INTRODUCTION

The recent death of the Abia state governorship candidate for the People’s Democratic Party Prof. Uche Ikone and Alhaji Abba Maina the governorship candidate for National Rescue Movement in Adamawa state has caused some confusion as some people have assumed that his running mate will automatically take over while some people believed the 2^nd runner up at the primary election will be nominated as the candidate of the party. The controversy surrounding a death of a candidate already nominated can be viewed from two perspectives; prior to elections and after elections before swearing in. the controversial case of kogi state in 2015 where the Governorship candidate Abubakar Audu died after the elections and had to be substituted by the primary runner-up in person of Yahaya Bello as against the late nominated candidate’s deputy/running mate James Faleke where the supreme court Jurist held In the reasons, advanced for the summary judgment, delivered on September 20, Justice Kudirat Kekere-Ekun, held that Faleke did not obtain nomination form, did not participate in the primary election and as such, cannot under any circumstances, be made the governorship candidate to replace Audu. Besides, Justice Kekere-Ekun said that before the sudden death of Audu, after the November 21 governorship election, the Independent National Electoral Commission (INEC), had already declared the election inconclusive and that since the election, had not been completed and the final result issued by the electoral body, Faleke, as a running mate, cannot claim ‎victory in the election. The apex court upheld the substitution of Yahaya Bello to replace Audu because in the face of the law, Bello obtained nomination form, took part in the primary election and came second, unlike Faleke who did not meet that condition.

However, with the recent deaths of the NRM and PDP in Adamawa and Abia respectively candidates people have resorted to insinuating that what applied in the case of Yahaya Bello will play out, however to avoid a repeat of the controversial issue in case of Yahaya Bello the electoral act 2022 has cured the lacuna and made provisions for the situation of death of a candidate prior to an election and after polls. The electoral Act 2022 provides the only conditions where a political party can validly and legally substitute a candidate as provided in Section 33 of the Electoral Act 2022 which states;

A political party shall not be allowed to change or substitute its candidate, whose name has been submitted under section 29 of this Act, except in the case of death or withdrawal by the candidate

Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the commission for the election concerned.

Invariably, from the above stated statutory provision it is only on the conditions stated above; voluntary withdrawal and death of a candidate can the political party substitute such candidate.

On death of a candidate the prior to commencement of polls or elections the act provides in Section 34 (1) as follows;

If at the time of the delivery of nomination paper and before the commencement of the polls, a nominated candidate dies, the Chief National Electoral Commissioner shall be being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate the and the Commission

shall appoint some other convenient date for the election within 14 days.

(2) The list of voters to be used at a postponed election shall be the

official voters register which was to be used if the election had not been

postponed.

Where on the other hand the candidate dies after election has commenced Section 34 (3) provides;

(3) If after the commencement of polls and before the announcement

of the final result and declaration of a winner, a candidate dies—

(a) the Commission shall, being satisfied of the fact of the death, suspend

the election for a period not more than 21 days; and

afresh and the political party whose candidate died may, if it intends to

continue to participate in the election, conduct a fresh primary within 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 presidential or gubernatorial or Federal Capital

Territory Area Council election, the running mate shall continue with the election and nominate a new running mate.

However, for the office of the president where the presidential candidate dies the running mate shall however continue and nominate a running mate subsequently. The provisions of the electoral act has helped to quell the usual controversy that surrounds the death of an already nominated candidate especially upon conclusion of polls. The court has also held that a political party which is saddled with the responsibility of submitting a nominated candidate to the electoral body cannot unilaterally substitute any nominated candidate unless as provided in the act this is given credence in the case of LABOUR PARTY & ORS v. OKO & ANOR (2022) LPELR-58649(CA) where the court held;

“Substitution of a candidate for election is governed by Sections 31 and 33 of the Electoral Act, 2022. A political party is not allowed to change or substitute its candidate whose name has been submitted under Section 29 of the Act except in case of death or withdrawal by the candidate. A candidate may withdraw his candidature by notice in writing signed by him and delivered personally by him to the political party that nominated him for the election and the political party shall convey such withdrawal to the 2nd respondent not later than 90 days to the election.” Per JOSEPH EYO EKANEM, JCA (Pp 22 – 22 Paras B – D)

In conclusion, in my humble submission with the above judicial authority a candidate can only be nominated where he/she dies or voluntarily withdraws and as in the instance cases of the death of the People’s Democratic Party and National Rescue Movement candidates their political party can legally substitute them after conducting elections within 14 days.

Thank You

Ochima George is a Senior Associate, Marble Partners LP