In this report, AHURAKA YUSUF ISAH writes on how the unprecedented political development in Kogi State where a governorship candidate died before election result was declared has been taken care of by the Sepreme Court and the 2010 Electoral Act under amendment.
On March 30, 2017, the senate adopted report of its committee on INEC and consequently passed the Bill for an Act to Amend the Electoral Act 2010 and for other related matters after its third reading.
The Bill to amend the Electoral Act of 2010 included a proposed legislative remedy for the perceived mischief or ambiguity caused by the death of a candidate after the commencement of elections and before the declaration of a winner by INEC, as was the case during the Kogi gubernatorial election. In other words, it is a legislative response to the judgement of the Supreme Court in SC.648/2016; otherwise called Faleke Vs INEC & Yahaya Bello.
The amendment to Section 6 of the Electoral Act 2010 saw the insertion of a new Sub-section 3 which provides: “If after the commencement of a poll and before the announcement of the final result and declaration of a winner, a nominated candidate dies, (a) the Commission shall, being satisfied of the fact of death, suspend the election for a period not exceeding 21 days; (b) the political party whose candidate died may, if it intends to continue to participate in the election, conduct a fresh direct primary within 14 days of the death of its candidate and submit a new candidate to the commission to replace the dead candidate; and (c) subject to paragraphs (a) and (b) of this sub-section, the Commission shall announce the final result and declare a winner.”
While giving reason for dismissing the appeal filed by Hon. James Abiodun Faleke at the Supreme Court against judgement of the Court of Appeal sitting in Abuja, Justice Kudirat Motonmori Olatokunbo Kekere-Ekun of the Supreme Court had this to say:
“This appeal was heard on Tuesday 20th September 2016. On that day I dismissed the appeal and promised to give my reasons for doing today, the 30th September 2016.
It all began when in preparation for the Kogi state Governorship Election scheduled for November 21, 2015, the All Progressive Congress (APC) held primary elections on August 29, 2015 to choose its flag bearer. Several members of the party, including the late Prince Abubakar Audu and the incumbent Governor Yahaya Bello contested the said primary whereas the late Prince Abubakar Audu emerged the winner while Governor Yahaya Bello came second. The appellant (Faleke)herein did not take part in the primary election.
Having won the primary election, the late Prince Audu nominated the appellant, Faleke as his running mate and both names were submitted to the INEC, the 1st respondent herein, by the APC as its candidates for the governorship election. The election was held as scheduled on 21/11/2015. At the close of the polls, the late Prince Audu/Faleke ticket was leading with 240,867 votes while the PDP was in second place with 199, 248 votes. However, as a result of certain electoral malpractices discovered to have occurred in 91 polling units, the 1st respondent (INEC), relying on its Manual for Election Officials (updated version) by a Public Notice issued on 22nd November 2016 declared the results of the election inconclusive on the ground that the total number of registered voters in the disputed 91 polling units where elections had been cancelled, which was 49,953, exceeded the margin of votes between APC and the PDP, which was 41,353 votes and could therefore affect the final outcome of the election.
Unfortunately, Prince Abubakar Audu passed on, on 22nd November 2015 before the conduct of the supplementary election. The news of his demise was communicated to the 1st respondent (INEC) vide a letter dated 23rd November 2015. By a letter dated 24th November 2015 INEC requested the APC to substitute the deceased with a suitably qualified candidate. The APC substituted the deceased with the 2nd respondent, Yahaya Bello, who had come second in the party’s primary and notified the 1st respondent-INEC accordingly.
The supplementary election took place on 5th December 2015 in the 91 polling units. The APC, with the 2nd respondent as its new candidate, scored 6,885 votes as against 5,363 votes scored by the PDP, its closest rival. The votes were added to the votes earlier scored by the respective parties on 21st November 2015 and the 2nd respondent was declared the winner of the election and returned as the duly elected Governor of Kogi state.
Faleke’s petition at the election tribunal and subsequently on appeal was anchored mainly on the construction of Sections 179(2) and 181 (1) of the 1999 Constitution as amended. He specifically asked the Supreme Court to declare that Yahaya Bello could not rightly appropriate the votes cast for the joint ticket of the late Prince Abubakar Audu and himself at the Governorship election of 21/11/2015.
However, Justice Kekere-Ekun held that Sections 179(2) and 181 (1) of the Constitution are not self-executing. ‘’There must be a declaration or return of a candidate ads the winner of an election before the sections becomes applicable, and to hold otherwise would lead to a situation where anyone could declare himself as the deemed winner of an election, which would certainly lead to anarchy.
‘’….there was no declaration or return of any of the candidates who participated in the election of 21/11/2015 as winners having regard to the declaration of INEC that the election was inconclusive’’, Justice Kekere-Ekun maintained.
‘’Having discovered electoral malpractices in 91 polling units in the state, it was proper for the 1st respondent- INEC to consult and apply the provisions of its Manual to determine the next course of action in the circumstances. I do not agree with Chief Olanipekun (SAN), with due respecvt that to resort to its manual amounted to a flagrant disregard of the supremacy of the constitutional provisions as contained in Section 179 (2).
Justice Kekere-Ekun said Chapter 3 paragraph 3.11, step 14 of the Manual for Election officials (updated version) at page 325 of volume 1 of the record provides that the State Collation/ Returning Officer for the Governorship for the ’’Final Collation and Declaration of Governorship Election at state level shall:
Step 14 : ‘’Where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s)…’’
‘’The provision is clear and straight forward and did not require a foray into any other provisions in the Manual for it to be effected. There is no dispute as to the fact that the margin between the votes scored by the late Prince Audu and the appellant (Faleke) on the one hand and Capt. Wada and Arch. Awoniyi, on the other hand was 41,619, which was less than the total number of registered voters in the 91 polling units where votes were cancelled. I therefore agree with the court below that the 1st respondent- INEC was correct to have declared the election inconclusive on the basis of the number of registered voters in the 91 affected polling units’’.
