Death Of A Candidate Before, During Or After An Election-What Says The Electoral Act, 2022 And The Constitution? -By Hyginus Ibega Esq

INTRODUCTION

It is appointed unto man once to die[1] Death is an inevitable occurrence,a sure debt that every man no matter how big or small must pay in due time. Death does not distinguish between the electorate and the candidate. Death does not even respect the incumbent, otherwise Nigeria would not have lost a great asset in 2010-Late President Umaru Musa Yar’adua(of blessed memory). It is because of this sad reality that the law makers have in their wisdom (which is limited as shall be demonstrated shortly hereunder) mad copious provisions as to what happens when death strikes a political player, whether before, during or after election. This shall be the goal of this short article as discussed in three dimensions below.

 

  1. Death before election
  2. Death after commencement of election but before announcement of final result.
  3. Death after announcement of result before swearing in or inauguration.

 

We shall begin the discussion seriatim.

DEATH BEFORE ELECTION

If after the nomination of a candidate, but before the election a candidate dies, the position of the law under section 34 of the Electoral Act, 2022 is thus:

 

  • If after the time for the delivery of the nomination paper and before the commencement of the poll, the nominated candidate dies,the Chief National Electoral Commissioner shall, being satisfied of the death, countermand the poll in which the candidate was to participate and the Commissions shall appoint some other convenient date for the election within 14 days.

 

That is to say that INEC shall cancel the election and postpone the election to hold within 14 days.

 

This was exactly what played out during National Assembly election scheduled to hold nation-wide on 25th February 2022. On the Wednesday, preceding the election being 22nd February, Barr OyiboChukwu, the flag bearer for Labour Party(LP) in the Enugu West Senatorial District election was shot dead. INEC rightly cancelled the election and postponed it to 11th March March, 2023 which was further postponed to 18th March wherein the Labour party nominated the younger brother of the deceased candidate, Mr Kelvin Chukwu to run for the election.

 

DEATH DURING ELECTION

The Nigerian political space was thrown into serious legal conundrum by the death of AuduAbubakar in 2015. The cause of the confusion was that at the time he died, he was the candidate of the All Progressives Congress(APC) in the Kogi Gubernatorial election and he was cruising to victory going by the calculation of the voting pattern as at the time he died. In the absence of clear cut legislation to this effect, INEC approached the (APC) and asked for a replacement for the late Prince AuduAbubakar. APC in response to that forwarded the name of the 2nd runner up in the primaries election conducted by MallamNasir El-Rufai, by the person of Yahaya Bello.

 

This single act of replacement of AuduAbubakar with Yahaya Bello angered Hon. James Faleke who was the Deputy to the late AuduAbubakar. He approached the election tribunal asserting his position that since his principal Audu died, he was supposed to step into his shoes, therefore, the victory of APC in that election rightly belongs to him, In a protracted legal battle up to Supreme Court, featuring  forefront legal titans WoleOlanipekun SAN, J.B. Daudu SAN(the author’s boss) Alex Izinyon (for APC, Yahaya Bello and INEC respectively)the apex Court justified INEC and APC on the step they took to forward Yahaya Bello’s name to step into the shoes of AbubakarAudu.

 

This case threw up the obvious lacuna in the Electoral Act, 2010(as amended in 2015) as to what happens when a candidate dies while the election is ongoing but not concluded especially where the party of the late candidate won the election.

Interestingly, thisscenario was taken care of under the Electoral Act, 2022 in Section 34(3) thus:

‘’If after the commencement of poll and before the announcement of the final result and the declaration of a winner, a candidate dies;

           

  • The Commission shall be being satisfied of then fact of the death, suspend the election for a period of not more than 21 days; and
  • In the case of an election into a Legislative House, the election shall start afresh and the political party whose candidate died, may if it intends to continue to participate in the election, conduct a fresh primary with 14 days of the death of its candidate and submit the name of a new candidate to the Commission to replace the dead candidate.

 

Provided that in the case of a Presidential or gubernatorial or Federal Capital Area Council election, the running mate shall continue with the election and nominate a new running mate.

 

DEATH AFTER ELECTION BUT BEFORE SWEARING IN OR INAUGURATION

In as much as the issue of what happens when a candidate dies while the election is on-going before the announcement of the final result is sorted out by the afore-cited provision of the Electoral Act,2022, another obvious lacuna in both the Electoral Act and the Constitution has reared up its ugly head by the demise ofAlhajiIsmailaMaihanchi, House of Representatives member-elect for Jalingo/Yorro/Zing federal constituencyin Taraba State. He was duly elected   however before the inauguration of the 10th National Assembly which he is potentially a member, he died on Saturday, 22nd April, 2023.

 

What says the law?

The position of the law when a candidate dies after being elected but before inauguration or swearing in is catered for only in the instance of a Governor-elect or President elect. While section 181 provides that the Deputy Governorshall be sworn in while he nominates a deputy, section 1 136(1) provides that

If the President elect dies before swearing in, the Vice President elect shall be sworn in and he shall nominate a Vice-President.

However, and surprisingly, the Electoral Act and the Constitution is silent as to what happens when a member of the National or States House of Assembly dies after election and before swearing in. It seems the law will fall back on INEC to fill in the gap by prescribing what ought to be done in the circumstance. Whether such a prescription by INEC will stand or whether irwill be contested as in the case of Faleke and Yahaya Bello, is a matter that events and reactions will unfold.

 

COMMENTS

The National Assembly by copious provisions of the Constitution and the Electoral Act has settled the issue of what happens if a candidate dies before or during the election. The laws have also taken care of the situation whereby a President-elect or Governor-elect dies before swearing in. It is the opinion of the author that the Party that sponsored the late candidate should be given the opportunity to nominate another person to step into the shoes of the deceased candidate. This is in accord with Section   221 of the Constitution which prescribes that it is only political parties (and no other association) that can canvass for votes and fund the expenses of an election. They deserve to reap from their labour and should not be subjected to another rigour of campaign and elections.

As a matter of fact, if the deceased lost the election, the party can either by itself or in conjunction with the winner of the election present a petition before tribunal. As a matter of election petition law and practice, the party of the deceased candidate(if they won the election) is always a co-respondent to the petition and has the duty to defend that election.

 

CONCLUSION

Legal opinions would make way to whatever INEC decides to do in the absence of a clear provision of the law (which is also subject to judicial intervention).  Divergent opinions and even the discretion of INEC would further pale into insignificance by the time the National Assembly enacts a positive law either by amendment of Electoral Act or the Constitution as to what should be when member –elect for the National or State House of Assembly dies after being returned elected but before the inauguration of the legislative house. It is hoped that this legislative intervention comes as quick as possible. This will lay to rest the issue of the death of a candidate whether before, during or after election results are announced.

 

HYGINUS IBEGA Esq

Abuja based legal practitioner

Email: ibegahym@yahoo.com

[1] Hebrews 9:27a


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