Audu died shortly after the commission declared the election inconclusive on Sunday.
In the Saturday election, the APC candidate had polled 240,867 votes, 41,353 votes higher than the Peoples Democratic Party candidate and incumbent state governor, Capt. Idris Wada (retd.), who scored 199,514 votes.
In separate letters on Thursday to the INEC Chairman, Prof. Mahmood Yakubu, and the National Chairman of the APC, Chief John Odigie-Oyegun, Faleke’s lawyer, Chief Wole Olanipekun (SAN), sought the immediate declaration of his client as the governor-elect for Kogi State.
Olanipekun said to the best of his client’s knowledge, information and belief, the November 21 election, having substantially satisfied the requirements of the Electoral Act 2010, was deemed concluded.
He said Faleke saw no reason why INEC should have declared the election inconclusive, adding that the reason adduced by the electoral umpire for its action was alien and unconstitutional.
He believed that by directing the APC to conduct a fresh primary to elect another candidate for an election, which was already concluded, INEC was knowingly or unknowingly instigating political and legal conundrums, which the commission should have distanced itself from.
“We may draw Mr. Chairman’s attention to the clear and mandatory provision of Section 68(1)(c) of the Electoral Act to the effect that any result declared by the Returning Officer shall be final and binding, and can only be reviewed or upturned by an election tribunal,” Olanipekun stated in his letter to Yakubu.
“In effect, the results already announced by INEC are binding, not only on all the parties, but also on INEC itself.
“We want to believe that INEC is not unaware of binding decisions of our appellate courts on this issue. Furthermore, by the provisions of Section 181(1) of the Constitution, our client, who was the deputy governorship candidate and the associate of Prince Abubakar Audu at the already concluded election, constitutionally and automatically becomes the governor-elect of the state.’’
Faleke’s counsel added, “With further respect to INEC, cancellation of election results by it cannot be grounds for declaring any election as inconclusive. INEC is enjoined to declare a winner of an election based on lawful votes cast. Thus, the cancelled results by INEC, for whatever reasons, and assuming without conceding that INEC could legitimately cancel such results, amount to unlawful votes.
‘‘In effect, INEC cannot declare a well conducted election as inconclusive based on unlawful votes.
‘‘What INEC should do is to obey, respect and comply with the letter, spirit, intendment and tenor of the Constitution, by not only declaring APC as the winner of the election, but by also declaring our client as the Governor-elect.
‘‘In law and logic, no new candidate can inherit or be a beneficiary of the votes already cast, counted and declared by INEC before that candidate was nominated and purportedly sponsored. Assuming without conceding that INEC is even right to order a supplementary election, the votes already cast, counted and declared on Saturday and Sunday, 21st and 22nd November, 2015 were votes for the joint constitutional ticket of Prince Abubakar Audu and our client. Therefore, no new or ‘supplementary’ candidate can hijack, aggregate, appropriate or inherit the said votes.’’
He added that any attempt to embark on the proposed supplementary election would be challenged by his client.
In his letter to Odigie-Oyegun, Olanipekun urged the APC not only to support Faleke in the actualisation of the mandate already given to him by the party but to also distance itself from the “Greek gift” being offered to it by INEC, to conduct a fresh primary with the view to producing a candidate for the scheduled supplementary election ‘‘where only about 25,000 PVCs are available; whereas the APC is already leading, by the announced results, with over 40,000 votes.’’
He said, “Needless reminding Mr. Chairman that by the announced results, APC scored 240,867 votes, while PDP polled 199,514. The cancelled votes amount to 49,953. Under Section 61(c) of the Electoral Act 2010, once a Returning Officer announces and declares the result of an election, his declaration is final, and can only be reviewed or upturned by an election tribunal. In other words, the scores already announced for APC remain final and binding.
“Section 181 (1) of the Constitution again comes into play under the present circumstances, vis-à-vis the death of Prince Abubakar Audu. The section is all-embracing, as it covers all institutions and reasons. It mandates, in no unmistakable language, that the deputy governor-elect shall take over and be sworn in.
“By parity of reasoning, the APC shall be declared as the winner of the election by INEC, while our client is declared as the governor-elect.”
PDP seeks Wada’s victory, heads for court
PDP, on its part, has said it will challenge the decision of INEC in court to declare the November 21 Kogi State governorship election inconclusive.
The party, after its National Caucus meeting in Abuja on Wednesday night, said it was wrong for the commission to allow the APC to present another candidate following the death of its former candidate, Prince Abubakar Audu.
