerge victorious in the election which they are already in clear lead? Will the running mate inherit the governorship? Or would the incumbent governor being the second candidate in the election be declared winner? Will doctrine of necessity be applied again and what will qualify in this case as "necessity"?
Incidentally, by virtue of a combined understanding of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) in section 181, The Electoral Act in sections 31, 33, 34, 35, 36, 39 and 40 as well as the judicial authority of the Supreme Court in Rotimi Amaechi v. INEC & Ors seem to prove very helpful in making the already vexing catechism more convoluted. Let us examine them in brevity.
SECTION 181 CFRN.
This is already a no go area because it makes provision for the deceased duly elected candidate as governor or president to be replaced by the running mate. In the instant case Audu died a contestant nay candidate yet to be duly elected due to whatever circumstances as they were that may have led to the inconclusiveness of an election that was scheduled and conducted a day before his death. To this extent the constitution cannot help us here.
THE ELECTORAL ACT
Section 31 requires political parties to submit the names of their nominated candidates and accompanying affidavits to the commission at least 60 days before the date scheduled for the elections. And section 34 requires such names to be published and displayed to the public at least 30 days before the election
Section 33 prohibits a political party from changing or substituting the name of the candidate already submitted in compliance to section 31 except on grounds of death of the candidate or withdrawal by same.
Section 35 provides for candidate to withdraw by writings to the party which shall in turn convey same to the commission in not less than 45 days before the election.
Section 36 empowers the Chief National or Resident Electoral Commissioner to countermand and postpone the polls where a candidate dies after delivery of nomination paper but before the polls.
Section 39:
"Subject to any provisions of this Act, if after the latest time for delivery of nomination papers and the withdrawal of candidates for an election under this act more than one person remains validly nominated poll shall be taken."
Section 40:
"A poll shall take place in accordance with the provisions of this Act with respect to the following, that is -
(a) in the case of an election to the office of President or Governor of a state, whether or not only one person is validly nominated in respect of such office."
The foregoing provisions of the electoral act like the constitution failed to provide for the present situation where a candidate dies during election whether on Election Day or in between election days in the case of inconclusive polls like the instant one. Thus, the commission could only have postponed the polls should the APC candidate have died before the polls and not during the polls.
This perfectly paints a clear picture of the conundrum in which we now are. It tells the story of the court's challenge such that we need not bother saying that it is not as easy as it seems as some have already demanded that we apply the proverbial and radical doctrine of necessity.
What is "necessity" here?
Is it a "necessity" to replace the deceased candidate with his running mate?
Such "necessity" would require some procedural if not substantive backing. A necessity does not emerge in vacuum to fill a lacuna. It is always applied from somewhere. Unfortunately there's nowhere we can find some backing for such necessity. It would be a travesty and bad precedent to do what the law did not intend in the name of necessity. After all we have not fully recovered as a nation from the last radical application of the doctrine of necessity.
When the law is surprised men also must not be ashamed to act surprised and when the law is insufficient men should show sufficiency of humanity to endure the incapacity of the their own making called 'law'. Replacing the deceased candidate with his running mate would in without prejudice to other opinions amount to political creativity less of judicial ingenuity.
The only way forward that will be most "less controversial" and more reasonable would be to conduct a fresh poll. That way all parties will be on equal pedestal.
This is what brings us to the judicial precedent of Rotimi Amaechi v INEC & Ors. where the Supreme Court has been notoriously accused of declaring in its infallible wisdom that elections are contested and won by parties not persons. The logic inferred from this judgement by this school would therefore mean that the commission may proceed with the polls and if the APC upon conclusion of the polls emerge victorious they would then decide who would be the governor and most expediently present the surviving running mate. However, the writer here opposes such campaign for sake of judicial and political posterity. The Supreme Court in Rotimi Amaechi v INEC & Ors must be noted declared that the appellant (Rotimi Amaechi) had his name wrongly and unlawfully changed. "In the eyes of the law he remained the candidate and this court must treat him as such" per Katsina-Alu JSC (delivering the Lead Judgment) this is ultimately why Rotimi Amaechi was declared governor. In this case, "who is the candidate in the eyes of the law?" Can the law be said to have the deceased as the candidate in its eye and his running mate a pseudo-candidate in its back-eye?
Parenthetically, attempting to replace the deceased with his running mate would be akin to borrowing the spirit of political jurisprudence of Awolowo v Shagari to do social engineering to another political emergency. But even Roscoe Pound the father of social engineering would agree here that the facts and circumstances differ.
Meanwhile, the political tension in the state is rising to a boiling point with rumors that the deceased was poisoned by some party chieftain who sponsored the candidate and single handedly nominated his running mate with the hopes of replacing him through some clandestine agenda now allegedly revealed to be death by poison since the deceased is said to have regurgitated sanguine fluid before giving up the ghost. This in some way may insight bad faith against the running mate which may translate to protest votes thereby making way for the Peoples' Democratic Party to win at the final polls. The challenge that such a twist will bring is another series of legal suits challenging the propriety of the commission in continuing with an election when there is no candidate for one party. This probably is where sections 39 and 40 of the Electoral Act may avail the commission some respite.
Hence, it is submitted that the court should be called upon right away to do the jurisprudence without delay like Katsina-Alu posited in Rotimi Amaechi v INEC & Ors "Wherever justice demands it, this court must rise to do justice without regard to technicality." Thus, while the PDP deserve some commendation for their maturity so far in showing solidarity of sympathy to the APC it is a little surprising that they have not already approached the Federal High Court with an Originating Summons asking the court to interpret the law and show the way forward on this development. And in accompaniment to this an application asking the court to stop the commission from concluding the election and ultimately demanding a fresh election. Of course, typical response to this would be to challenge the prop
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