The KOGI State Gubernatorial Election Saga: When The Law is Silent - A Common Sense Analysis. (With Updates)

The Governorship election in Kogi State was inconclusive as per INEC, because of irregularities at some Polling Units. Therefore, the ongoing debate about succession process as a result of the death of one of the candidates is a moot point. The deceased candidate was never at any time declared the winner. So, until INEC reverses itself and declares Prince Abubakar Audu the winner, a development that is very unlikely, we cannot be discussing the constitutionality of his running-mate or deputy becoming the next Governor elect. The election is yet to be won. Succession question or debate is irrelevant at this point in time.

Right now there is a void. INEC cannot continue with the election when APC does not have a candidate. Even if a Supplementary election is called by INEC, APC does not have a candidate in the race that is a product of Section 87(4) of the 2010 Electoral Act. Mr. Faleke cannot step into the shoe of Prince Audu for three reasons. One, he is not that person as contemplated by S 87(4) of the Electoral Act. Two, he is not a running-mate to a duly declared winner of a Gubernatorial race. And three, he is not a Deputy to a duly elected Governor.

From all indications, and novel as it is, INEC is traversing a tempestuous legal terrain given the fact that neither the 1999 Constitution (as amended) nor the instant Electoral Act contemplates any of the scenarios generated by the sudden death of Prince Abubakar Audu - the candidate who ran on the APC ticket. However, it is my hunch that PDP may likely carry the day unless there is a fresh election or a creative Supreme Court thought it fit to vest Mr. Faleke with Prince Audu's rights and responsibilities.

Section 87. Nomination of Candidates by Parties.

(4) (b) In the case of the nomination to the position of Governorship candidates, a political party, where they intend to sponsor candidates

(i) hold special congress in each of the local government area of the state with delegates voting for each of the aspirant at the congress to be held in designated centers on specified dates;

(ii) the aspirants with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to INEC as the candidate of the party, for the particular state.

As at this morning, November 23, 2015, APC does not have that candidate in the race in Kogi State. Unless, of course, Mr. Faleke is able to prove and convince the court that the joint ticket with Prince Abubakar Audu inures or enures to his advantage - a position that PDP and non-Yoruba ethnic groups in Kogi State will find uncomfortable to swallow.

In addition, it is very likely that PDP will not accede to any decision of INEC requiring it to wait while APC takes steps to overcome the primaries hurdles in accordance with the Electoral Act. 

As events unfold, the major issue that the Supreme Court would have to resolve besides the sustainability of the Audu/Faleke ticket is whether INEC and APC can construe the provision of Section 33 (death of a candidate) to justify the introduction of a new candidate, without recourse to Section 36(1), which covers the time frame during the election process, when introduction of a new candidate on the ground of death is excusable. In other words can INEC or APC avail itself of the provision of Section 33, independent of, or in isolation of the requirements under Section 36(1)?

Please find below, Section 33 and Section 36(1) of The Electoral Act, 2010.

Section 33. Political parties changing candidates

No Political Party shall be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this of this Act, except in the case of death or withdrawal by the candidate;

Section 36. The death of a candidate.

(1) 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 the Resident Electoral Commissioner shall, being satisfied of the fact of the 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. .

In other words, death must occur after the time of the delivery of the nomination paper and before the commencement of the poll, not when the election process is evolving as we witnessed in the Kogi's case.

Doing What Judges Do:

Judges are known or reported to have changed their minds as a case develops or in the course of drafting their final judgment. And that is the delicate situation I find myself right now. When I began writing this piece, Mr. Faleke was the last person on my mind as the most favored candidate of all the contenders in the evolving saga. However, the more I write, the more I read the relevant sections of the Constitution and the Electoral Act, and the more I reflect on them, the more I begin to realize that it is him that the crown fits, and to do otherwise is courting injustice. My approach was simple; I applied the process of elimination, starting with the non-viable options.

From all indications, PDP can only win if INEC stops the process. And that is an unrealistic proposition. In similar vein, for APC and INEC to win, they would have to convince the Supreme Court that Sec 33 and Sec 36(1) of the Act are independent of each other - meaning, the time frame under Sec 36(1) is not applicable in construing or applying Sec 33 in a given case.  In addition, they would have to prove that the Audu/Faleke joint ticket is not sustainable beyond the demise of one of the parties - meaning no transferability of rights and responsibilities until INEC declares the election conclusive. 

