Constitutional lawyer
cum Human Right activist Prof. Itse Sagay (SAN) has described as a mistake, the
decision of the All Progressives Congress (APC) not to use its deputy
governorship candidate, James Faleke, to replace the late Abubakar Audu in the
run-off.
The university don, stated
that he is in support of the decision of the Independent National Electoral
Commission to conduct a supplementary governorship election in the affected
polling units in Kogi State instead of conducting fresh election because it
will amount to waste of resources?
PUNCH reports….
Ø Why
do you support the decision of the Independent National Electoral Commission to
conduct a supplementary governorship election in Kogi State?
It is because the
election has already been held. It is a waste of time, resources and the
efforts and energy of the people to go back and take part in an election in
which they have already voted. Therefore, only those who have not voted and
have been deprived of voting should vote. That is what we have been saying —
Section 181 of the constitution already shows that once an election has been
conducted and the results show that there is a leader, if the person dies, then
the running mate should take his place; even though in this case the results
have been declared inconclusive. Those are the two legs of my argument: You do
not repeat an election that has been concluded and whose results have already
been written down. In essence, it is only those that have not voted who will
now vote. And as to who will be the candidate of the All Progressives Congress,
it has to be the person who was the running mate of the person who passed away.
These are the two things to consider.
Ø Some
have asked Audu’s running mate, James Faleke, to approach the courts to
challenge the party’s decision not to make him Audu’s replacement. Do you think
this is advisable?
No, because Faleke is
an APC man. If the party decides that it wants to conduct another primary, that
is their problem, and I use the word ‘problem’ advisedly because they are
creating an unnecessary problem for themselves. They already have two
candidates — the running mate who is surviving is a candidate and all they need
to do is to pick someone else from the same senatorial district as the deceased
that will be the running mate of Faleke. I don’t know why people avoid simple
things and then go and complicate life for themselves. I don’t understand.
While I would not advise Faleke to go to court, I think the decision belongs to
the party and if they want him to retain his deputy governorship candidature,
he should allow them without making any problem. But I think it would be a
mistake on their (APC’s) part.
Ø Is
it true that Section 181 of the constitution only applies to a governor-elect
that has been declared by INEC, as some have argued?
We can’t call him a
governor-elect. He is not yet a governor-elect. A governor-elect is a candidate
who has won an election and whose results have been declared. What I am saying
is that what we have now is the nearest thing to that. Election has also been
held. The only difference here is that it was stated to be inconclusive in the
case that some people were deprived of the opportunity to vote; a small number
of people of about 40,000, whereas what we have already are almost 400,000
votes. Looking at the provision in Section 181, it is very similar. Therefore,
by analogy, we can apply that provision.
Ø There
are some opposed to the decision for the APC to conduct a primary with the
argument that if the result of the November 21 governorship election was
declared inconclusive, then a fresh election should be conducted. What is your
response to that?
For me, the question
of a new election is totally ruled out. Only a person who is speaking in bad
faith would talk of a new election. Election has been held. It is those who
lost that election who want that election to be repeated perpetually till they
win; those are the people who would make such ‘bad-faith’ suggestions. For me,
any other (new) election is out of the question. Election has been held; only
those who have not had the opportunity to vote should vote. And I think the PDP
should now learn to abide by election results.
Ø Do
you agree with the argument that, in accordance with the provisions of the
constitution and the Electoral Act, it would be unlawful for the APC to select
someone like Faleke, who did not participate in the party’s original primary,
to represent it as a governorship candidate in the supplementary election?
They can pick anybody
from among those who have taken part in that primary, but it has absolutely no
legal relevance, the fact that he takes part in a primary. He is not better
than any person who has not taken part in a primary. Maybe for emotional or psychological
reasons, they may make that suggestion, but there is no legal significance in
that suggestion.
Ø Do
you think it would have been better if this matter was taken to court for a
clear and objective interpretation?
I have already told
you my way out of the whole scenario, which is that we should let the running
mate become the governorship candidate and then let somebody be picked from
(Audu’s) senatorial district as his deputy governorship candidate. But as you
know, in Nigeria we like going to court a lot. I have no doubt that somebody is
going to go to court and for selfish reasons. Maybe the loser will want to go
to court or the party of the loser may want to go to court to look for a second
chance; to have a second election after they have lost. They would want to have
election perpetually until a particular person wins. In essence, somebody is
likely to go to court and, if that happens, at the end of the day, the judicial
decision that is taken at the Supreme Court level will lay down the precedent
which we shall follow in future. But then, if I were the one to take a
decision, I would simply say, ‘Let the deputy governorship candidate become the
(governorship) candidate and let someone be selected from the senatorial
district of the former candidate as his deputy.’
Ø Do
you think it is necessary to amend the constitution at all, given the legal
conundrum that has arisen as a result of Audu’s ill-timed death?
No, I don’t think so
at all. Look at what has happened; it is a freak accident. The constitution
already provides for a situation in which, if after an election a candidate who
won dies, then his deputy steps into his shoes. That is what Section 181 says.
There was an election, no winner was announced because there is to be a run-off
and within that short period, a candidate dies. Which type of law can
anticipate every situation? If we had a country in which people acted in good
faith, in which there was a certain level of rational and reasonable mentality,
this thing shouldn’t create a problem because no law can create a rule for
every situation. I don’t think we need any new law about this; we should accept
any legal rule that fills that gap if it is necessary.
Ø After
comparing the margin between the two leading candidates with the number of remaining
voters in the areas where the supplementary election will be conducted, the APC
says the result should not have been declared inconclusive at all. What do you
think?
I’ve heard that and
if the facts stated to that effect are correct, then the APC is right because I
am told that only 25,000 people of those who have not voted have Permanent
Voter Cards. Even if we have a supplementary election, only those 25,000 will be
able to vote. What is the point of the supplementary election when, already,
the APC is leading with 41,000 votes? In essence, even if all the 25,000 votes
are cast in favour of the PDP, it will not catch up. If that is the case, it
was a major constitutional error on the part of INEC to have declared the
election inconclusive.
Ø What
do you then propose the INEC should do at this point in order not to waste time
and public fund?
That is why I say the
election has been held. We can’t be wasting money repeating what has already
been done. Let the supplementary election be held in the units were elections
did not take place and then the total results announced immediately after that.
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