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Tuesday, 24 November 2015

Falek should be Audu’s replacement – Akande





Frontline lawyer and Senior Advocate of Nigeria (SAN), Chief Niyi Akintola, has said that the late Abubakar Audu’s running mate in last Saturday’s governorship election, James Falek, should be presented as replacement.
According to the Senior Advocate, a “simple internal arrangement of the party to substitute the dead candidate will suffice and there will be no eligible aspirant with locus standi to challenge that under section 187 (9) of the Electoral”.
He further added: “The defeated aspirants in the original primaries had no surviving interest derivable from the death of the APC candidate once he emerged.”
Akintola said, “the person with the nearest interest will be his running mate. Because his nomination as guber candidate became valid only upon nomination as running mate. See s.178 of the constitution. Their ticket became joint – and under principle of joint survivorship, the death of one vests the internet in the survivor absolutely. Their interest would only become separate after the election. Abubakar v AG federation . 2007. NWLR .
“In this case although final result had not been declared (or questionably declared inconclusive) equity looks on as done that which ought to have been done. Deputy steps in and nominates a new deputy as though he had been sworn in. The provision of section 140 of the Act forbidding return of a person who did not participate in election related to adjudication of disputes concerning election – not dispute as to whether a person elected has assumed office or ceased to be elected.
“The constitution addresses that solely to the exclusion of the Electoral Act. In this regard it is a matter between Deputy Governor-elect and his party”.
Akintola pointed out that even if it was to be accepted that the election has rightly been adjudged inconclusive, there was still a way out of the logjam. “It is necessary that the APC quickly forward the name of new running mate to INEC to contest along with Deputy Governor-elect as successor to late Prince Audu in the supplementary election. Otherwise they would have contested the election to conclusion without their successor candidate having a running mate. That would render him disqualified and pave way for PDP candidate or any other rival party to challenge the election on ground of disqualification. See Dingiyadi v Wamakko. 2008.”
He however faulted the decision of the Independent National Electoral Commission (INEC) to declare the election inconclusive, stating insists that such a conclusion could only have been arrived at from a position of ignorance, intellectual laziness or both.
In a short exchange with Daily Sun, Chief Akintola pointed out that there are ample instances and inferences the electoral commission could have drawn from Nigeria’s recent experience to guide it in making the appropriate decision. His words:
“In his declaring the Kogi State election as inconclusive, I think the SRO (State Returning Officer) got it wrong . The yardstick of margin of voters in the areas where election was canceled, or did not hold, should have been given a purposive interpretation . See PDP v INEC (1999) the Atiku – Boni Haruna case. This is by reference to number of voters eligible to vote as of the date of the election- i.e number of voters who collected PVCs for the election in the affected polling units .
That’s, on the average, about 70 per cent, which comes to 35, 000 of the 49, 000 registered voters”
Akintola said if the electoral commission had done this simple deductions, it would have been clear to it that Abubakar Audu clearly won the election and that there was no need to cloud issues with an elusive 49,000 votes.
“The margin of win by APC over PDP was 41, 000. That is 6,000 more than the number of eligible voters, having regard to ineligibility of voters without PVCs to vote. A return should have been made,” Akintola further explained.
Although the legal luminary was silent on the fact that the average turnout, even in places where election took place was less than 40%, and therefore, there was even no way all the voters with PVC would come out to vote, he further argued: “The purpose of the provision for supplementary election was to assuage disenfranchised voters whose votes could have counted. Not to scuttle an otherwise decisive electoral outcome”.
On the effect of the death of Audu on the planned supplementary election, Akintola insists that the need does not arise.
Hear him: “The right to countermand election on the death of a guber candidate does not apply after election has held. Election held and votes had been cast and counted at each polling units in Kogi State as at Saturday 21st November. What was going on thereafter was mere collation, up until Sunday November 22nd. The electorate had thus spoken. If the outcome was rightly adjudged deadlocked then the election was inconclusive. It then reverts parties to the status quo ante. As a party cannot participate in an election without a candidate, the party, at that stage, does not have to embark on a primary and hold the electoral process to ransom – it will be incongruous with the intendment of the Electoral Act, to keep opposition parties waiting while the bereaved party goes through the motion of a fresh primary and giving INEC fresh notice of congress outside of INEC electoral timetable”.
According to the Senior Advocate, a “simple internal arrangement of the party to substitute the dead candidate will suffice and there will be no eligible aspirant with locus standi to challenge that under section 187 (9) of the Electoral”.
He further added: “The defeated aspirants in the original primaries had no surviving interest derivable from the death of the APC candidate once he emerged”.
Akintola said that “the person with the nearest interest will be his running mate. Because his nomination as guber candidate became valid only upon nomination as running mate. See s.178 of the constitution. Their ticket became joint – and under principle of joint survivorship, the death of one vests the internet in the survivor absolutely. Their interest would only become separate after the election. Abubakar v AG federation . 2007. NWLR .
“In this case although final result had not been declared (or questionably declared inconclusive) equity looks on as done that which ought to have been done. Deputy steps in and nominates a new deputy as though he had been sworn in. The provision of section 140 of the Act forbidding return of a person who did not participate in election related to adjudication of disputes concerning election – not dispute as to whether a person elected has assumed office or ceased to be elected.
“The constitution addresses that solely to the exclusion of the Electoral Act. In this regard it is a matter between Deputy Gov -elect and his party”.
Akintola pointed out that even if it was to be accepted that the election has rightly been adjudged inconclusive, there was still a way out of the logjam. “It is necessary that the APC quickly forward the name of new running mate to INEC to contest along with Deputy Governor-elect as successor to late Prince Audu in the supplementary election. Otherwise they would have contested the election to conclusion without their successor candidate having a running mate. That would render him disqualified and pave way for PDP candidate or any other rival party to challenge the election on ground of disqualification. See Dingiyadi v Wamakko. 2008.”

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