So, on the issue of whether Mr. Faleke is the most favored contender by the Act or the Constitution to inherit the Audu/Faleke joint ticket and the vote counts, is to ask the question whether the joint ticket has become legally vested prior to the death of Prince Audu or only at the declaration of the Returning Officer? It is my humble opinion that both law and equity will suffice in resolving that question, and probably, in his favor. I hold this view not necessarily because the joint ticket has a commanding lead in the poll, but for the fact that the death of Audu, sudden as it is, did not in any shape or form alter or erode the fundamental principle of having a running-mate on a given ticket. That fundamental principle is the right to deputize and to assume the lead role in the event of death, resignation or impeachment of the senior partner (the Governor, as in this case).

One, they have substantially performed and the outcome was a convincing lead, the alleged irregularities, nevertheless. And two, to transfer this mandate to a new import, when the battle has been fought and won is like arguing that the Audu/Faleke joint-ticket was illegal as formed. In other words, to question the right of Mr. Faleke to assume the vacated position in the ticket is to question the constitutionality of the formation of the ticket. The ticket was formed and perfected in accordance with the Act and the Constitution. That's it. It does not need further act in the course of the election to garner validation or perfection. So, the continued reference or the question of compliance or noncompliance with the requirements under Sec 87, when Mr. Faleke is already validly on the ticket, is vitiated.

Therefore, the fact that INEC did not make a declaration, to wit that APC has won, as I opined in my intro, is irrelevant. The very moment that APC submitted the names of the two candidates to INEC in accordance with the Electoral Act and the Constitution as running-mates, both candidates automatically acquired vested and unconditional interests, with respect to the rights and responsibilities associated with the joint ticket. Inherent in these rights and responsibilities is the capability/constitutionality of Mr. Faleke to step into the Governorship role in the event of death, resignation or impeachment of Prince Abubakar Audu. In other words, INEC or APC pronouncement is immaterial, when construing the ability of Mr. Faleke (the lawful running-mate) to assume the interests created by the demise of Prince Abubakar Audu.

Above all, given the fact that the reason given by INEC for declaring the election inconclusive is factually and legally flawed, the best alternative is to give unto Caesar what belongs to Caesar. INEC's theory for declaring the election inconclusive is unambiguous - the decision was based on the difference between the number of registered voters in the polling units where irregularities occurred and the difference between the vote counts scored by PDP and the vote counts scored by Audu/Faleke joint ticket. The acceptable standard morally, legally, reasonably, and equitably speaking, is the number of the electorates accredited, properly screened, and eligible to vote on that particular day for the Governorship election, not the population of voters registered to vote at the enumerated local government areas for every election. I beg to hold. Globally, the focus is on the intent of the legislation - what the drafters intended, the ills to preempt or the lacuna in the electoral system to fill -  when construing the meaning of a given legislation to a given occurrence. 

According to Premium Times of November 22, 2015 “… the Returning Officer, Emmanuel Kucha (Vice-Chancellor of the University of Agriculture, Makurdi), Abubakar Audu of the All Progressives Congress scored 240,867 while Idris Wada of the Peoples Democratic Party garnered 199,514 votes. Mr. Kucha said the margin of votes between Messrs Audu and Wada is 41,353. And that the election was inconclusive because of the total number of registered voters in 91 polling units, in 18 local government areas, where the election was canceled is 49,953. That figure is higher than the 41,353 votes with which Mr. Audu is ahead of Mr. Wada.” See "INEC declares Governorship Election Inconclusive."

Granted, the Electoral Act talks about voters "registered to vote", but we should take cognizance of the fact that at the writing of the 1999 Constitution (as amended), PVC or Card Reader mechanisms were not in vogue, at least, in Nigeria. What the drafters intended was an unhindered universal adult suffrage - meaning, those eligible to vote must be allowed to vote or given the opportunity to vote before a given election is declared conclusive. In other words, PVC and Card readers are directly and indirectly the mechanized architects of that electoral objective, because they made the process near perfect. Hitherto, you are eligible to vote simply on the basis of your registration to vote. Not anymore; presently, you can only vote, if you are cleared to vote. Basically, Card Reader has taken the shine off from the voters' register. And I have no doubt in my mind that the Supreme Court will recognize that latest development in global adult suffrage. Once again, what was the intention of the drafters? It matters. I humbly submit that the term "registered to vote" as intended in calculating the vote counts difference between the top two candidates and the canceled vote counts, in a practical sense, has been overtaken by events (electronic means). But the underlying principle is constant and sacrosanct, and it is fundamentally consistent with the values inherent in the application of PVC and Card Readers in our electoral system. One is the extension of the other. Therefore, PVC and Card Reader should be the reference point. I beg to hold.

