Attorney-General Should Have Been Silent On Kogi 'Drama' - Lawyer

The governorship election crisis in Kogi state will definitely take a long time to be resolved as analysts have continued to give varied opinions on the development that followed the death of Prince Abubakar Audu, the candidate of the All Progressives Congress (APC) in the election.

In this live interview, popular fiery lawyer, Jiti Ogunye, added a new twist to the entire argument saying that the Independent National Electoral Commission (INEC) was wrong to have decided on supplementary.

He also looks at the challenges before the APC

Excerpts:

Q: How have you been able to dissect the constitutional crisis in Kogi state's political environment?

We've had a comedy of errors including the latest one in which INEC issued a directive stating that it is going to allow a political party to substitute its candidate. I start by saying it was wrong for INEC not to have declared late Prince Abubakar Audu as the duly elected candidate by the time they concluded that election.

It was wrong. Their reason was not valid. Look, we had an election, and in the election, that candidate, who is late now, scored over 240,000 votes against his closest rival who scored 199,000 votes. In addition, he had scored a minimum of 25 percent of the votes in, at least, two-third of the local government area of the state by winning 16 out of 21 local governments.

Apparently therefore, he had fulfilled the position of the Electoral Act and fulfilled Section 179 of the Constitution. But what the Electoral Officer did was to latch on to one election guideline of 2015 which INEC had the power to make under Section 73 and 153 of the Electoral Act, but which is a subsidiary instrument inferior to the privision of the Electoral Act and provision of the constitution to then say he couldn't declare.

How could it be postulated that the margin of votes between Audu and Wada was not in excess of the number of registered voters. Registered voters are not the ones who determine the outcome of elections, but accredited voters. And as we know, there is usually a difference between accredited voters and those who eventually vote at the end of the day.

You left the accredited voters, you left the actually cancelled votes that were lower in number and was lower in the victory margin between the two parties and you wnet ahead for your registered voters of 49,000. So INEC created this conundrum.

They ought to declare him the winner and allow Section 181 of the constitution to take effect. I'm saying that it was wrong for INEC to have done that. Having done it, they created all these issues by compounding the issues by recommending that the candidate be substituted.

Q: Is INEC empowered to set its own rules for conducting elections?

Yes, but those rules cannot conflict with the provisions of the Electoral Act and constitution. As a matter of fact, Section 33 that permits them to do that opens with "subject to the provisions of the Electoral Act..." So your rules are subject to the Electoral Act.

Q: Why is it that nobody has seen this position?

Well, we don't see things same way. There are also a roller-coaster, psychological, frenzy approach to electoral matters. I look at things and say them the way I understand them. Instead of all these...they ought to have declared and allowed the process to go on.

They declared the election inconclusive and declared that they were going to hold supplementary election. That's why the argument that there is nothing like supplementary election.

We have four types of elections-general election, bye-election, run-off election and a supplementary election as ordered by the court, for example in the case of Fayemi and Oni in Ekiti State.

There was an election petition that led to the voiding of certain votes and the court ordered that election in that particular area.

Now, if you have a supplementary election as they are saying we should have it, then there is a problem; all they need to do is to say: "between the time we declared that we are going to have a supplementary election and now, something has happened; the candidate of the APC is dead.

And because the election was almost concluded and he participated in the election and voted, we do not have any powers under the Electoral Act to cancel the result.

The only thing we can do in this circumstance, is to continue with the election because the APC and the deputy governorship candidate are still on the ballot." Then you declare the result. If they are dissatisfied with it, then they should go to the tribunal.

That is the legal path to tread. What INEC is now saying is that: "we will allow you to substitute." Section 33 of the Electoral Act allows substitution, but it also provides a time-line. And it says yes you can substitute, but it must be between the delivery of nomination and commencement of polls. You cannot substitute midstream. There is no law for that.

Q: When can a fresh election be held?

When you have a tie, equal number of votes. That is when you can have a fresh election. Under Section 179, if under the first ballot, there is no clear-cut winner, you can then go for the second and third ballots as the case may be.

Q: How can this be remedied since it has already been held?

No matter how long you persisted in error, if it is made clear to you, you backtrack; you own up and say you won't do it again. That's the only way to do it. They've been doing this before without knowing that one day, this kind of thing would happen. Now, it has happened.

That's why they are in this quagmire. And instead of them to get out of that quagmire, by some strange coincidence, Attorney-General spoke. He shouldn't have spoken. About an hour or so later, INEC spoke. And about an hour or so later, APC spoke all confirming one issue.

Q: The PDP has called for the resignation of the Attorney-General. What is your thought on this?

They have a right to Freedom of Speech. You can call for the resignation of anybody and it is left for the person to resign. I'm not calling for cancellation, INEC has no powers to cancel, I'm not calling for substitution; INEC has no powers to accept substitution at this stage and the party does not have the power to substitute at this stage.

I'm calling for continuation of the election, conclude it, go to the Electoral Tribunal and solve all these problems. I know it is a difficult situation.

A lot of people were talking about cancellation until they were told that INEC cannot cancel the results declared. And so people started grappling with issues and asking if they can substitute and now, they can't. So what do they do in this circumstance?

What they should do is what I have prescribed they should do and that is what the law allows. I'm concerned about the rule of law and the Nigerian constitution.

I'm not so bothered about what is going on within the APC. Since INEC cannot cancel the results, since no person can be brought in to inherit the votes that had been garnered earlier, since Section 141 of the Electoral Act say that any person who did not participate in all the stages of the election cannot be declared winner of the election, and since all those things are there, declare the election conducted and let the parties sort out the problem in the tribunal.

INEC would remove itself from there, the Federal Government would remove itself. If the tribunal then rules that the election be held afresh, that would be the decision of the tribunal, a court of law, not an administrative directive by INEC.

Q: Where does the deputy governorship candidate fit into this picture?

They had a joint ticket and garnered votes together. You declare the result and the provision of Section 181 of the constitution would then follow. If a party is dissatisfied with this outcome, then go to the tribunal.

Look at the problem they have encountered now which people are not seeing: once you say you want to conduct a fresh primary, can you sustain the election you had before as, indeed they are saying?

They are saying they want to bring a fresh candidate, Once the candidate comes, can you force the candidate who has the right to pick a deputy governorship candidate?

They are creating more problems than they intended to solve. I'm saying that rather than allow political considerations to sway you to the left or right, focus on the rule of law. [article_adwert]

Source: Legit.ng