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By
Matthew Osa-Oghogho and David Amakiri

 
The latest rounds of gubernatorial election in Nigeria in November 2015, especially in the State of Kogi, have raised certain novel issues; some for which there seem to be no particular provision of the law which covers them. For example, upon the death of a candidate in an election before the conclusion of that election, how will he/she be replaced? Should his party have the right to substitute the dead candidate? How should his votes be allocated? Would the candidate’s death be a ground for the election being declared inconclusive? Can the party or candidate with the next highest number of votes be declared Governor.
 
In this article we will be making a modest appraisal of the issue vis-a-vis the position of the law, howbeit in a somewhat inchoate state. We hope that during any ensuing election petition after the gubernatorial election in Kogi State, the courts will have the opportunity to deal decisively with these legal problems.
 
It is generally agreed that no particular section of the electoral laws in Nigeria deal directly with the question posed above. But solutions can be provided and sides taken based on a community reading of certain provisions of law.
 
One of such provisions is section 181 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 181 of the Constitution provides that when a person is duly elected into the office of Governor of a State but dies or is for whatever reason unable to discharge the duties of such office, the person elected with him as Deputy Governor shall be sworn in as Governor. Also Section 187 provides that a person shall not be validly nominated as a candidate for a governorship election except he nominates a running mate.



Many have argued (and in our view rightly so) that this provision should apply such that where a candidate in an election for the office of Governor of a State dies before the end of the elections, his running mate should step into his position as the main candidate while another running mate is chosen. A running mate is a partner in an election, more like the status of a wife. A candidate and his running mate are like athletes in a relay race such that one would readily handover to the other in any eventuality. Likewise should the running mate not pick the baton if the lead candidate cannot continue the race? Is he not a substitute at all times? From the moment he or she is picked and his or her name forwarded to Independent National Electoral Commission (INEC), a running mate in an election acquires a legal status. Thus as the Supreme Court held in Atiku Abubakar v. AG Federation , the Deputy is entitled to all the votes cast in the election for the ticket. He is a joint holder of the ticket and all the votes of the main candidate were cast for him as well. On this premise therefore, it would be proper to hold the view that the running mate to a candidate in an election ought to continue as the governorship candidate upon the death of the main candidate having contested and secured votes in the joint ticket. To hold otherwise and bring in a fresh candidate would in our view open a door that is akin to replacing the main candidate (were he to be alive) before the conclusion of the election.
 
The second issue to be addressed is whether the death of candidate to an election is a ground for declaring the election inconclusive. There is no law in Nigeria that permits INEC to declare an election invalid by reason of the death of a candidate. Section 178(2) of the Constitution provides that a ‘candidate’ is deemed to be elected as Governor of a State where there are two or more candidates and the candidate has polled the majority of the votes and must also poll a quarter of votes in two-thirds local governments of the State. These two frontline conditions are referred to in our constitutional law jurisprudence as the ‘popularity of votes’ and the ‘plurality of votes’ lawfully cast. INEC can also rely on other grounds to declare an election inconclusive. These grounds include a situation where the number of invalid votes exceed the number of valid votes or where the number of votes cast at the election exceed the number of registered voters.
 
Clearly,  the death of a candidate during an election in Nigeria poses novel legal issues that it will be appropriate to refer to such a situation as a priori within our body of laws.  But, as we have argued above,  a comity reading of a number of the provisions of law can proffer usable guidance to relevant stakeholders in guiding Nigeria’s electioneering process.



MATTHEW OSA-OGHOGHO,  
Chief Policy Officer, 
Advocacy International

YIBAKUO DAVID AMAKIRI, 

Contributor, 
Nigeria Law Today 

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