The PDP also called on INEC to declare its candidate, Wada, as the winner of the inconclusive governorship election.
According to the party, the APC has legally crashed out of the election, following the demise of Audu.
These were contained in a communiqué issued after the PDP’s National Caucus meeting.
The communiqué, which was read to journalists in Abuja on Thursday by the party’s spokesman, Mr. Olisa Metuh, said the pronouncements of INEC and that of the APC on the election were illegal.
The communique read in part, “In order to save the nation’s democracy from imminent collapse, the PDP, as a critical stakeholder, will immediately challenge this unlawful and unconstitutional decision by INEC in the court.
“With the death of its candidate, Prince Abubakar Audu, the APC has legally crashed out of the governorship race as no known law or constitutional provision allows the substituting of candidates, once the ballot process has commenced.
“With the unfortunate death of Prince Abubakar Audu, the APC has no valid candidate in the election, leaving INEC with no other lawful option but to declare the PDP candidate, Capt. Idris Wada, as the winner of the election.”
PDP also alleged that the leadership of INEC, under the chairmanship of Prof. Mahmood Yakubu, had demonstrated that it was incapable of maintaining neutrality, and as such, could not be vested with the responsibility of conducting the Kogi State supplementary election as well as the December 5 Bayelsa governorship election.
The party added, “(PDP) notes that the combined reading of the provisions of the Constitution and Electoral Act does not in any way whatsoever support the substitution of candidates for election in the middle of the ballot process.
“(PDP) notes that if the APC is allowed to substitute its original candidate, then the party would have fielded two separate candidates in the same election, a scenario that is completely alien to our electoral laws and to any known democratic norms and practice the world over.”
The communique stated that the caucus demanded the immediate resignation of the chairman and all national commissioners of INEC to pave the way for a new non-partisan commission to conduct the forthcoming elections.
It said, “Caucus also demands the immediate resignation of the AGF, Malami, for deliberately misleading INEC into arriving at the unconstitutional decision of allowing the APC to substitute its candidate in the inconclusive election.
“Caucus also alerts that the AGF, INEC and the APC are creating a scenario where a loser in a primary will patiently wait for the winning candidate to finish election and then have him either poisoned or assassinated before the final collation of results.’’
APC fails to release modalities for fresh primary
Meanwhile, hope that the APC might come out with a timetable on the modalities for picking a replacement for the late Audu failed to materialise on Thursday as the party was unable to resolve the issues that would lead to the emergence of its candidate in the December 5 supplementary election in Kogi State.
It was learnt in Abuja on Thursday that the party leaders, who had been holding a series of meetings since Tuesday, were said to be weighing their options.
The National Chairman of the party, Chief John Odigie-Oyegun, at the end of one of such meetings in Abuja on Thursday, said, “We will not say anything until we conclude the ongoing process.”
Odigie-Oyegun equally failed to respond to the argument of the PDP that it would be illegal for the APC to field a new candidate in the supplementary election.
A chieftain of the ruling party, who spoke on condition of anonymity because he was not authorised to speak on the issue, said, “The issues at stake are not issues that people can take a decision on without due consultations. The party has to consult its legal team, party leaders, including the President as well as consider ways of blocking all the possible loopholes which the opposition may exploit. It is a tedious process and we must be meticulous.”
At the first meeting by the NWC on Tuesday, Odigie-Oyegun explained that the party would proceed with the process of organising a fresh primary to provide a substitute to the late Audu.
Kogi East endorses Audu’s son, Mohammed
Meanwhile, the leaders of the APC in Kogi East Senatorial District, have nominated Mohammed, the first son of the late state’s APC governorship candidate, Audu, to replace the deceased as the party’s governorship candidate in the supplementary poll.
The leaders, stakeholders and delegates, who made this known in Lokoja on Thursday after their meeting, said they arrived at the decision after due consultations.
Their spokesman, Mr. Daniel Isah, who is the Vice Chairman of the APC in Kogi East, said they had resolved to back Mohammed as a replacement for his father if the National Working Committee orders a fresh primary.
“We don’t have any other candidate to field other than Mohammed Audu. We have all endorsed him and he is eminently qualified as a card carrying member of the party. We have communicated this position to the National Working Committee for onward transmission to INEC,” he said.
Isah commended INEC and the national leadership of the party for the opportunity given to them to find a replacement for Audu, who died on Sunday at Ogbonicha, Ofu Local Government Area of Kogi State, shortly after the electoral umpire declared the Saturday poll inconclusive.
