That AGF’s Substitution Advice to INEC

AGF . Abubakar Malami SAN

The new Attorney General of the Federation (AGF) and Minister of Justice, (MOJ) Abubakar Malami SAN (photo: above) has said that the All Progressive Congress (APC) will substitute its governorship candidate in the Kogi State governorship election.

This is coming on the heels of the sudden death of the candidate of the APC, Prince Abubakar Audu, before the last Saturday’s election was concluded.

The AGF who spoke in Abuja at a seminar organized by the Nigerian Law Reform Commission (NLRC) on the reform of the National Environmental Standards and Regulation Enforcement Agency, NESREA (Establishment) Act said the Kogi election has to be concluded.

Malami said that APC would have to substitute its candidate for the purpose of the supplementary elections. By implication this is an advice to the Independent National Electoral Commission (INEC) to oversee the APC primary election – to put forward a new governorship candidate for the Kogi reruns in some 91 polling units.

He however did not say if the party deputy governorship candidate would automatically step in as the party candidate – a position canvassed by some lawyers.

As expected, the main opposition Peoples Democratic Party (PDP) rejected the suggestion in toto. The PDP immediately told the Attorney General to resign his appointment forthwith for having the effrontery to advise such a thing.

The National Publicity Secretary of the PDP, Olisa Metuh, in a strongly worded statement said, inter alia:

“The party is shocked that INEC, a supposedly independent electoral umpire, could allow itself to succumb to the antics of the APC by following the unlawful directive of an obviously partisan AGF to substitute a candidate in the middle of the ballot process . . . “

That substitution advice as far as the 1999 Constitution (as amended), the Electoral Act and any other written law is concerned, whatsoever, – is null and void and of no consequence.

Kogi . APC guber candidate, Abubakar Audu buried

Photo: Prayers before the burial of APC Kogi state governorship candidate, Prince Abubakar Audu.

However, there is a standing circumstance that must be fulfilled – and that is constitutional. A government and by inference, a governor and his deputy must be installed at a constitutionally prescribed period, if not date, in order not to leave Kogi state in a state of governmental or administrative vacuum.

I wonder whether the AGF is cognizant of the ramifications of his substitution advice to (INEC) and the APC. Is he enacting the Doctrine of Necessity?

The aftershocks of the AGF’s advice to both INEC and the ruling APC may yet rebound. I can foresee the PDP going to court to challenge the AGF on this score.

I still think that the Supreme Court (photo: below) has a role to play in all these. The apex court should make a pronouncement on these contending issues – since the drafters of the Constitution and the Electoral Act did not anticipate any death throes rearing its head in the middle of an election. There is no law that covers the AGF’s advice.

Supreme Court of Nogeria . Chambers Room

Suffice it to say that the Supreme Court cannot on its own make any pronouncement unless it is approached to that effect. The AGF, APC and/or indeed, the PDP, should approach the apex court, not for it to interpret the Constitution, because it does not provide for death throes in an election, but to pronounce on this political and legal quandary.

That AGF’s Substitution Advice to INEC is fraught with anxiety and may be undesirable as INEC proceeds with conducting a rerun in Kogi state.

By Nnamdi Ebo


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