By Olisa Agbakoba Legal (OAL)
It is no longer news that the Gubernatorial Candidate of the Peoples Democratic Party (PDP) in Abia State Professor Uchenna Ikonne is dead, this has been confirmed by his family and the Abia State Government.
May his soul rest in peace and may God grant his family and loved ones the fortitude to bear this irreparable loss. The late Professor Ikonne emerged as the winner of the Peoples Democratic Party Gubernatorial Primary in Abia State and nominated his running mate Hon Okey Igwe.
It is worthy of note that both were validly nominated in line with Sections 177 and 187 of the 1999 Constitution as amended which therefore means that the issue of validity or disqualification of their candidacy does not arise.
The various opinions vis a vis the position of the Deputy Governorship Candidate?
There are various positions as to what becomes of the Deputy Governorship Candidate some say there will be a fresh Primary to choose a new Governorship and Deputy Governorship Candidates because the Deputy Governorship Candidate is also dead in law as the late Governorship Candidate while some maintain that the Deputy Governorship is to step into the shoes of the Governorship Candidate and nominate a running mate since they have a joint Candidacy. The Independent National Electoral Commission has gone ahead to direct that PDP organize a new Primary within 14 days and submit the names of the new Governorship and Deputy Governorship Candidates relying on Section 33 of the Electoral Act 2022 which provides:
Lawyers/Law Firms are Taxable Persons Liable to Pay VAT — Conclusions from Al-Masser vs. FIRS
“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.”
Further to the above, Section 34 provides inter alia:
(1) If after the time for the delivery of the nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner shall being satisfied with the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14days.
(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.
(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 21days and
(b)in the case of election into 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 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 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.
In interpreting and applying the above sections to the instant case, some hold the view that since the election has not commenced the Peoples Democratic Party must conduct a fresh primary within 14 days and submit the name of the new Candidates. This is actually the popular view.
On the other hand, another view is that the Deputy Governorship Candidate takes over and nominates a new Deputy Governorship Candidate. This position is based on the fact that it is a joint Candidacy and that also the Proviso to Section 34 applies to Subsections 1-3 since the draftsman did not clearly state that it applies only to Subsection 3.
The Supreme Court in Peoples Democratic Party & Ors v.Biobarakuma Degi-Eremienyo & Ors (2021) 9NWLR( Pt.1781) at Pg.274 SC explained the nature of the Candidacy of Governorship and Deputy Governorship as a joint ticket, Ejembi Eko JSC in delivering the judgment, particularly at Pg 293 paragraph B-C stated thus:
“The sum total is that the joint ticket of the 1st and 2nd respondents sponsored by the 1st respondent was vitiated by the disqualification of the 1st respondent. Both candidates disqualified are deemed not to be candidates at the governorship election conducted in Bayelsa State”.
This means that the death of one does not vitiate the candidacy of the other so far both were validly nominated as joint Candidates as it is only a disqualification of one that affects the other being a joint ticket. The idea is that Upon the death of either the Governorship or Deputy Governorship Candidate, the Political Party is still in the ballot.
The new Act in an attempt to put the controversy usually generated by the death of a Candidate before or after the election to rest has also left a few issues unresolved. The death of a candidate in elections had generated lots of conflicts among political parties and political actors in the past because the old act did not take care of such issues hence the resort to the doctrine of necessity leading to lawsuits. Though the case of the Kogi State Gubernatorial election which comes to mind has been taken care of by the new act it appears there is more to envisage and legislate for in that regard.
From the foregoing, it is clear that the Electoral Act 2022 has taken good care of the lacuna created in the Constitution and the old Electoral Act Particularly in the Case of the Kogi State Governorship election.
The present case of Abia State is not comprehensively and clearly taken care of without creating doubt requiring judicial interpretations. This is to the effect that the Proviso to Section 34 of the Act specifically empowers the Deputy Governor to Continue with the Election and also nominate a running mate but some disagree that the proviso only applies to Subsection 3 of the Electoral Act 2022.
Therefore, there is a need for the court to make pronouncements on the position of the law in order to unravel the true intent of the draftsman.