He appealed to the national leadership of the party to give their decision utmost consideration and approval in the overall interest of the party and the state.
Present at the meeting were Alhaji Lincho Ocheje, Hassan Omale, Benjamin Ikhani and Senator Emmanuel Dangana, among others.
The Kogi State Publicity Secretary of the APC, Abdulmalik Sulaiman, believed the party leaders in Kogi East endorsed Mohammed as a replacement for his father because the 43-year-old businessman was perceived as highly competent to be the state’s governor.
The PUNCH had exclusively reported on Thursday that the APC leaders in Kogi State were rooting for Mohammed as the party’s governorship candidate.
Sulaiman stated, “I can conform to you that the leaders of Kogi East Senatorial District of the APC have adopted Mohammed Audu. Mohammed is more than qualified to be the next governor of Kogi State. He is a successful businessman. He is mature enough and has all it takes to lead a state. The APC family is willing to have him.”
PDP Reps advocate Supreme Court’s interpretation
However, the PDP caucus in the House of Representatives on Thursday said the only solution to the controversy thrown up by the Kogi State governorship election was a resort to judicial interpretation by the Supreme Court.
It maintained that any other suggestion by the AGF, asking INEC to proceed with a supplementary poll would later haunt the country if the proper thing was not done in the current situation.
Speaking at the National Assembly after a meeting of the caucus, the PDP lawmakers accused Malami of “misleading” INEC into adopting his position instead of the electoral umpire going to the Supreme Court for a “proper interpretation to know the best way forward.”
The Minority Leader of the House, Mr. Leo Ogor, who spoke on behalf of the caucus, demanded a withdrawal of the statement by Malami, in addition to apologising to Nigerians.
He described Malami as “speaking more like the Attorney-General of the APC than the Attorney-General of the Federation.”
Ogor claimed that the minister used sections of the 1999 Constitution (as amended) that bore no relevance to the Kogi situation to make his pronouncements.
He added, “We believe that the Attorney-General of the Federation clearly misled INEC and the nation in general.
“First and foremost, the attorney-general referred to Section 221 of the constitution viz a viz Section 3 of the Electoral Act, where he directed INEC to continue with an election where somebody, with all respects due to the person, died in the process.
“The laws that the attorney-general quoted have no relation with the various issues on the ground.
“Section 221 borders clearly on the modalities in which votes can be canvassed by the political party.
“Section 33 of the Electoral Act states very clearly that where a candidate in an election or in a primary dies before the election, the option is there for the party to substitute that person and that election will be held within 14 days.
“Unfortunately, the scenario clearly, as you can see, does not relate with the subject matter and the question here is when you have an attorney-general of the federation, carrying on as if he is the attorney-general of a political party, it becomes very worrisome.”
He claimed that the APC no longer had a candidate, nor could participate in the supplementary election “because the time and period for substituting candidates are long over.”
Any Kogi indigene will win re-scheduled poll –Senator
On his part, the Senator representing Kogi Central Senatorial District, Mohammed Ohiare, on Thursday described as untrue, insinuations that the APC would lose the rescheduled Kogi governorship supplementary election if the party presented a replacement who was not an Igala person.
Audu, who represented the party in last Saturday election, was an Igala, a tribe believed to have the highest population in the state.
There have been insinuations that voters in Kogi State might not vote for any candidate, who is not from the Kogi East Senatorial District, populated by the Igala.
But Ohiare, an Ebira, told journalists in Abuja that any candidate produced by the APC from any part of the state would be overwhelmingly voted for by the people.
He said, “I don’t think the people will not vote for candidate that is not an Igala man. We are all brothers in Kogi State, I don’t know why people are carrying this rumour too far. Is it an Igala man that will not see me as a brother?
“I don’t think that the rumour being peddled around that only an Igala man will deliver the governorship election, is a fact. Whoever that the party presents from any part of the state will be embraced by all party members. As far as I am concerned, I don’t think any indigene of the state holds such views; they are the options of foreigners.”
In the meantime, a Lagos-based lawyer, Ebun-Olu Adegboruwa, has headed for a Federal High Court in Lagos to challenge the position of the AGF, Malami, that the APC could substitute its deceased governorship candidate with another candidate.
Malami had suggested that in the face of no express provision by either the Constitution or the Electoral Act, the APC could substitute the late Audu with another candidate to conclude the election.
But in a suit, which he filed on Thursday, Agbegboruwa contended that Malami’s suggestion ran foul of Section 181(2) of the 1999 Constitution.
