ABUJA— The refusal of the All Progressives Congress, APC’s, erstwhile deputy governorship candidate in the last election in Kogi State, Mr. James Faleke, to be the running mate to the new candidate, Yahaya Bello, in this weekend’s governorship supplementary election has put his party and the Independent National Electoral Commission, INEC, in a quandary.
James Faleke
As at last night, Vanguard learnt that Faleke’s name was still penned down as the APC’s deputy governorship candidate despite his repudiation of his nomination as running mate to Yahaya Bello.
Vanguard learnt that INEC was procedurally incapable of acting on the letter submitted by Faleke to withdraw himself from the supplementary election as running mate to Bello, indicating that his name is still penned as running mate to Bello.
Faleke had on Tuesday written INEC demanding the removal of his name as the running mate to Alhaji Yahaya Bello in this Saturday’s supplementary election.
Having earlier written the commission and consequently filed a case at a Federal High Court, Abuja requesting to be declared as governor-elect, Faleke had also rejected the option of being Mr Bello’s running mate.
Vanguard checks revealed that Faleke’s second letter to the commission is defective on the grounds that only his party has the locus standi to present such letter to INEC.
Section 35 of the 2010 Electoral Act(as amended) states that: “A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.”
Aside from the 45-day timeline which has elapsed, the APC as at press time was said to have continued mounting pressure on Faleke to withdraw his threat to quit the party.
Negotiations still ongoing
Contacted on the issue, National Chairman of the party, Chief John Oyegun, told Vanguard that negotiations were still ongoing.
Mr. Bello’s adoption at the meeting of the National Working Committee of the party followed the death of the former governorship candidate, Abubakar Audu, on November 22.
The party immediately forwarded his name to INEC as replacement for Mr. Audu and that of Mr. Faleke as his running mate.
However, when contacted on phone, Director in charge of Voter Education, Publicity, Civil Society and Gender Liaison, Mr. Oluwole Osaze-Uzi said he could not confirm INEC’s receipt of the letter.
He said if the letter gets to INEC, the commission would look at it and know how to go about it before Saturday’s polls.
In Kogi, speculations are rife that should Faleke make good his threat to quit the party, Bello would choose his long-time ally, George Olumoroti as his running-mate.
Wada knows fate on Friday
Meanwhile, the Federal High Court sitting in Abuja, yesterday, fixed Friday to determine whether in view of section 181 of the 1999 constitution, as amended, the INEC ought to conduct a fresh governorship election in Kogi State.
In its bid to speedily resolve all the legal issues that were thrown up by the death of the former governorship candidate of the APC, Abubakar Audu, the court, yesterday, consolidated four separate suits challenging the legality of the supplementary election scheduled to take place in Kogi state on Saturday.
Justice Gabriel Kolawole, who presided over the four suits, yesterday, said there was need for the court to expeditiously determine the issues, “so that INEC will not conduct the election under a grave shadow of doubt as to the legal or constitutional validity.”
Whereas one of the suits was lodged before the court by Kogi State governor, Captain Idris Wada (retd), the second suit was filed by the governorship candidate of the People for Democratic Change, PDC, in the state, Hon. Emmanuel Daikwo.
Likewise, a legal practitioner, Mr. Johnson Usman, a House of Reps member for Ahiazu Ezinaihitte Mbaise Federal Constituency of Imo State, Hon. Rafael Igbokwe, and an electorate from Omala Local Government Area in Abelijukolo Ife of Eche ward in Kogi State, Mr. Stephen Wada Omaye, filed the two remaining suits
Issues for determination
Upon consolidation of the suits yesterday, the plaintiffs, led by Wada’s lawyer, Mr. Goddy Uche, SAN, distilled out three principal legal issues for the court to determine on Friday.
They want the court to go ahead and determine: “Whether having regard to the provisions of sections 31(1)(2)(4)(5)(6)(7) and (8), 33, 34, 36, 85 and 87 of the Electoral Act, 2010, as amended, as well as sections 178-181 of the constitution of the Federal Republic of Nigeria, as amended, INEC, can lawfully conduct a second/supplementary election into the office of Governor of Kogi State on December 5, 2015, or any other date at all let alone accepting the nomination/substitution by the APC of any candidate on the basis of votes computed and credited to the deceased candidate of the APC when the new or substitute candidate was not part of the original election.
Wada specifically prayed the court to determine “whether in view of the provisions of section 179 (2) (3)(4)(5) of the constitution, and other enabling provisions of the Electoral Act, 2010, as amended, and having regard to the doctrine of necessity, the plaintiff being the only surviving candidate with the major lawful votes cast at the Kogi State governorship election held on November 21, 2015, ought not to be declared and returned by the INEC as the winner of the election, having secured not less than one-quarter of the votes cast in two-thirds of all the Local Government Areas in Kogi State.”
Justice Kolawole, yesterday, gave all the parties 48 hours to file and exchange their final written addresses, saying they should return on Thursday to adopt their processes to enable the court to deliver judgement on the matter on Friday.
Meantime, though both INEC and the Attorney General of the Federation were represented in court yesterday, there was no legal representation for the APC, which was equally cited as a defendant in the suit.
Uche, SAN, told the court that effort by his client to serve the originating processes on APC at its secretariat in Abuja failed on Monday as a result of a free-for-all that was going on between three different factions of the party.
Faleke goes to court
In another development, the deputy governorship candidate of the APC in the November 21 election in Kogi State, Mr. James Faleke, yesterday, approached the high court, demanding that he should be declared the governor-elect.
Faleke, in the suit marked FHC/ABJ/CS/977/2015, which he filed through a consortium of lawyers led by Chief Wole Olanipekun, SAN and Mr. Femi Falana, SAN, insisted that contrary to the claim by the electoral body, the Kogi State governorship election was conclusive.
He is seeking 16 principal reliefs from the court, among which include, “A declaration that by the express provisions of sections 179 (2) (a) and (b) and 187(1) of the constitution, a person who is nominated as an associate of a candidate for the office of governor of a state is duly elected deputy governor of a state when the candidate for the office of the governor scores the highest number of votes at the election and also scored not less than one quarter of all the votes cast in each of at least two-third of all the local government areas in the state.
“A declaration that by the combined reading of sections 179 (2)(a) and (b) and 181(1) of the constitution, upon the death of a person duly elected as the governor of a state, the person elected with him as deputy-governor is to be sworn in as the governor of the state.”
Faleke also urged the court to declare that the results declared by INEC following the November 21 governorship election in Kogi State, produced a governor-elect of the state in accordance with the express provisions of section 179(2)(a) and (b) of the constitution.
He argued that the results INEC declared after the election clearly produced him as the Deputy-Governor elect of Kogi State.
The running mate of the late Abubakar Audu, who was governorship candidate of the All Progressives Congress in the November 21 poll in Kogi State, Mr. James Faleke, has opposed the proposed supplementary election by the Independent National Electoral Commission in the state on December 5.
James Faleke
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.
