This report x-rays the issues thrown up in the Kogi governorship election following the death of Prince Abubakar Audu, who contested on the platform of the All Progressive Congress (APC) in the inclusive November 28, 2015 election and the different views expressed by different lawyers on the constitutionality or otherwise of the matter.
Background:
The death on Sunday, November 29, 2015, of Prince Abubakar Audu, the front-runner gubernatorial candidate in the Kogi election threw up a scenario that was not envisaged by the framers of the Constitution necessitating discussions at various levels of the polity.
Though the election has been concluded, with the replacement for Audu, Alhaji Yahaya Bello of APC declared winner by the Independent Electoral Commission (INEC), different stakeholders have described it as a wrong move which may not stand by the time a court pronounces on some suits before a Federal high court, asking it to determine whether INEC’s December 5, 2015 supplementary election is legal.
Already, about four people have been claiming to be winners of the Kogi election since the death of Audu. The incumbent governor of the state, Alhaji Idris Wada has asked the court to declare him winner of the election since he came second in the election; Audu’s running mate James Faleke, who has repeatedly refused to be Yahaya Bello’s Deputy, has also written to INEC to declare him winner of the election. Apart from the letter, he had also approached the court to compel the electoral body to declare him winner.
About two other candidates in the election have also approached the court seeking the order of the court to make one relief or the other.
If eventually, the court agrees with Faleke that he should be declared the winner of the election, since he is the next in line after Audu’s death, another constitutional question may be thrown up. The state may find itself in the situation the country found herself in 2015 when there was heated debate about the eligibility of former president Goodluck Jonathan to contest the 2015 election.
In the case of Faleke, observers are of the view that if the court rules in his favour and he is declared the winner, he may want to claim that he is completing the tenure Audu never began and may want to seek another fresh four years of two terms in office.
Inconclusive election:
Speaking about the position of the Constitution on the matter, Professor Auwalu Yadudu (SAN) of Bayero University Kano, argues, “What happened was that an election took place, results were being collated and the Independent National Electoral Commission (INEC), in the process of exercising its powers in the Constitution as well as in the Electoral Law, made a determination that as of the time they took that decision, the results were inconclusive meaning that they could not come to a determination as to who has won and lost.
“The trend of the voting clearly showed that APC was ahead with over 41,000 votes but there is a provision in the Electoral Act in section 53 which is to the effect that if INEC, for one reason or another, voids a voting process in any particular voting unit, it is of the view on the one hand that the total registered voters in that unit or those units as would determine the ultimate outcome of who is the winner or loser, then they can exercise the right to say the election was inconclusive.
“If they are, however, of the view that the total registered votes that were voided were not significant to affect the final determination of the results, then it can proceed to determine and declare who is the winner. In its best assessment of the situation, the 91 polling units which were outstanding at that time had a total of 49,000-plus registered voters and the APC was already leading with about 41,000 votes. INEC came to a determination that it would not be right to declare APC as the winner. Therefore, the decision they took, in my view, was the right one. A lot of people are of the view that the total registered voters are not usually all the people that turn out to vote. The law has to be followed and the law says, registered voters. It is conceivable that all the registered voters could turn up and if INEC declares otherwise, the aggrieved party could sue them in this case. I think the decision they took was sound in law and you cannot fault it.”
Deputy governor cannot claim the seat:
To further buttress his point, he says, “Let us all admit that what has happened in Kogi, which brought about the declaration of inconclusive elections, and the sudden death of the flag-bearer has not happened in this country and unequivocally catered for by the law. But doing something which is new, it is legitimate for all sorts of interpretations to be put on the existing provisions of the law. The deputy governorship candidate cannot claim to inherit the votes entered into for the deceased. Some arguments being made is that we should look at the Constitution, Section 181, which provides that if a governor dies after being duly elected, or he is for one reason or another not able to be sworn in, his deputy can then be sworn in.
“A clear provision of that section is where the governor has been duly elected, but unable to be sworn in or to discharge the functions of the office. In the case of Kogi, Prince Abubakar Audu, the gubernatorial candidate of APC died before he was duly elected; he would have been duly elected only if INEC said so based on the tally of votes and its reading of whether that has satisfied the provisions of the law. So, he had not been declared as having won and there was no basis for the deputy governorship candidate to inherit. He claims that as a joint ticket, he should be a beneficiary of the votes. It is for the courts to determine, but it would be very strange, he is part of a ticket as deputy governor and not as a governor. His deputising powers and inheriting capacity is only invoked when the elections are concluded and something happens to the governor in the case of death, impeachment or resignation.
