Under the Electoral Act, 2006 (as amended in 2010), the Governor of a State shall vacate his office at the expiration of a period of four years commencing from the date when he took the Oath of Allegiance and the oath of office. Also, a person shall not be qualified for election to the office of Governor of a State if he has been elected to such office at any “two previous elections.” However, where the election of a sitting Governor is nullified and a fresh election conducted, then if the same Governor gets re-elected in the re-run election, the period he has spent in office before the nullification of the election would be taken into consideration in calculating his four-year term. Pursuant to these provisions (which is also captured in the amended Constitution), the Independent National Electoral Commission (INEC) announced that it would conduct elections in all the states of the Federation in January 2011 except Anambra, Edo, Ondo and Rivers States. The announcement has been greeted with protests from some of the State Governors who were successful in the gubernatorial re-run elections in their various States; the Governors argue that INEC`s decision is a deliberate attempt to give the amended Electoral Act (and the amended Constitution) a retrospective application, which they say the law forbids. To give a law a retrospective effect means to apply it ex post facto, that is, to interpret the law with a view to altering legal consequences (or status) of actions or relationships that existed prior to the enactment of the law.

Generally, it is forbidden that a law should have a retroactive or retrospective application, as this is seen as a violation of the rule of law, which regulates free and republic society; hence most common law jurisdictions (of which Nigeria is one) do not permit retroactive criminal legislation (see for example Article 2, paragraph 7 of the African Charter on Human and Peoples' Rights (Ratification & Enforcement) Act, LFN, 2004; Article 11, paragraph 2 of the Universal Declaration of Human Rights; European Convention on Human Rights (ECHR). However, this is not without exceptions; a law may have a retrospective effect without being technically adjudged ex post facto. Besides, when a law repeals a previous law or a part of it, the repealed legislation would no longer apply to the situations it once did, even if such situations arose before the law was repealed; the new legislation (or amendments) would apply. In the United Kingdom, ex post facto laws are technically possible under the doctrine of parliamentary supremacy (see for e.g., the Pakistan Act, 1990 (UK); the War Crimes Act 1991; the Drug Trafficking Act 1994; the Banking Act 2009, etc). The 28 January 2010 edition of the UK Daily Telegraph reported of how Mr Justice Kenneth Parker, a judge of a High Court in London, had on 21 January 2010 ruled that a retrospective application of the UK Finance Act 2008 as it relates to demands was "in the relevant circumstances proportionate" and did not breach human rights. Also, law may be given a backward-looking effect where common justice or national interest requires it. As the great Lord Denning MR once said, “the law should be used more in the spirit of the legislation than the letter, when making a judgement that re-interpreted certain clauses, thus retrospectively altering the law.”

Again, it is naturally not permissible that a man should eat his cake and still have the same cake at the same time; one cannot have something both ways. The case of Ladoja v INEC [2007] Vol. 10 M.J.S.C ; (2008)40 WRN illustrates this point. Governor Ladoja of Oyo State had then been illegally impeached and was out of his office for eleven (11) months. After his reinstatement and being paid in full all his salaries and entitlements for the eleven months he had been out of office, he nevertheless went to court, asking that his tenure be extended for 11 eleven months, i.e. beyond 2007. The Supreme Court of Nigeria rejected his request on grounds that his was an attempt to have a cake he had already eaten, a case of quod approbo non reprobo (approbating and reprobating at the same time), which the law prohibits.

Granted that in law, when a thing is quashed by a court the effect is that it is deemed never to have existed in the first place, yet in the case of Balonwu v Gov. of Anambra State (2009) 18 NWLR (PT 1172) 13 the Supreme Court held that all actions taken in Anambra State by the then Governor Chris Ngige within the almost three years he was in power were valid notwithstanding the subsequent annulment of his election by the Court of Appeal. This supports the principle that nature abhors vacuum; if the period after the annulment and all actions taken within the period should be adversely affected, then it would necessarily follow that the affected State had no Governor within that period, which would create a vacuum, and consequently throw the State into inconceivable turmoil.