Alex Aidaghese

UPDATE: The issues that I addressed in this essay are not the say issues that the defeated party in the suit presented before the court. 

Foreign Legal Issues Can Inform U.S. Courts, Breyer Says | News | The Harvard Crimson

"The best way to preserve American values is to try help deal with these problems, and that requires a little participation and at least knowledge about what’s going on outside our own boundaries,” said Breyer, a former professor at Harvard Law School and the Kennedy School

Leadership Challenges in Nigeria: Crafting a New Benchmark For Performance Evaluation

A DISCUSSION FORUM PART ONE:

"When cabinet ministers are appointed in September, it will be some months after I took the oath of office. It is worth noting that Obama himself did not have his full Cabinet in place for several months after first taking office; the United States did not cease to function in the interim." - Culled from "Nigeria Committed To Good Governance And Fighting Terror", The Washington Post, July 20, 2015. By President Muhammadu Buhari.

President Buhari promised to appoint Ministers by the end of September. He did not appoint Ministers by the end of September as he promised. Sending a Ministerial list to the Senate for screening and approval by the end of September is not the same as appointing Ministers by the end of September. Without mincing words, I have problem with the process.

If I may add, using President Obama’s experience as a benchmark as the President did in his Washington Post op-ed piece on July 20, 2015, lacks foundation in facts and in reasonableness. Any delay experienced by President Obama was a delay, thanks to the machinations of an intransigent GOP. Not self-induced as in our case.

Much as I tried to cut my President some slack on his reference to President Obama, the fact that he did not meet the September deadline that he publicly set for his administration at the the global stage reinforces the emerging doubt about his ability to conceptualize the enormity of the office and the expectations, domestic and international, inherent in modern public sector governance. Most importantly, ours is a dynamic nation-state - always in motion. It is not 1983.

The President and his team have an onerous battle ahead of them. It is not going to be "what about Jonathan or Obasanjo", and "what they did or didn't do as Presidents while they were in office." The standard is going to be "what is President Uhuru Kenyatta of Kenya doing." It is about "how President Obama reinvented himself to reinvent America." Above all, it is going to be, "if late Chief Obafemi Awolowo and his team could do it in the 50s and early 60s, you and your team must be able to do it." 

Let's take a look at President Obama on his first day at the Oval Office. 

At his first inauguration, President Obama was confronted with an economy that was near comatose. The American financial market was, economically defined, ruined; overwhelmed by the ills of an unregulated, overambitious, and untouchable Wall Street that prides itself as the custodian of Capital Hills.

President Obama was saddled with the task of resuscitating a Mortgage industry that overpriced itself into oblivion and an auto industry that suffered both global and domestic rejection. At the same time, America was fighting two wars in the Middle East, channeling taxpayers' money into a conquest whose end date was an exercise in sheer conjecture. And on the side, was a Senate, populated by Republicans, telling whoever is willing to hear that their goal is to make the new President, a one-term President - a country where prayers and wishes for a popularly elected President to fail in office became the norms rather than the exceptions. He was set up to fail. You were celebrated, honored, like a King in the making. 

Indeed, President Obama was new to power and new to the intricacies of Washington DC. But you were once a Head of State, and a buddy of IBB, Obasanjo and Danjuma - the triumvirate who own this country.

Twice, you ran to be President. Third time around you won. You are a quintessential Nigerian power broker, celebrated elite of the elites. Mr. President, you have been around! Obama was not. 

Above all, President Obama is a black man, and by nature, doubted and resented in his own country. And you are a Fulani, and by Nigerian standard, revered and respected.  Sir, once again, there is no basis for comparison. The author of that op-ed is living in the past. He deserves more tutorials on contemporary global politics and the Obama factor. 

