TENURE ELONGATION FOR 5 GOVERNORS: THE TRIAL OF THE CONSTITUTION

• Oni
A Federal High Court in Jos in 2010, made a definite pronouncement on the controversies surrounding the tenure of governors who won re-run polls after the 2007 general elections. The presiding judge, told ex-governor Segun Oni, that the re-run election ordered in Ekiti State in 2009 was not a fresh poll, but a 'Supplementary Poll.'

The judge declared: 'the whole exercise formed part of one election. The court did not annul the whole election but only10 out of the 16 local government areas of the state, and so, there should not be a second tenure.'

The avalanche of petitions, enquiries and the court pronouncements forced the Independent National Electoral Commission (INEC), to embark on a three-week consultation. At the end, its legal unit exhaustively proposed that the governorship elections must proceed in the five contentious states of Kogi, Sokoto, Adamawa, Cross Rivers and Bayelsa states in April 2011.

A statement by the Secretary to INEC, Abdullahi Kaugama reads in part: 'Pursuant to the powers conferred on the Independent National Electoral Commission by the Constitution of the Federal Republic of Nigeria, 1999 (as amended, the electoral act 2011 and all other powers conferred on it on that behalf, the INEC hereby informs all stakeholders and the general public that the governorship elections will hold in all states of the Federal Republic of Nigeria in January, 2011 except in Rivers, Edo, Ondo and Anambra states where governorship elections will hold as indicated below: Rivers June 2011; Edo (July 2012); Ondo (November 2012); and Anambra (November 2014).

æThe above clarification is necessitated by the amendments to section 180 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and judicial pronouncements on the tenure of state governors.

'All political parties are hereby requested to make preparations to nominate candidates for the elections accordingly.' Section 180(2) of the amended Constitution, which INEC relied on says, 'In the event of a re-run election, the time spent in office before the date the election was annulled, shall be taken into account.'

With preparation for the governorship elections in the affected states in full gear, a federal high court in Abuja yesterday stopped INEC from going ahead with elections in the affected states.

The court held that the tenure of the five sitting governors shall not expire until sometimes next year.

The two rulings from courts of co-ordinate jurisdictions have raised issues of law and the constitution. In the first instance, the judgment of Federal high court Jos is yet to be vacated by any appellate court. The other is the pronouncement of appropriate authorities, like Supreme Court on the matter and the primacy of the constitution, the supreme law of the land in the matter.

The chairman of the human rights committee of the Lagos branch of the Nigeria Bar Association (NBA), Chief Frank Agbedo, contends that parties to the suit ought to have relied more on the Supreme Court ruling on it previously which states that tenures of governors starts on the day they take oath of office. He also believes that judgments from courts of equal powers will do very little to untie the knot. According to him, if the issues canvassed at the Federal High Court, Jos, were the same at the Abuja High Court, then there is a problem, necessitating the intervention of a superior court.

Agbedo picked holes on the retroactive nature of the application of section 180(2) of the constitution, saying you can't use a new law for an old case. On whether INEC could seek for a stay of execution, he averred that since the judgment was declarative, 'a court of law cannot grant stay of execution on a declarative or executionary judgment.' But John Bayeshea(SAN), has a contrary view. He said INEC, is right for giving effect to the amended 1999 constitution.

'We have been looking for solution to this situation of these so-called re-run elections when people, by default, will take advantage of a re-run election to elongate their tenure of office much to the displeasure of overwhelming majority of the electorate in Nigeria. 'Actually Nigeria is the only country in the democratic world with such a funny

arrangement, whereby the tenure of some people will be elongated just because they went for a re-run election.

'The issue really is that the election that was challenged was not credible. The re-runs that we have had are hardly, if ever credible. So, we are dealing with multiple credibility problems.

Therefore, we have come to a situation that we should stop this anomaly because it is antithetical to democratic process and principles, and even practices. I support INEC and if the commission is taking umbrage under the amended constitution, I am happy because it means that the amended constitution has cleared the mess.

'The issue of whether the constitution is retrospective or prospective should be left for the court to resolve. Bear in mind, that there is a federal high court judgment on the tenure of Ekiti state governor on this matter.'

Another senior Advocate of Nigeria (SAN) Mr. Israel Olorundare however supports Agbedo's positions. For him, 'if we are to go by the provisions of the 1999 constitution, the operative word is when he took the oath of office. Since these governors' elections were nullified, it means nothing had taken place. And having won re-run polls their tenure began the day they were sworn-in for the second time. So their tenure cannot end in 2011.

'The law regarded their first oath as a nullity by virtue of the cancellation of their election. If another person had won the re-run poll in any of the six states, will INEC say that his mandate will end in 2011.'

These averrments bring to the fore, a looming crisis of confidence in our laws and the constitution, and the obvious propensity of a disordered electoral system. Sentiments about the right or wrong in those who won re-run elections serving four years from dates after the elections are constitutional matters that are better left for the supreme court to determine. INEC may do well not to seek the advise of the Attorney-General of the Federation and Minister of Justice because as a member of the Peoples Democratic Party(PDP) which was a party to the Abuja suit, his position will be obvious.

With just a few weeks to the elections, and so much on its plate, INEC may do well to head to t he Supreme Court for a judgment consolidation, and save the candidates already jostling for position in these states much ordeal and anxiety.