The running mate to the late Prince Abubakar Audu in last Saturday’s governorship election in Kogi State, James Abiodun Faleke, yesterday asked the Independent National Electoral Commission (INEC) to declare him winner of the poll.
Faleke also described as not only “unconstitutional” but “misleading” INEC’s directive to his party – the All Progressives Congress (INEC) – to conduct a fresh primary to nominate Audu’s replacement in the supplementary election billed for December 5.
In separate letters from his counsel Chief Wole Olanipekun (SAN) Chambers to INEC and the APC, Faleke said the electoral umpire erred by declaring the November 21 election inconclusive after the emergence of a clear winner.
The letters were addressed to Prof Mahmood Yakubu and Chief John Odigie-Oyegun in their capacities as chairmen of INEC and APC.
Faleke insists that INEC usurped the functions of an election petitions tribunal by declaring the poll inconclusive and scheduling a supplementary election.
According to him, the electoral agency would be prompting an avoidable judicial crisis by asking the APC to produce another candidate to inherit the votes already counted in favour of the Audu/Faleke ticket.
Describing the December 5 supplementary election as illegal, Faleke urged INEC to declare him the winner of the November 21 election and in the event of the APC heeding INEC’s directive, that he be declared the party’s candidate.
Also in the letter to Odigie-Oyegun, Faleke reminded the APC that it was outside INEC’s jurisdiction to compel it to stage another primary after the conclusion of an election.
He said the onus was on the party to support him in actualising the mandate which 240, 867 voters gave to the APC at the ballot to beat Governor Idris Wada of the Peoples Democratic Party (PDP), who polled 199,514.
The letter reads: “Arising from the foregoing, our client enjoins the APC not only to support him at actualising the mandate already given to the party under the joint ticket of himself and the late Prince Abubakar Audu, but also distance itself from the ‘Greek Gift’ offer being made by INEC, to wit, that is allowing the APC to conduct a fresh primary election to nominate a candidate for a supplementary election in 91 polling units, where only about 25,000 PVCs (Permanent Voter Cards) is already leading, by the announced results, with over 40,000 votes.
“In parenthesis, we urge the APC, under your able leadership, to speedily look into and act on our client’s position as stipulated in this letter.”
Explaining that INEC had no justification to have declared the election inconclusive, the letter said: “We dare say that the reasons given by INEC are alien to the Constitution and, therefore, unconstitutional. Cancellation of election results by INEC cannot be a ground for declaring any election as inconclusive.
“INEC also has no constitutional or legal power to order the APC to go and conduct a fresh primary election to nominate a candidate for an already concluded election. INEC is advertently and inadvertently instigating a political and legal conundrum, which the APC as a party should distance itself from.
“What the APC should do and insist on is to ask INEC to obey and comply with the letters, spirit, intention 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. Precedent abounds for this proposition and position or our client.
“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, 25th 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.
“Assuming further, without conceding, that supplementary election in 91 polling units can hold as being suggested by INEC, it is our client who should be the automatic candidate of the party, since APC cannot conduct ‘supplementary primary election’ for the supplementary election in 91 polling units.”
Lacing up his argument with relevant laws, he said: “Under Section 61(c) of the Electoral Act 2010, once a Returning Officer announces or 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 situations 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.”
Also in the letter to the INEC chair, Faleke said: “May we 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 Returning Officer shall be final and binding and can only be reviewed or upturned by an Election Tribunal.
“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 his issue.
“Furthermore by the provision of Section (18(1) of the Constitution our client who was the deputy governorship candidate or the associate of Prince Abubakar Audu at the already concluded election constitutionally and automatically becomes the governor-elect of the state.
“With much respect INEC has no discretion in this matter. May we advise most humbly that you should not confuse this situation with what is intended in Section 33 of the Electoral Act because the situation on ground has nothing to do with changing or substitution of the name of a candidate before election. In fairness to INEC it had already announced the results of the election and as at the time it so did it honestly claimed ignorance of the death of Prince Abubakar Audu.
Mr. Chairman Sir, this is a rather simple and straight forward matter which does not need any delay, foot dragging or procrastination. It is a constitutional imperative. Put in another way, INEC has a bounded duty to declare our client as the winner of the election.
“Any attempt to conduct any supplementary election in any unit whatsoever and howsoever will amount to INEC breaching and flouting the Constitution and our client would definitely challenge it.”
Source: The Nation
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