It is clear that the Nigeria constitution is silent on the crisis in Kogi’s governorship election following the death of APC candidate, Abubakar Audu. 
Before Audu’s demise, APC was leading by 41,000 votes but INEC declared the election inconclusive and ordered a supplementary election in 91 polling units. Of the 49,000 registered would-be voters in these units, only 25,000 have voter cards. 

Based on this simple analysis, Audu would have won the election but death stole the show and threw a new challenge to the INEC, the party and Audu’s running mate, Mr. James Faleke to battle with.

INEC took a stand with Section 36(1) of the Electoral Act 2011, which empowers it to countermand (cancel) the poll for the 91 polling units it had earlier announced and fix a new date for the poll within 14 days. The effect of this section is that the power of countermand can only be exercised on the death of a candidate and after nomination paper has been filed.

However, the constitution does not explain if the running mate, Faleke could stand for Audu in the supplementary election. INEC only told APC to find a replacement for Audu and in doing so, APC decided to organize primaries to pick a new candidate.

To Faleke, the onus of who becomes the gubernatorial candidate should automatically fall on him, being the running mate, going by the constitution. He petitioned both the INEC ad APC, alleging them of contradicting the constitution.

A look at the constitution showed that the situation in Kogi is a strange legal territory that the 1999 Constitution and the Electoral Act do not envisage the unfortunate circumstance that Audu’s death foists. 

The closest constitutional section that relates to such a scenario is Section 181 which states that  (1) If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy governor shall be sworn in as Governor and he shall nominate a new Deputy-Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State; and (2) Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the inauguration of the house of Assembly, the Independent National Electoral Commission shall immediately conduct an election for a Governor and Deputy Governor of the State.

Now that the election is inconclusive and nobody or party has been declared by INEC as winner, Faleke’s claim looks untenable but looking at it from the fact that Audu was running on the same ticket with Faleke, APC as a party has a lot of work to do in the numbers of petitions it ad so far received.