The bible gave humanity one of the most touching stories. At a time the ruling dynasty gave a supreme proclamation that all male children born of the Jews must not live to see the next day. They should be strangulated by the nurses that assisted in their birth. It however, recorded the birth of Moses, who arguably by divine intervention, escaped the rather harsh decree when, in an attempt to save his life, his mother kept him in a basket and hid him among reeds in the river bank, hoping that he would be saved. Her dream came through as Pharaoh’s daughter who pitied and adopted him. He grew up as a royal but had to escape when it almost came to the fore that he was not an Egyptian and that indeed, he acted against the interest of his adopted parentage. He grew up and was eventually chosen by God to lead Israelites out of Egypt to the Promised Land. He did except that by some divine design, he saw the land but never got in himself.
Abubakar Audu, the mayor of Kogi politics, can boast of a slightly similar experience. Born of Igala extraction, Audu who began his political journey in 1986 as Commissioner for Finance and Economic Planning in the Old Benue state won his first election as first Kogi governor in November, 1991 and was sworn in January the following year. By the time the Ibrahim Badamasi Babangida midwived democracy ended, he managed to find his way back to power in 1999. As he did the first time, he was in charge for only one term, a reason he became qualified for a third shot. He was coasting to victory when news hit that stands that the result had been declared inconclusive by INEC. But just as the news declaring the election inconclusive was gaining traction, he was proclaimed dead. Like Moses, he saw the Promised Land but failed to be part of those who entered it.
Already, Abubakar’s death is creating an unprecedented political debate, being the first of its kind in the annals of the country’s political history. It is also billed to generate an equally interesting constitutional crisis as nothing in the country’s statute envisaged it. Hitherto, section 181 of the 1999 constitution, which deals with modalities for sorting out vacuums created by the unavailability of a governor, did not exactly have the Kogi scenario in mind. The section deals expressly with a situation where the affected candidate is already elected.
According to sub section 1, “if a person duly elected as governor dies before taking and subscribing the oath of allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as deputy governor shall be sworn in as governor and he shall nominate a new deputy governor who shall be appointed by the governor with the approval of a simple majority of the house of assembly of the state.
Sub section 11 states that “if after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner or Resident Electoral Commissioner shall, being satisfied of the fact of death, countermand the poll in which the deceased candidate was to participate and the commission shall appoint some other convenient date for the election within 14 days.
A close examination of its import indicates that though it has no express provision for the situation in Kogi state, no part of it, not even sub section 11, rules out the possibility of the deputy succeeding him. For instance, Audu did not die before the election contested by the joint ticket between himself and his deputy. Under the ticket, he completed the legal process of delivering his nomination papers and contested the election which was not voided but declared inconclusive only to the extent that results were invalid in certain areas where bye elections will now be conducted. More importantly, it is instructive that in areas where votes were valid and counted, the ticket was in the lead and would require more of an unlikely miracle for its opponent to overcome. Among other questions therefore, can either the Chief National Electoral Commissioner or Resident Electoral Commissioner justifiably order a re-election beyond that which was necessitated by invalid results or can both assume that there is enough provisions in section 181 to dismiss the deputy governor as his successor?
Festus Keyamo, a legal icon in his right, is of the opinion that the excitement generated by the demise of and who replaces the Kogi governorship candidate is unnecessary as there are enough provisions in section 181 (as amended) to sort the issues out. According to him, there is no reason why James Abiodun Faleke should not replace Audu automatically. His reason is that though the election in inconclusive, votes have been counted and allocated to parties and candidates, including the Audu/Faleke joint ticket. In a nutshell, the joint ticket makes it mandatory that Faleke is as much entitled to those votes already counted as the late Audu and has a right to cling to those votes going into the supplementary election.
Keyamo’s only challenge is that of who nominates the next deputy. In his opinion, Faleke is not in a position to nominate one because he is not duly elected yet, a situation which reasonable leaves that role to his political party.
In a slightly different way, there are precedents that may guide us. In 1999, Abubakar Atiku was elected governor of Adamawa state. However, before being sworn in, he was nominated as vice president by former President Olusegun Obasanjo. To fill the vacuum, Boni Haruna, his running mate took over from him.
Again, the case between Celestine Omehia and Rotimi Amaechi can be of help. Amaechi emerged candidate of the PDP from the governorship primaries conducted by the party. But he was later substituted by same a reason for which he sort the position of the court. In the end, the Supreme Court gave judgement in his favour. The point to note in the case is that after the judgement, the need to change his deputy governor did not arise because it was a joint ticket. Once more, the same apex court may be the one to finally put the controversies to rest.