KOGI ELECTION AND LEGAL LOGJAM

KOGI ELECTION AND LEGAL LOGJAM
BY PAT ANYADUBALU

The recent gubernatorial election in Kogi State has no doubt thrown up a constitutional logjam, a recondite issue that needs proper legal cogitation to arrive at a solution. The issue has thrown up many legal pundits with various and varied views expressed, unfortunately some of these views were not laced with legal authorities but based on limited knowledge of the law or biased position of the contenders.

Before I proffer my view, it is necessary to quickly clear some of these erroneous submissions.

The Attorney –General of the Federation or the State has no locus standi to seek for the interpretation of this issue at the Supreme Court.

The Supreme Court, being an appellate court, except in matters between States or between States and Federal Government, where it enjoys original jurisdiction.

Again, Section 133(1) of the Electoral Act 2010 as amended (referred herein after as “the Act”) says that no election or return at an election under this Act shall be questioned in any matter except by petition presented to the competent tribunal.

Also section 181 of the 1999 constitution as amended is also not applicable because no person has been duly elected. Those who refer to Boni Haruna’s case are missing the point because Boni Haruna’s case is not on all fours with the present Kogi case. In Boni Haruna’s case, the election had been concluded and Alhaji Atiku Abubakar and Boni Haruna were announced winners as Governor and Deputy Governor respectively unlike in the present case where nobody has been elected.

Rotimi Amaechi’s case is also inapplicable because, the Supreme Court’s decision in Amaechi’s case has been overruled through legislative enactment of section 141 of the Act which provides that an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said elections.

Another prominent view expressed by some legal practitioners is that the entire process should be cancelled and the election commenced a fresh.

This is also laced with another bottleneck because section 68(1)( c)  of the Act provides that a declaration of scores of candidates shall be final subject to review by a tribunal or court in an election petition proceedings under this Act, therefore INEC has no power to annual or cancel any result already announced.

Now what is the way forward for INEC?

I believe that since section 33 of the Act allows a political party to substitute its candidate whose name has been submitted upon death of the said candidate and section 36(1) allows INEC to countermand the election in the event of death of a candidate and conduct such election at convenient date within 14 days, I opine that INEC upon being notified by All Progressives Congress (APC) of the demise of its gubernatorial candidate should pursuant to section 33 of the Act ask APC to substitute the said candidate and  when that is complied, INEC should pursuant to section 36 of the Act conclude the supplementary election and declare a winner.

The above suggestion it should be noted is not fool proof in view of section 141 of the Act above.

This is because, whoever may be appointed as a substitute candidate will face the question whether he has fully participated in all the stages of the election as enjoined by the said section 141.

It really does not matter the position of the substitute candidate because the Governor and the Deputy are like siamise twins and what affects one candidate also affects the other. It is a joint ticket.

I am further encouraged in this suggestion by section 139(1) of the Act which provides that an election shall not be liable to be invalidated by reason on non compliance with the provision of this Act, if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.

It my humble submission that gubernatorial election will in most cases be challenged in court or tribunal much less this one that has raised dust. The court no doubt will have opportunity to take a decision on it.

Meanwhile our National Assembly has observed the lacuna and should therefore do the needful at the appropriate time.