Former President George HW Bush's biography, as reported few days ago by the press, is coming out soon, and in it, the President is reported to have slammed his son's Vice President, Mr. Dick Cheney, "of building his own empire" and Mr. Donald Rumsfeld, the Defense Secretary "for lacking humility and not willing to see what other guy sees." With all due respect, Mr. President, I pray that this new Book be of a timely read for you. In other words, beware of Advisers who specialize in remaking failures as virtues - those who are not willing to see what others are seeing on the ground. 

Moving Forward:

Few weeks ago, it was widely reported that Mr. President told his subordinates and the Ministerial nominees to always tell him the truth, no matter the situation. Specifically, I saw Barrister James Ocholi (SAN), one of the Ministerial nominees emphasizing that demand from the President, while speaking with a TV Reporter. In light of the not so encouraging developments surrounding the appointment of new Ministers, I would like to ask what would happen, if those in position to advise the President as per the truth, lack the intuitive capital to read and interpret the situation on the ground and advice the President accordingly.

When that happens, as it is always the case in Nigeria, the President is denied useful information. In that case, there is a vacuum in the system that no one in the Presidency is aware of. And that is the evolution of mediocrity - our bane as a society.

For instance, there was a noticeable improvement in power supply immediately President Buhari came into office. Thanks, of course, to the much hyped "body language." Today, power supply is at its worst since my arrival in Nigeria about six months ago. As I write the lines at the gas pump are getting longer. Boko Haram is once again on the rampage with brazen bravado, undaunted. And it is no doubt, worse than six months ago.

Indeed, we did embrace the new slogan in town: "no more business as usual." Yet, nothing has changed. In hindsight, the solution is not just the rejection of the culture of "business as usual," but defining a new benchmark for performance evaluation and raising the standard of engagement across the board. In other words, what is the nature of change that we want? That leads us to the next question.

How do you raise the standard of engagement or define the new benchmark, when those who are in position to advise and make a change are ignorant of the existence of a lacuna in the system? That is the problem. That is our problem as a nation-state. President Obasanjo was not a great President, but he is today defining the standard. So, who define the standard? And how do we fathom the existence of a vacuum in the political process? The press. Yes, the press, through constructive criticisms, supported by the people, through mass protest.

On the other hand, if indeed the President has credible and audacious Nigerians around him, with the requisite faculty to read and interpret the situation on the ground and advise the President accordingly (telling him the truth), but change as understood by the President and his core counsellors is inconsistent with emerging trends or what obtains in advanced climes, and the President is therefore, unwilling to accommodate the truth, then we have a problem at hand - the making of a dictator. It is the same as not having advisers at all.

By the way, President Jonathan, honest as he might have been, didn't grab the mood in the country and the expectations of a modern Nigerian nation-state. And that should have been the responsibility of his kitchen cabinet, who turned out to be bunch of local DJs.

And that brings us to the second question: how do we eliminate a vacuum created by a recalcitrant President? First, the Advisers should remain steadfast and be consistent in standing for what they believe is right - the truth. They should not be docile about confronting the President's kitchen cabinet openly with facts and figures on issues where there are differences. However, in the absence of any substantial improvement on the part of the President (unwilling to be convinced), they should not hesitate to do the ultimate: resign.

Given the fact that resignation by Advisers or Ministers is not a Nigerian corporate culture, the press, once again, must step into the void, through consistent and constructive criticisms, supported by the people, through mass protest. Yes, for the Change to be meaningful and result-oriented the Press and the Nigerian people must be ready to reject packages clothed in deceit aimed at suffocating informed views.

So, it is my conclusion that raising the benchmark shouldn't just be about slogan. It is about action. And that is what this essay is about - defining a purposeful benchmark. It is about vision and creativity. And that's why President Obama is a success story, today.

He started by asking question another President would not have asked. How come ordinary Americans cannot afford quality and affordable healthcare? And what must we do to ensure availability and affordability? How can we simplify educational funding to make it accessible to poor American families? What is more important to do: fighting two wars and depleting the national resources, and be lauded and be vilified at the same time as the Policeman of the world, or stay away from war without end and invest the saved resources at home? You know the answer. And today, the American economy is better off for it.

Still on Obama - he did not bail out American State Governors or supported them in paying any outstanding workers salaries and wages as President Buhari just did in Nigeria few months ago. His bail out was to the Auto Industry and Wall Streets, knowing full well that a vibrant auto industry and a buoyant, but regulated Wall Street will go a long way to creating synergy that will spiral to other sectors of the American economy and catalyze sustainable growth. And it happened.

