Falana: INEC Should Declare APC Winner of Kogi Election

A human rights lawyer, Mr. Femi Falana, yesterday asked the Independent National Electoral Commission (INEC) to declare the All Progressives Congress (APC) the winner of the November 21, 2015 governorship election in Kogi State.

Falana, a Senior Advocate of Nigeria (SAN), argued that the INEC had to review its position to fix December 5 for supplementary election if the claim that the number of disenfranchised voters in the state who have PVCs and are qualified to vote is less than 41,300.”

He explained why INEC should declare the APC the winner of the process in a statement he issued yesterday due to protracted controversies over the death of the APC candidate, Prince Abubakar Audu and INEC’s decision to declare the process inconclusive on Sunday had generated.

Before the process was declared inconclusive, the INEC had declared that over 90 per cent of the returned votes in which Audu scored 240, 867 votes while the state governor, Capt. Idris Wada, who contested on the platform of the Peoples Democratic Party (PDP) polled 199, 514.

Consequently, the INEC decided that a supplementary election should be held for 49,953 voters in areas where votes were cancelled on December 5, though Audu’s death had stoked diverse legal questions whether the INEC should continue with the re-run or the entire process be nullified.

But of the 49,953 votes the two leading candidates would be contesting for in a supplementary election, only 25,000 voters collected their permanent voters cards (PVCs) while the APC is already leading by 41, 300.

Based on the vote difference, the human rights lawyer disagreed sharply from the positions of legal luminaries, who had already either canvassed the completion of the process or called for its outright nullification.

He therefore sought a review of INEC’s decision to fix December 5 for supplementary election if the number of disenfranchised voters in the state who have PVCs and are qualified to vote is less than 41,300.

“If the claim is confirmed, the INEC should not hesitate to declare the APC the winner of the election. The case of former Adamawa State Governor, Mr. Boni Haruna will apply. However, if the number of the disenfranchised voters is higher than 41,300, the INEC should proceed and conclude the election which may be won by either of the two parties.”

In PDP vs INEC, Falana argued that the Supreme Court held that although the governor-elect, Alhaji Atiku Abubakar who had resigned “to become the vice-presidential candidate had not clinically died, he was deemed to have died in law.

“The apex court directed that the deputy-governor elect, Mr. Boni Haruna be sworn as the governor of Adamawa State.

“In the instant case, the conclusion remains inconclusive. Likewise, if the APC wins the election, the deputy governorelect will become the governor while a new deputy governor will be nominated by him and approved by the Kogi State House of Assembly,” Falana said.

He added that the provisions of other relevant laws and decided cases on assumption of office by co-owner of joint tickets as well as the experience of the United States with respect to the death of candidates during elections should also guide the INEC in resolving the legal quagmire.

He said while Section 36 of the electoral Act allows the INEC “to countermand and postpone an election if a validly nominated candidate dies before the commencement of poll, Section 181 of the Constitution allows a deputy governor-elect to become governor if the governor-elect dies before inauguration.

“Notwithstanding that there is no provision in the law for the death of a candidate in the middle of an election the INEC is not totally helpless in the circumstance. Having declared the election inconclusive the INEC is duty bound to conclude the election within 7 days in line with section 179 of the Constitution.

“It is submitted that once the results of an election have been declared, whether conclusive or not, the INEC has no power to cancel same as the power to cancel any result so declared is vested exclusively in the governorship election petition tribunal.

“As the APC cannot be allowed to substitute or replace the nomination of Audu at this stage of the electoral process, the INEC is legally bound to conclude the exercise. The question of falling back on the results of the primary election conducted by the APC does not arise as it conflict with section179 of the Constitution.”

He also urged the INEC to base its decision of the Supreme Court in the case of Amaechi v INEC (2008), where it was held that elections “are won by political parties which sponsored candidates .

“Since the APC which sponsored the late Audu is deemed to have led the PDP by 41,300 votes, there is no legal basis for cancelling the results of the election as both parties are competent to take part in the supplementary election to be conducted by the INEC.

“In other words, the INEC is not legally disabled from concluding the governorship election notwithstanding Audu’s unfortunate death. Since the governorship and deputygovernorship candidates of the APC jointly contested the election pursuant to section 187 of the Constitution, the votes scored by the party in the inconclusive election remain intact and untainted.

“Those who have called for the cancellation of the results of the inconclusive election as a result of the death of Audu have failed to realise that the rights of other candidates who participated in the democratic exercise, including the deputygovernorship candidate of the APC, have accrued.”