“In this case, none of these eventualities happened and he cannot inherit the votes for the deceased governor. Now, the votes are cast for the party, not for Audu or Faleke. Therefore, it is for the party and what INEC did by inviting the party by asking it to replace the gubernatorial candidate was right because the law, again, in Section 31 of the Electoral Act clearly gives INEC the power to ask a party to substitute its candidate upon death, withdrawal of his candidature or for whatever reason, the party can be asked to nominate a substitute. In this case, one should not ignore the fact that the provision in Section 36 actually envisages a situation where, as happened in Borno State, a gubernatorial candidate nominated by a party is assassinated as it happened in 2011 and ANPP at that time was given an option to substitute its candidate. Even in this case, the section says a party can be given this option if this happens before the polling. You might say that polling had taken place and there is no other provision that says that the governor would be nominated.
“Actually, my interpretation of that section is that if you will give a chance for a party to nominate a substitute when its candidate dies before polling, with greater force, you should be able to extend the same privilege to a party where its candidate dies in the process of polling and before it is concluded. This is one way of looking at it. Another way is the section also says that the party has the right to substitute a candidate, the deceased or the incapacitated who would otherwise be participating in the election. In a way, polling is still in process and therefore there is a polling to take place in 91 polling units although we know we can conjecture the outcome of the election, the law is still clear that the party should be given the opportunity and it has been given an opportunity.“
Terms in office:
Dr Tahir Mamman, OON, SAN, explains, “The 1999 Constitution prescribes maximum two terms for elected executive office holders (president/governor) vide Ss 137(I) (b) and 182 (I) (b).”
He argued, “This period commences from when they subscribe to the Oath of office and Allegiance. The President/Governor is required to have a deputy as a prerequisite for his election.
“Where therefore the President/Governor ceases to be the holder of that office on grounds of death, resignation, impeachment and disability, the deputy automatically assumes the office. The issue now is after serving out that period and possibly a second term, whether or not the balance of that first period will be counted to determine the eligibility of the candidate for a further term.”
The legal luminary stressed that: “The deputy in the present circumstance was a part and parcel of the ticket and the government ab initio. Drawing from the analogy of Boni Haruna, the succeeding deputy, run a government that jointly belonged to his former boss and himself. How long that government lasted is irrelevant. He will therefore not be eligible to contest beyond the two terms fixed in the Constitution.”
He added: “The second scenario is where vacancy arose due to absence of both President/Governor and their deputies and an election is organized to fill the slots. The Constitution clearly stipulates that those elected will serve out the unexpired period..146 (2) & 191 (2).
“In this scenario, the new elected official was never part of the previous government. His status, although enjoying all the powers and paraphernalia of the office would appear to be interim, contingent one. It would therefore appear that the elected official in this case will be eligible to run for two terms after serving out the residue of period of the former government.”
Dr Castro Ginigeme, esq. legal practitioner (Nigeria and USA), has this to say: “Well, it would seem to me that if the president is unable to assume office, for whatever reason, as provided for in Section 136 of the constitution, before taking the oath of office, then the Vice president-elect will be sworn in as predident. It will thus be his first term. He may be reelected for one more term. But if the president dies in the middle of his term, the VP who is taking over to complete the late president’s term, will not be said to have done his first. I think in that case, he is still entitled to be eligible for 2 elections in his own right.
“A good example is from the US. On November 22, 1963 president John Kennedy was assassinated in Dallas, Texas and his VP Lyndon B Johnson was sworn in as president, to complete that term..Johnson stood and won election in 1964.. and was eligible for re-election, in his own right, in 1968..but decided, on his own, not to run for reelection..I think it was that principle that former president Jonathan was following in 2015, when he ran and lost against President Buhari.
“He had completed former president Yar’dua’s tenure in 2011. He ran and won that year in his own right. He failed his reelection bid in 2015. Don’t forget, despite denials, the 1999 Constitution is mirroing the US presidential constitution, in substance, doctrines, interpretation methods and case law at least since 1979.
Section 181 (1) has a similar scenario for a governor who does not take the oath of office, for whatever reason, i.e dies, before taking the oath of office.”
Yadudu on his part, explains: “There is a lot of contention around term limits for the executive in Nigeria. Meaning, when can you say, a succeeding is said to serve a full term of four years? It has happened in this country where a governor dies one year-plus after taking office, and his deputy succeeds him and that is in Yobe State. It has happened also where a president dies after serving for two years and about ten months in office and his vice succeeds him as in the case of Yar’Adua and Jonathan.