It's about common sense. First is the ability to know that something isn't right and then, ask questions. Awareness matters. Visions matter.  

Common Sense and Management Practices Benchmarking: Questions The Presidency Should be Asking.

Minister and Special Advisers should be able to ask  themselves this simple question. How come our newly constructed highways do not meet the test of time or withstand the forces of nature in more than three years? The Ministry of Works and all the respective government agencies responsible for awarding contracts involving road construction and maintenance and the contractors are jointly and collectively responsible for the state of our roads, both state and federal roads. It is about the quality of the job done - the asphalt level from the base of the ground. Granted, I am not an Engineer, but it is very easy to analyze the thickness of the asphalt concrete that they deposited on the ground at locations where you have potholes on our highways. 

You do not need to have a PhD in Engineering or Road Construction to fathom that. Enough of the Dangote Trucks excuses. You cannot pour bitumen on the ground and expect it to last. The contractors involved know exactly what he is doing and what the deal is. And the relevant staffs of the Supervisory Ministries know what to expect as compensation for the lousy job performance. Sadly enough, these same contractors or companies are most often rewarded with better and more lucrative construction contracts.

Now to the telecom sector; how come telephone companies are raking in millions of Dollars in profit yearly, yet they cannot develop new technology to overcome reception or network related problems in Nigeria? By the way, how come it cost more to make phone call in Nigeria than it is in Ghana or Egypt? Yet, we have better reception in South Africa, Ghana and Egypt.

Talking about Egypt! How come for the duration of the Arab Spring protest as the world witnessed in Downtown Cairo, there was never a night of blackout? Yet, we are economically richer and more powerful than Egypt.

Today, it is about petroleum products and the price of crude at the international market, and we have no control over their availability. What is wrong with our refineries? Is it too much for the President to declare a state of emergency in the sector and summon the Nigerian Society of Engineers with an open cheque and a mandate to find permanent solution to all the problems associated with refined petroleum products at home?

And talking about gas pipeline and power (electricity) distribution: which is safer and less costly to transport or distribute? The answer, without any doubt, is electricity. In that case, power plants should be constructed along the coast of the Niger Delta. We know that that was not what the Obasanjo administration did. The advantages of building power plant closer to sources of gas is self-explanatory. I do not want to dwell on that here. Suffice it to say that funds wasted on monitoring of gas pipelines should have been put to a better use in other sectors.

By the way, why do we have Customs Officers manning road-blocks on interstates highways, while our border posts are left unmanned? Is Nigeria too big to govern? Get these guys out of our highways.

And why must Police Officers continue to solicit for money with righteous intent and a sense of entitlement from helpless Nigerians on our streets and highways, when the Force Headquarter doesn't know what to do or how to profitably invest the colossal Pension Funds ceaselessly pilfered, squandered and embezzled by those trusted to manage it?  

And if I may ask, what does it take for a Minister of Education to make the declaration that under his or her watch a regular Academic Year must run from the first week of September to the last week of May of the following year in accordance with acceptable global standard. In that case a purposeful fundamental framework for strike free regime must be developed to ensure that ASUU and Non-Academic Staff Union are comfortably catered to.

And on the issue of the Judiciary, I cannot understand why in this 21st Century judges in our courts still take notes in longhand, yet we never stop to complain about justice delay and justice deny? 

So, it is not about slogan. It is about concrete steps towards ensuring change.

Today, we are worried; worried, because the price of crude oil per barrel at the international market is abysmally below projected benchmark. The question then is why are we in this state, when a Nigerian, in the person of late Chief Obafemi Awolowo, as the Finance Minister of this great country, successfully managed the nation's financial resources throughout the civil war, without borrowing a dime? Was Papa Awo not a Nigerian? Yes he was. What exactly did he do? And how did he execute such a spectacular feat? Those are questions that President Buhari and his Chief of Staff should take the pain to ponder over and seek credible answers.

In similar vein, how was it possible for Action Group to build such first class infrastructural facilities, free health care and free education at all levels, without the oil money in the old Western region of Nigeria? Did they invite heavenly bodies to assist them? They never did. Nigerians did. And we can do better, if President Buhari is willing to reinvent himself and reinvent Nigeria in the process. That was what President Obama did. And that was what Papa Awo and his followers did.