Section 34
Death of a candidate(1) If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner shall, being satisfied of 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 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.
(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
(b) in the case of election into a 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 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.
This section outlines the procedure to be followed where a candidate dies before and during elections. By so doing, it fills a gap in the repealed Act which failed to provide for situations where a candidate dies before election results are announced and a winner declared.
Before elections: the INEC Chairman is to cancel an election where a candidate dies before commencement of elections and appoint another convenient date within 14 days. It takes away this power from a Resident Electoral Commissioner as contained in the repealed Act.
During elections: New subsection (3) empowers the Commission to suspend elections in cases where a nominated candidate dies after commencement of polls but before the announcement of result and declaration of winner for a period not exceeding 21 days upon being satisfied of the death.
For elections to legislative houses: The election shall start afresh, and the political party of the deceased candidate if it wishes to continue, may conduct a fresh primary within 14 days of the death of its candidate to nominate a new candidate.
Note: Use of the word may suggests discretion for the parties. By law, parties are not mandated to field a candidate for an election
For elections to executive positions: In the case of a Presidential, Gubernatorial or Federal Capital Territory Area Council election, the running mate shall continue with the election and nominate a new running mate.
The background to this new provision in the Act came from the 2015 Governorship election in Kogi State where the (All Progressives Congress) APC candidate Prince Abubakar Audu died before the result was announced. The previous Electoral Act had a lacuna that did not address this scenario.
Yahaya Bello was picked by APC to replace its late candidate, Mr. Audu. Audu Abubakar’s running mate, James Faleke objected to the party’s decision and approached the election tribunal in the state asking it to declare him governor-elect.
The Supreme Court in applying the existing law to the situation and considering section 33 of the Electoral Act, 2010 (as amended) and Section 181(1) of the 1999 Constitution (as amended) held that the since the election was declared inconclusive by INEC and no candidate was returned as winner, Abiodun Faleke, the running mate of the late Prince Abubakar Audu was not entitled to step into the shoes of the gubernatorial candidate.
“At pages 1613 -14 of the record, the lower court found as follows: “… with the death of Prince Audu before the election could be completed and a due return made therein, the candidates’ status radically changed. Prince Audu’s right to contest the election as the Governorship candidate of the APC naturally expired upon his demise and by same token, the appellant’s legal right as the Deputy Governorship candidate of the deceased also followed suit. He was the nominee of the deceased and as a result of the inconclusive election coupled with the sudden and unexpected exit of Prince Audu, he acquired no legal rights under section 181(1) of the Constitution. That being the case, by a combined reading of the section 221 of the Constitution and section 137(1) of the Electoral Act, the law recognizes that the APC has a legal right/interest in the votes cast as a juristic person, it became the “last man standing” as it were. It therefore had a right to substitute the deceased Governorship candidate by virtue of section 33 of the Electoral Act…. This it subsequently did upon the express invitation to do so by the 1st respondent in its Public Notice, exhibits P27 and R5. I am of the view that the above analysis represents the correct position of the law. No doubt the situation would have been different if the election conducted on 21/11/2015 was conclusive and the joint ticket of Prince Audu and the appellant declared and returned as the winner of the election. The provision of section 181(1) of the Constitution would have become applicable. However, in the circumstances of this case, with the election held on 21/11/2015 being declared inconclusive and the Governorship candidate. His status remained that of a Deputy Governorship candidate, particularly as he did not participate in the party’s primaries, which is a pre-condition for anyone seeking elective office.”