“There is a school of opinion which says that when a deputy governor or vice president succeeds his boss, they should be taken as having served the term of the principal and they are ineligible to serve two more terms. Now, the reason is that the Constitution says a president or a governor is ineligible to be sworn in more than twice. My view is that the constitutional provision is such that would entitle a succeeding deputy regardless of the year or month he or she serves his succeeding predecessor and the term of office would be ascribed to him, that first term should be ascribed to him.
“This view has not been tested as there were suits filed against president Jonathan and there were different views taken. There was a view taken by a lower court that the remaining term of Yar’Adua which he served should not be counted as a term and that he is eligible for another two terms. That matter went to the Court of Appeal and it agreed with that view but it is still at the Supreme Court. Someone is challenging, believing like I do, that to do so would be violating the constitutional provision because then you will be allowing the vice president to be sworn in more than twice and to do more than two terms for which the Constitution has made provision for. And again, a similar case has been filed against Gaidam of Yobe although it has not gone far. I think that clarity is needed for the provision and it would be a matter that when next there is a constitutional amendment, we should look at that more clearly.
“The US from which we have copied the presidential system was confronted with a similar incidence. In their own case, it used to be governed by conventions. Conventionally, presidents would serve two terms and do not go for an additional third term. It so happened that one president was very popular and he went for a third term and the whole nation rose up against that and an ammendment, the 22 ammendment was passed to be very clear in the sense that if a vice president succeeds a president for obvious reasons, if the president had served for two years and a day, the remaining period the vice president spends would not be counted as a full term. However, if the president has done two years plus one day, that would be considered as a full term but if a vice president succeeds a president who has done less than two years and one day, that would not be counted as a full term.
“So, in this case of President Jonathan, if we had such an amendment, it would have clearly been declared eligible because president Yar’Adua had done more than two years but in the case of Gaidam, if there was such an amendment, he would have been treated as having done the first term of Mamman Ali because he succeeded him after only a year and a few months. We may borrow this constitutional amendment of the US too and to make it clear, we may choose the exact words that they used.”
A professor of law and senior advocate, Chief Awa Kalu, said the intention of the crafters of the Constitution is a four-year tenure of two terms and not oath taking.
“The tenure of a governor and his deputy or a president and his vice, according to the 1999 Constitution is four years of two terms in office. In the case of Kogi State, if the deputy governor is eventually declared as the person that should take over from the late Audu, he will be in office for the next four years and if he is re-elected, he will remain in office for another four years. He can’t be heard to say that he will complete the tenure Audu never began and then begin his own fresh tenure after four years.
“I’ve said it before now that the number of times you took oath of office does not matter. Those who crafted the Constitution emphasised more on four years’ tenure and a maximum of eight years in office upon re-election.”
Goodluck Jonathan scenario:
The General Secretary of Labour Party and an Abuja-based lawyer, Barrister Olukayode Ajulo, said the case of former president Jonathan and the late president Yar’Adua are completely different scenarios to what we have in Kogi now.
According to him, Yar’Adua was already serving and he dies along the way. So, there must be somebody to complete the tenure. He said in the case of James Faleke, he is going to spend a full term in office with the demise of Audu.
“The first oath of office taken by Jonathan was to complete Yar’Adua’s tenure. Faleke has a full circle of four years. If Faleke is sworn-in now, he will be spending complete four years in office since Audu did not take the oath of office before he died. And it would be unfair to say that he is completing the tenure which Audu never started in the first place.”
Relationship with Jonathan scenario:
About two months before the 2015 Presidential election, the Court of Appeal, Abuja Division, ruled that president Goodluck Jonathan has only taken oath of office once and therefore upheld his eligibility to contest the presidential election fixed for March 28. The court held that the oath of office Jonathan took in 2010 was to complete the “unexpired tenure” of late president Umar Yar’Adua.
The appeal was brought before the court by Cyriacus Njoku, who was challenging the ruling of the High Court of Federal Capital Territory, Abuja which on March 1, 2013 dismissed the suit he filed to stop Jonathan from contesting the 2015 polls.
In a lead judgement by Justice Abubakar Yahaya, the full panel of the court unanimously held that Jonathan had only spent one term in office as president going by the provisions of the Constitution.
Jonathan was empowered as acting president on February 9, 2010, following a motion for “doctrine of necessity” by the Senate, owing to the protracted stay of the late President Umaru Yar’Adua in Saudi Arabia for medical treatment.
