He was leading in the results announced by INEC, scoring 240,867 votes while the incumbent, Governor Wada of the Peoples Democratic Party polled 199,514 votes.
Speaking on Sunrise Daily on Monday, Mr Oloyede referred to the death of the APC candidate in the election as an “act of God that messed up all kinds of human projections”, but noted that “for every problem, whether legal or otherwise, there will be a solution”.
He recalled that major constitutional crises have been solved in the past using the doctrine of necessity and the Kogi issue would not be an exception.
There have been questions regarding the section of the constitution (Section 181) which recommends that if an elected governor is unable to be sworn in, then his deputy should take his place.
Mr Oloyede said, “I don’t think Section 181 envisages the situation we have on our hands. The operative words here are ‘someone who has been declared as validly elected’ but in this situation, unfortunately, INEC in its own wisdom declared the election inconclusive.
“That means nobody has been declared a winner of the election, so Section 181 does not operate to take care of this situation.”
Some sections of the Electoral Act have also been played up as they address situations like the death of a candidate and the rights of political parties to change candidates.
He explained that indeed the APC has the constitutional right to substitute their candidate but the new candidate must have gone through a process of primaries for the position of governor with his name published within a stipulated time frame.
He then clarified that the use of the word ‘countermand’ as used in Section 36:1 of the Electoral Act would apply to the APC because of the recognition of sudden death and that only means that all the time-based requirements; primaries and all deadlines, would be waived and the party can go ahead to simply nominate a replacement.
Party Supremacy or Candidate’s Supremacy?
Mr Oloyede believes that there is a flux in the state of law where it is not able to give a sacrosanct pronouncement on party supremacy versus the candidate’s supremacy.
He gave his view on the possibility of INEC going ahead to conclude the inconclusive election by depending on the Supreme Court ruling on the case of former Rivers State Governor, Rotimi Amaechi to declare that the people voted for the APC in Kogi and not Mr Audu.
“It rubbishes the freedom of the individuals to vote for a candidate of their own choice if you go by way of the decision of the Supreme Court.
“Ordinarily if the people matter in any decision relating to elections in this country, the Rotimi Amaechi case has no precedence and should not stand.
“What is the whole essence of an electioneering process when the people’s choice is not respected?” he asked, and added, “At that point one would have expected that the court would have ordered a rerun saying ‘Amaechi go and contest, this other man cannot do it’.
“But now Audu is dead, he has garnered some votes. Yes it’s a joint ticket but can anybody say with all sense of responsibility that James Faleke who is his running mate was the one who got those votes? That is the germane question.
“Going by precedence, INEC can conveniently say the election can continue provided that James Faleke will now step in because he had a joint ticket. Then who chooses the deputy governor because this is not a situation where somebody has been declared as the winner, covered by Section 181.
“This is a situation where there is no winner yet. So is it James Faleke that will now choose a deputy governorship candidate to run with him and conclude the election? I think the proper thing is for the election to be rerun all over again with liberty to APC to present another candidate under Section 136:1.”
In his recommendation, Mr Oloyede maintained that there should be a fresh election in Kogi State.
He said that it would be unrealistic to assume that the All Progressives Congress got all the votes it had from the people on its own strength.
He noted that Audu must have been loved by a large number of people for him to have garnered over 200,000 votes and it should not be assumed that a new candidate could have gotten that much vote simply because he belongs to the same party.
He also opined that it would seem unfair to have the votes of the electorate gifted to another person who never campaigned for their votes and whom they did not vote for.
He advised that for the electorate to have a final say in the matter, then they should be presented with another candidate by the APC and allowed to make their own decision in a fresh election.
He expects that the APC would consider Mr Audu’s running mate in order to increase its chances of still enjoying the support of the electorate.
Doctrine of Necessity
Another lawyer, Emeka Etiaba, joined the conversation via the telephone from Abuja and agreed with Mr Oloyede’s recommendation.
He explained that if the Kogi issue was a case of the death occurring before the election, the election would have been postponed for two weeks and a new date would be fixed, giving time to the party to make its substitution.
He stated that “as it relates to law if the election is inconclusive, that means nobody has emerged as winner of that election” and he expects the doctrine of necessity to prevail.
“So my take on it is that, based on the doctrine of necessity, there will still be a postponement of the election and a new candidate to substitute the dead would be nominated by the APC and the election will go on,” he said.
Asked if he agrees with the recommendation of a fresh election, he said, “There should be a fresh poll and the APC will nominate a fresh candidate. They may go ahead and probably now use their deputy governorship candidate and get a deputy for him.” Source: Channels News