Don’t hold Kogi poll, lawyers tell INEC


A consortium of lawyers has advised the Independent National Electoral Commission (INEC) against going ahead with the proposed Kogi State governorship election’s supplementary poll.

The exercise has been slated for December 5 in 91 polling units.

But the lawyers, who were engaged by INEC, said the All Progressives Congress(APC) could not present a candidate to replace its deceased candidate, Prince Abubakar Audu.

They insisted that contrary to the position of APC leadership, the governorship ticket does not belong to the party.

They said the ticket, by the Supreme Court judgment  on CPC Ombugadu(2013) 18NWLR (part 1387)66, belong to the candidates of a party.

They said if INEC goes to court to seek interpretation on what appears novel, it will prolong the stalemate in Kogi State.

They also said any recourse to the application of the “Doctrine of Necessity” will impugn on Section 1(1) of the 1999 Constitution.

They asked INEC to countermand the November 20 governorship poll in Kogi State and conduct a fresh election in all the 21 Local Government Areas.

The lawyers, who serve as legal advisers to INEC, made their opinion known in a November 24 letter to the Secretary to the Electoral Commission.

They said their legal opinion followed a meeting they had with the Chairman of INEC, Prof. Mahmud Yakubu and his National Commissioners on November 23.

The affected lawyers are Adegboyega Awomolo(SAN); A. B. Mahmoud(SAN); Onyechi Ikpeazu(SAN); Hassan M. Liman(SAN) and Ahmed Raji(SAN).

The 10-page advice reads in part: “We are of the opinion that the best option in the circumstance is to countermand the election to the office of the Governor of Kogi State, call for a nomination of another governorship candidate of the All Progressives Congress(APC) and schedule another date for election in all the 21 Local Government Areas.”

The lawyers warned INEC against going to court to seek any interpretation because the legal process might prolong the political stalemate in Kogi State.

The advice said: “In a normal situation, especially in a legal system which assures speedy disposal of matters, it may not be out of place for the commission to proceed to Court to seek clarification on what appears novel.

“However , proceeding along that course will no doubt attract several interest groups who may simply employ the system of incessant applications for joinder, not only to frustrate what may be a an attempt to attain a lofty objective by the commission, but defeat the course of democracy,

“There is a clear likelihood that such a case will proceed to the Supreme Court, which will obviously be protracted for such duration that will expose the Commission to attacks of being partisan.

“Whatever decision the Commission arrives, may be challenged, but it is important that all decisions be made on the foundation of law.”

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On recourse to Doctrine of Necessity, the lawyers said: “There will be no room, however for applying such a doctrine in a situation such as the present case where the Constitution has made it categorical  that without candidates for the Office of Governor and Deputy Governor, there can be no valid nomination.

“Implied necessity though may be used to fill a lacuna, will not be applied in such a way as to impugn any of the provision of the constitution.

“By Section 1(1) of the 1999 Constitution, the provisions of the Constitution are supreme and no law, practice or procedure may be applied in breach thereof.”

They also said the nature of the political crisis in Kogi was never envisaged by 1999 Constitution.

The advice added:  “The constitution did not capture the scenario in this matter but rather dealt with a situation where a candidate had been declared duly elected.

“Section 181 (1) of the 1999 Constitution provides as follows: “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”.

“With emphasis on the term ‘duly elected’. it does appear that in the situation at hand, nobody was declared duly elected as the election was effectively inchoate. There was no declaration made at the election. The 1999 Constitution is categorical of the term duly elected.”

On the substitution of governorship candidate, the lawyers said APC cannot forward the name of any candidate to replace Audu as in the case of Yahaya Bello.

They said: “The political party cannot forward the name of another person  to fill the position for the purpose of completing the process.

“This is for the reason that the Electoral Act envisages only a situation where the candidate who must be declared elected must have taken part at all stages of the election. this means, both the process of nomination and the election itself.

“Section 141 of the Electoral Act stipulates as follows: ‘An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.’

They insisted that contrary to the position of APC leadership, the governorship ticket does not belong to the party.

They said the ticket, by the Supreme Court judgment  on CPC Ombugadu(2013) 18NWLR (part 1387)66, belong to the candidates of a party.

The legal advice said: “It must be noted that the cliché that it is the political party that contests election, which originated from the determination by the Supreme Court in Amaechi v, INEC(2008) 5 NWLR(Part 1080) 227, has been reversed in very certain terms in Supreme Court case of CPC Ombugadu(2013) 18NWLR (part 1387)66.

They quoted the Supreme court as declaring: …In other words, parties do not contest, win or lose election  directly, they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or court, that the person must have fully participated in all stages of the election, starting from nomination to the actual voting.”


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