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RUMPUS OVER TENURE ADJUSTMENT

By NBF News

•Uduaghan
A judicial pronouncement that promises to alter the preparation of the Independent National Electoral Commission (INEC) for the April elections and the nation's political landscape was delivered in Abuja during the week. A judge of the Federal High Court in Abuja ruled that all gubernatorial candidates jostling to take over from incumbents in Bayelsa, Cross River, Kogi, Sokoto, Delta and Adamawa states are out of order.

Justice Adamu Bello deferred their dreams as he extended the tenures of the sitting governors of those states. The judge barred INEC from conducting governorship elections in the affected states. He ruled that the tenure of Governors Timipre Sylva (Bayelsa), Liyel Imoke (Cross River), Ibrahim Idris (Kogi), Aliyu Wamakko (Sokoto), and Murtala Nyako (Adamawa) would expire next year, not on May 29. Interestingly, all of them are from the stable of the Peoples Democratic Party (PDP).

Their departure dates differ though, Idris will leave office on April 5, 2012, Nyako will go on April 30, 2012, Wamakko will stay till May 28, 2012, while Imoke is to remain in office till August 28, 2012. Delta State Governor, Emmanuel Uduaghan, who won a rerun election on January 6, 2011, may equally benefit from the judgment, having joined the suit after winning the rerun poll. He will go in 2015.

Dissentions
Although, legal minds like Niyi Akintola, SAN, Prof. Itse Sagay, SAN, and Emeka Ngige, SAN, all hailed the pronouncement, politicians, particularly those whose dreams were suspended, were sad with the development. Both the candidates of Labour Party (LP) in Bayelsa, Timi Alaibe, and CPC in Adamawa, Buba Marwa, rejected the ruling, asking the Federal Government to appeal against it. Whether the PDP-controlled Federal Government would appeal the judgment is yet to be seen.

Senator Olorunnimbe Mamora, Deputy Minority Leader of the Senate, was equally not impressed. He said the judgment did not take into cognizance the provisions of the Electoral Act as amended. According to him, 'It seems to me that we are in for a rough time. Conflicting judgments is not good for our democracy.

'Conflicting court pronouncements create crisis and instability in the system and we are constrained by time.

'We must begin to get serious in all that we do,' he said.

The governorship candidate of the CPC in Bayelsa State, Famous Daunemighan, also lamented the ruling, saying it did not reflect the yearnings of Bayelsans for change. According to him, it will further prolong the suffering of the people for another year. The ACN in Bayelsa also described it as a great challenge to evaluate intellectual content and readiness of Bayelsans, the stakeholders, the political parties and indeed the various governorship candidates for the April elections to take their destinies in their hands.

The INEC has nevertheless, indicated its intention to appeal against the judgment and asked that the case be fast-tracked. Its lawyers are said to be studying the judgment with the intention of picking legal loopholes in it.

Argument and contradiction
Justice Bello held that in line with Section 180 of the 1999 Constitution, the governors' tenure legally began in 2008, and not in 2007, since the courts had voided the 2007 polls that brought them into office.

He said the amendment to section 180 of the 1999 Constitution could not have a retroactive effect since the rerun elections had taken place before the amendment.

Justice Bello said, 'INEC cannot validly conduct elections in the five states until 60 days to the expiration of the tenure of the present occupants. The notice of elections, received nominations and time-table issued by INEC for the April 2011 elections in the states are unlawful, illegal and contrary to Section 180 of the 1999 Constitution.' Unless a higher court intervenes with a contrary interpretation, the governors affected by the judgment would remain in power till 2012. This prospect raises immediate constitutional issues.

In the recently amended 1999 Constitution, Section 135 addressing the subject of governors' tenure was altered in subsection 2. The newly inserted paragraph (c) provides that: 'In the determination of the four-year term, where a re-run election has taken place and the person earlier sworn in wins the re-run election, the time spent in the office before the date the election was annulled shall be taken into account.'

The fact that this ruling was obtained at the High Court means legal challenges that could go all the way to the Supreme Court are a very real prospect.

History of tenure elongation
The first acid test for tenure elongation or starting afresh after a voided election was in the case of Peter Obi vs INEC, Andy Uba, and others in 2007 where the Supreme Court through Hon. Justice Aloysius Katsina-Alu ruled that it would amount to a subversion of the 1999 Constitution to give any judgment that does not promote the spirit of the foremost national legal document. Obi had contested the governorship election of Anambra State in April 2003 and lost to Dr. Chris Ngige, whom Maurice Iwu returned as governor and was sworn in on May 29, 2003.

Obi, who ran on the platform of the All Progressive Grand Alliance (APGA), approached the Election Tribunal and won. He took the oath of office on March 17, 2006 for the first time. But in 2008, INEC commenced preparations for the conduct of a fresh governorship election in Anambra State. Obi sued INEC and sought an interpretation of section 180(2)(a) of the 1999 Constitution to the effect that his tenure had not ended, having begun on March 17, 2006, and should expire on 17 March, 2010.

While the suit was pending, INEC held fresh polls for the office on April 14, 2007, which Uba won and was sworn in on May 29, 2007.

On June 14, 2007, the apex court granted Obi's relief and held that section 180(2)(a) of the Constitution allows a four-year term for governors from the day they were first sworn-in. Uba was directed to vacate the office to enable Obi exhaust his term, because the office was not vacant as at May 29, 2007, when Uba was sworn in. After being sworn in on March 17, 2006, his tenure was, however, not elongated even by a single day by the court. Justice S.A. Aderemi, JSC, who gave reasons for the lead judgment on July 13, 2007, said: 'Obi's calculus would apply in those peculiar circumstances to governors who were not previously on sit.'

Implications
The judgment could have implications far beyond the deferred gubernatorial dreams. As in many general elections, candidates tend to ride on the bandwagon of stronger contestants in their parties. That opportunity has vanished with the judgment. They will have to carry their cans alone.

Another implication could be in the shape of a demoralised opposition gubernatorial candidates whose aspirations have been shackled.

They are unlikely to commit their resources to the party's cause with the same zeal as before the ruling. This could negatively impact on the chances of candidates of parties like CPC at different levels in places like Adamawa and Sokoto states, and the LP in Bayelsa, where opposition candidates were poised to spring surprises. Although, the latest ruling may be challenged and reversed, the truth is that there won't be gubernatorial election in those states in April as the process of reversing the ruling might not be very swift. It could as well drag into 2012.

However, the flipside to the verdict is that it offers a breather to INEC. With the latest ruling, the commission won't have to bother with gubernatorial election in 10 states across the country. Apart from the five states, there won't be gubernatorial election in Edo, Ondo, Anambra, Osun and Ekiti states, because the sitting governors reclaimed their mandates from PDP governors, who the court ruled that they illegally occupied the positions in the first instance. Political analysts claim the breather for INEC could avail the commission the choice to move its staffer round during the gubernatorial election.

Whichever way the pendulum swings, the nation's jurisprudence and democracy promises to be the better for it.


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