For any electoral officer to base his consideration on the number of registered voters who had collected their PVCs or the geographical spread of the votes already cast, the learned jurist said would have been wrong. ‘’Neither the court nor learned counsel is entitled to read into provision what it does not contain’’
‘’The election conducted on 21/11/2015 was inchoate until after the conduct of the supplementary election of 5/12/2015 which brought the entire process to conclusion.
‘’It follows therefore, that as the appellant (Faleke) and Prince Audu were not returned as duly elected, there was no basis for the application of Section 181 (1) of the Constitution, which allows a Deputy Governor elected with a duly elected Governor to step the Governor’s shoes in the event of death or any other factor leading to his inability to subscribe to the Oath of Allegiance and Oath of Office’’.
‘’It must be remembered that the appellant and the 2nd respondent are both members of the APC. I agree with the concurrent findings of the two lower courts that by virtue of Section 221 of the Constitution and Section 137 (1) of the Electoral Act, the APC being the party which would be declared the winner in the event of their success at the polls as per Amaechi Vs INEC (supra), the said APC had a legal interest in the votes cast on 21/11/2015 and was entitled to substitute a candidate of its choice to contest the election to the conclusion. I agree with J.B.Daudu (SAN) that the votes garnered by the Prince Audu/Hon Faleke ticket on 21/11/2015 were votes garnered on behalf of the political party and therefore the issue of transfer of votes did not strictly arise, Justice Kekere-Ekun held.
In the appeal No. SC.674/2016 between Capt. Idris Ichalla Wada & 2 Ors Vs Yahaya Bello &2 Ors, former Governor Idris Wada asked the Supreme Court to hold that Yahaya Bello did not secure lawful majority votes on the ground that he did not participate in all the elections and in all the stages of the elections and cannot by mere merger of votes and inheritance of votes from deceased candidate (Prince Audu) and consequently declared as Governor of Kogi state. He said Section 141 of the Electoral Act is a direct response to Amaechi Vs INEC (2008) 5 NWLR (Pt1080) (p.222) and Agbaje Vs INEC (2016) 4 NWLR (Pt.1501) p.151, and therefore could not be relied upon to justify Yahaya Bello’s accession to governorship seat.
Justice Nwali Sylvester Ngwuta who dismissed Wada’s appeal led the 7-man panel and also read the lead judgement in this appeal and stated that ‘’it is my humble view that the declaration contemplated in Section 141 of the Electoral Act is a declaration of a petitioner who has successfully challenged the declaration of the INEC in favour of his opponent, the respondent’’.
In Appeal Nos SC.689/2016, that is Labour Party Vs Yahaya Bello, Justice John Inyang Okoro who read the lead judgement did not take time to dismiss it, saying ‘’Having resolved the only issue on which both parties exchanged arguments in favour of the respondent, the only thing remaing for me to say is that this appeal is devoid of merit and is accordingly dismissed’’.
Justice Musa Dattijo Muhammad, also in appeal No. SC,687/2016, filed by African Democratic Congress (ADC) Vs Yahaya Bello and two others without ADC’s flag bearer in the 2015 Kogi state governorship elections, consequently dismissed the appeal. ‘’The incompetent appeal is resultantly struck out’’.
Against the backdrop of 14th April 2007 governorship election in Rivers State, the PDP held its Primary election to elect its flag bearer. Rotimi Amaechi participated alongside others and convincingly won by scoring 6,527 out of the total votes of 6,577, whilst the others scored 28, 10, 6 and 4 respectively. Three others scored zero each. Curiously, the PDP substituted Amaechi with Celestine Omehia who even did not participate in the primaries organized by the party PDP; with former President Olusegun Obasanjo saying Amaechi has “k-leg”.
When Amaechi noticed what the party did, he went to the court to seek redress. The matter finally got to the Supreme Court; and by 25th October 2007, the apex court declared the substitution as illegal, null and void and of no legal efficacy. On Friday January 18, 2008, while giving reasons for its earlier judgment on October 25, 2007, Justice George Oguntade who read the lead judgement, held that Amaechi having been validly elected in the PDP primaries remained in the eye of the Law, the candidate who contested the governorship election. Consequently, he ordered Omehia be removed and swear-in Amaechi as Governor of Rivers state immediately.
Even when Omehia went back to the Supreme Court asking it to reconsider the judgement; saying it amounts to a mistake by the learned jurists to declare Amaechi as a governor when he never contested the governorship election, in his characteristic sarcastic comments, Justice Oguntade who headed 7-man to review the re-appeal, told Omehia the apex court didn’t make any mistake in the decision, and even if it was, the apex court has the right to make a mistake. As the final court, Omehia was only left to take its case to God.
For politicians who were angry with the court for declaring a person who never stood for an election called for legislative “redress’’. Hence Section 141 of the Electoral Act was produced in 2010; stating that “An election tribunal or court shall not under any circumstance declare any person a winner of an election in which such a person has not fully participated in all the stages of the said election’’.
In the same manner, reactions against the Supreme Court decision affirming Alhaji Yahaya Bello’s governorship, rather than Faleke or Wada has prompted the federal legislators setting out to avert in the future the possibility for other ‘’Bellos’’ been substituted for ‘’deceased Prince Audus’’.
But for now, the governorship of Yahaya Bello, which has bearing from nature’s comedy at its best; and akin to a dice of fortune tossed from the windmills of the gods, remains just as Amaechi remained for eight years.