When Yar’Adua eventually died on May 5, Jonathan was sworn in as president. He was elected president in 2011. Njoku had submitted that Jonathan had sworn an oath of office and allegiance twice and therefore, should be disqualified from contesting the next election as victory would amount to being sworn in thrice.
But the court ruled that the oath Jonathan took in 2010 was to complete the unexpired tenure of the late Yar’Adua, adding that by virtue of Section 135 (2)(b) of the Constitution, Jonathan took his first oath in May 2011. Moreover, it held that disqualification is through election, not oath taking.
The judgement read in part: “In this appeal, it is not controverted by the appellant that the first oath taken by the first defendant (Jonathan) was the oath he took as the Vice President and not as President.
“But he took the oath in May 2010 to complete unexpired tenure of the late Umaru Musa Yar’Adua.
“Section 37 (1) (b) disqualifies a person from contesting for president if he had been elected twice. Disqualification is through election and not oath taking. Election is a process of choosing a person to occupy a position by voting. When election is given its literal meaning, it connotes when a voting is employed to choose a person for political office.
“This did not take place when Jonathan stepped into the shoes of his Principal who went to the great beyond. To say these things were done is to import words not used by the Constitution. Section 146(1) of the Constitution cannot be deemed an election for a VP to step into the office of a President.
“Election involves conducting primaries by party, nomination, election and announcement of results. All these processes were not done. If a VP succeeds a President that dies, that cannot be challenged. It is a mode of stepping into the vacant office provided for by the Constitution.
“When a President dies, the Vice President automatically becomes President as provided for by S130 (1) (2) of the 1999 Constitution.”
It further held, “It was not election that produced the first respondent in May 2010, the oath he took then was not an oath of elected President as provided for by Section 180 of the Constitution.
“The process of election was followed in 2011. The oath of office taken in 2011 was the first oath taking by the first respondent as an elected President having fulfilled all the process of election.”
The court therefore upheld the decision of the lower court which dismissed Njoku’s suit for lack of locus standi.
It noted, “It is fundamental that where a party lacks locus, the court cannot assume jurisdiction.
“We agree with the lower court that the appellant has no locus to sue,” the court held. On the cause of action, the court held that the case of the appellant was “speculative and imaginary as none of the reliefs he sought accrued to him any benefit”.
Need for Supreme Court pronouncement:
Professor Yadudu, as the need for Supreme Court interpretation said: “Certainly, there is the need for interpretation by the highest judicial organ, not sanity but to establish a precedent and to develop our constitutional system. Otherwise you can imagine how absurd it would be if the election that took place in Kogi, for example, where the governor-elect dies even before his inauguration or one month into his term; it will be absurd to ignore the constitutional provision which gives chief executives term limits of four years twice. This candidate, if you do not clarify that provision, the succeeding governor will be able to do a full four year term and can say he is eligible for another two terms. Conceivably, this is what the scenario will pose. It may happen that a governor dies before taking office or soon thereafter taking office and the succeeding deputy governor should not be allowed to enjoy and to violate the provision of the constitution which is two terms of four years. I would wish that the Supreme Court would make a pronouncement on that and if no pronouncement is made, I would want to see the relevant aspects of the Constitution amended to make it very clear as the 22 amendment of the US has done to their own system.”
Need for Constitutional amendment:
“Why not? I know that they take time, maybe they do not even arrive at a constitutional amendment expeditiously; but this kind of problem is so urgent and fundamental, if the judiciary has not made a definitive pronouncement on the issue, there will be a need for a constitutional amendment. Do not forget that the problem brought about by Yar’Adua’s absence from office and his failure to declare that he has gone on leave to enable Jonathan to take over was attended to through the doctrine of necessity. What we have now in the constitution has gone beyond the doctrine of necessity because the relevant section has been amended in the Constitution to make it clearer that if the governor or president leaves office for more than 21 days, without any reason and indicating anyone to act, by the operation of the law, the deputy governor or vice president should be allowed to step in. In an acting capacity and if after a certain period has elapsed, and the principal has not resumed, he would be confirmed in the principal’s position as the case may be. What happened in Taraba with Suntai and Garba was in compliance with and in line with the amended Constitution, not on the basis of the doctrine of necessity. Yes, the constitutional provision can be amended to specifically address this problem we have faced in Kogi and in the case of Yar’Adua and Mamman Ali in Yobe,” said Yadudu.
-Leadership