Further to this, the affected Governors themselves cannot deny that they were in power during the period before the annulment of the elections that brought them to office: they took all actions and decisions, and exercised all powers reserved for State Governors during the “nullified” period; they collected and pocketed all the salaries and entitlements meant for Governors of the States during the period. They were and forever in history will remain and answer the Governors of the affected States for the period; and the position would still hold true even if they had lost the re-run elections. Would it then not be reprehensible for the same Governors to now claim that the said “nullified” period should not be taken into consideration in calculating their tenure of office? Are they prepared to return all the monies they have earned during the period in question? Or have they forgotten that he who comes to equity must come with clean hands? On the argument that the fraud allegedly perpetrated during their elections, and upon which the elections were later quashed, was not their (the Governors`) fault since the elections were conducted by INEC, it is submitted that this should not avail the Governors, seeing that they took active part in the whole thing and are the direct beneficiaries thereof.

Moreover, endorsing the position of the affected Governors will spell doom for Nigeria and its democracy; it would amount to encouraging election rigging by candidates who plan to have extended terms on the basis of fraudulent elections. A Governor could end up taking oath of office three or four times and accordingly fraudulently spending 11 to 13 years in office within the two terms of office guaranteed by the Constitution. This would be inequitable, a case of hiding under statutory provisions to perpetrate fraud. In ALERO JADESIMI v. FRED EGBE [2003] 36 WRN 79 21st May 2003, the Court of Appeal reiterated the age-long maxim that equity will not allow the law to be used as an engine of fraud. The law does not operate alone; equity follows the law, not sheepishly nor slavishly, but to ensure that justice is attained in every case. Selfish aspirations of few individuals should not be allowed to triumph over the collective interests of Nigeria and its democracy.

Acceding to the Governors' positions would go against the real intentions of the framers of the Constitution, who, it is suggested, could never have intended that an elected Governor should spend more than two terms of four years each in office. The Mischief Rule of statutory interpretation requires that the intention of the law-makers must be borne in mind in applying the provisions of a statute (see AWOLOWO V. SHAGARI (1979) 6-9 SC 51). Besides, the Constitution must at all times be given a liberal and purposive interpretation. In BRONIK MOTORS V. WEMA BANK (1983) 1 SC 296; (1983) NSCC 226, Hon. Justice Idigbe JSC stressed that where the application of the words of an enactment in their ordinary meaning would produce an absurd or repugnant result which cannot be reasonably supposed to have been the intention of the legislature, the language may be varied or modified so as to avoid such absurdity. (See also Lord Denning in MSRD v. NEWPORT CORPORATION (1950) 2 ALL ER 1226 at 1236; AG ABIA STATE v. AG FEDERATION [2003] 19 WRN 1 SC). Finally on this point, the Supreme Court of Nigeria made it clear in PETER OBI v. INEC that “for the avoidance of any doubt, this judgment affects the office of the Governor of Anambra State alone.” The Supreme Court gave this warning in anticipation that some Governors might in future want to unconscionably rely on the same case to illegally extend their tenure, such as we are witnessing now.

What is more, in a letter to Justice William Johnson of the United States, Sir Thomas Jefferson, a founding father and 3rd President of the United States of America, had this to say: "on every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed." The truth therefore, based on all the above, is that each of the agitating Governors have used up the period in question, and whether wrongly or rightly, they have spent it and cannot have it back; they cannot eat their cake and have the cake at the same time, for their selfish reasons, in disregard of the interest and sustenance of constitutional democracy and rule of law in Nigeria. This is captured in the Latin maxim, non tibi illud apparere si sumas potest (you cannot have back what you have already spent); or illud apparere si sumas potest (you cannot eat your cake and still have it). God bless Nigeria!

By: Sylvester C. Udemezue, Lecturer, Nigerian Law School, Victoria Island, Lagos (0802 136 5545, [email protected])

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Articles by Sylvester C. Udemezue