Two legal practitioners have declared that the death of the gubernatorial candidate of the All Progressives Congress (APC) in Kogi State, Abubakar Audu, has exposed a lacuna in the constitution.
In separate chats with DAILY POST Sunday night, the duo described the development as “unusual”, which Section 181 does not address.
According to 181 (1) 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.
(2) Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the inauguration of the house of Assembly, the Independent National Electoral Commission shall immediately conduct an election for a Governor and Deputy Governor of the State.
A lawyer, Paul Edeh, in his reaction said “Obviously, the death of Audu has exposed a lacuna in our constitution which only the court can resolve.
“This has never occurred in Nigeria’s history so it is peculiar.
“Audu’s deputy, James Abiodun Faleke would only be in a position to be declared winner, if Audu had been announced as winner before he passed on.
“But as it is, Faleke cannot replace him because the election was inconclusive.
“APC held a primary that produced Audu the valid candidate. It was he who nominated his deputy, Faleke. As it stands now, APC has no candidate.
“If the APC decided to elevate Faleke to its governorship candidate without INEC or the court ordering it, they may regret because PDP will go to court and argue that APC had no valid candidate.
“And the sad truth is that PDP may win because we had a similar case in Rivers.
“The court declared Rotimi Ameachi winner because he successfully argued that he, not Celestine Omehia was the valid canidate.
“Also look at Taraba, the APC argued that the PDP did not conduct a primary. In APC’s words, PDP did not have a valid candidate.
“The Tribunal declared the APC candidate, Mama Taraba, winner because it believes that PDP had no candidate.”
“Looking at what has happened now, PDP may be coasting home if APC go ahead in this election because the court may later upturn their victory in the event they win.
Another lawyer based in Abuja, Barrister Yunusa, said Section 173 (3) of the 1999 constitution as amended may be applied.
It says: “Where in an election to the office of Governor of a State one of the two or more candidates nominated for the election is the only candidate after the close of nomination by reason of disqualification, withdrawal, incapacitation, appearance or death of the candidates, the INEC shall extend the time for the nomination.”
Yunusa opined that: “This section may be applied so that the APC can conduct another primary to elect another candidate.
“From my point of view, the election being inconclusive may be cancelled because one of the candidate is dead.
“I expect INEC to come out with their position. But whatever they say would be argued in court by any of the parties that contested for at least one of them will feel aggrieved.
“That said, I expect a legal battle. On this issue, the court will have the final say.
“It is now clear that the National Assembly must start work to include this kind of scenario in the constitution.”
DAILYPOST
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