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The Federal High Court sitting at Abuja recently struck a devastating blow against the Constitutional right of the electorate in some States of Nigeria to go to the polls every four years to determine who shall be their governor. A critical aspect of this right is the right of the electorate to determine every four years whether the individual who had presided over their affairs for the four previous years is deserving of re-election or should be consigned to the dustbin of history.

On Wednesday February 23, 2011, Justice Adamu Bello of the Federal High Court, Abuja held that Governors whose elections were nullified by the Court of Appeal following the irregularities of the 2007 elections but who subsequently won the repeat elections ordered by the Court of Appeal would have their tenure computed from the date they were re-sworn into office after the repeat elections. Based on such computation, the tenure of those governors would only terminate on the eve of the 4th year anniversary of their second inauguration, ensuring that the Governors remain in office well beyond the April 2011 elections. The Governors who stand to benefit from this ruling are the Governors of Adamawa, Bayelsa, Cross River, Delta, Kogi and Sokoto States.

It may be argued that Justice Bello simply applied the provisions of the 1999 Constitution as at the time of the 2007 elections in arriving at his judgment. But the provisions of the 1999 Constitution on the matter of commencement of the tenure of the governors is not so clear cut as to be given to a single interpretation or warrant uncritical application. In such a situation, a judge has the duty to himself and to society to be more creative in pursuit of the cause of justice. Unfortunately, judicial creativity was not invited into the inner Chambers when Justice Adamu Bello was writing his ruling.

One continues to be amazed at the extent to which our courts would go to avoid playing a creatively progressive role in establishing a truly just society and deepening Nigeria’s democracy. The law, as every first year Law student learns on his very first day in a Law class, is an instrument of social engineering, a tool which society relies upon to right the wrongs either inherent in or artificially imported into the fabrics of the society. The one institution most strategically positioned to deploy the instrumentation of the law to achieve this noble goal of engineering a better society is the judiciary, the interpreters of the law. This role is of course the primary mandate of legislators, but those are politicians often driven by and committed to goals outside of and often contradictory to the best interest of the people. The judiciary is not saddled with the baggage of politics. At least it is not supposed to be, and so they step into the breach when legislators have dropped the ball. In playing this sacred role, the judiciary is expected, indeed required, to take advantage of every available lacuna in the law to deploy the law to serve the cause of justice and promote the best goals and interest of the society. The recent judgment of the Federal High Court does neither.

I cannot in all good conscience subscribe to the judicial pronouncement interpretation that the effect of the nullification of a Governor’s election subsequent to his inauguration into office is to bless him with an extension of his tenure as governor. I believe that a more analytical, objective and yes nuanced, study of the relevant provisions of the 1999 Constitution, studied under the light coming from the lamp of the intention of the framers of the Constitution, would suggest a contrary viewpoint.

First, the Court of Appeal only nullified/reversed the ELECTION of those Governors. The Court did not nullify or invalidate the OATH OF ALLEGIANCE AND OATH OF OFFICE taken by the Governors on May 29th 2007. The assumption that the nullification of their initial election occasioned a commensurate invalidation of the oaths of office they had earlier taken, to my mind, a faulty and absurd proposition.

By virtue of Section 180(2) (a) of the 1999 Constitution, the tenure of a State Governor commences on the date he ‘took the Oath of Allegiance and Oath of Office’ and terminates four years from that date. The Constitution does not anchor the governor’s tenure or the date of its commencement on his election but on his taking of the Oaths of allegiance/office. Consequently, unless the oaths of allegiance/office taken by a governor were invalided, his tenure of office must be taken to have commenced on that date of first oath taking.

Why did the Court not specifically invalidate the oaths alongside the elections? It might be that the Lords of Appeal did not contemplate this interpretation that taking the Oaths of Allegiance/Office is a Constitutional procedure distinct from the election itself, with different Constitutional underpinnings and legal implications. But I prefer to believe that the reason is that the Court of Appeal knew the Oaths of Allegiance/Office were validly administered regardless of the irregularity of the elections but chose not to pronounce on the validity of the oaths because the petitioners did not seek such reliefs.

As at the time the governors took the oath of office, the law recognised them as governors-elect. When their election was later nullified, their oath of office was not nullified because the oath was not tainted by any fraud or irregularity, as it was anchored on their certificate of return of elections validly issued by INEC. This is one fact that seems lost in our discourses on the epidemic nullification: that the election that brings a candidate into office, though subsequently nullified, is not totally ineffectual and legally insignificant as it serves as a valid foundation for the valid administration of the oaths of allegiance/office, the most important element being the possession by the candidate at the time of oath taking of a Certificate of Return issued by INEC. The issuance of a Certificate of Return by INEC to a candidate (or non-candidate) is a crucial intervention that confers on the subsequent oath-taking a legitimacy that a defective election could not confer. Thus, the relevant governors’ election in 2007 having been legitimized by INEC’s certificate of Return was valid and effectual enough to provide a basis for their taking the oaths of allegiance/office and thus triggering a tenure commencement.

It is a truism that ‘government does not admit of a vacuum’. If the law holds that the oath taken by a Governor-elect was invalid just because his election was subsequently nullified, this would mean that for the period he served as Governor between his inauguration date and the date his election was nullified, there was no government in his States, and every action he took as governor during that period was invalid: every enactment he signed into law, every budget he passed, every appointment he made, every promotion he approved, the salaries and allowances he received, were all illegitimate and should be reversed.

Thus the validity of the initial oaths taken by the Governors, regardless of subsequent nullification of their initial election is further buttressed by the fact that all actions they took after their initial inauguration remain valid and legal. Laws they signed as State Governors remain valid and subsisting. Indeed that is why individuals who served a few years as governor before their election was nullified could still rightly be called former Governors. They might not have been validly elected, but they held office validly as governors, for the simple reason that the Governor’s Oaths of Allegiance/Office were administered to them.

If therefore the Constitution stipulates that the four-year tenure commences from the date a Governor ‘TOOK THE OATHS OF ALLEGIANCE AND OFFICE’, instead of the date he was ‘ELECTED INTO OFFICE’, it raises serious issues for constitutional interpretation, considering that while the elections could easily be nullified, the Oath of allegiance/office once taken cannot be so easily nullified, as that would then expose every act of the government to claims of illegality. If the Constitution had tied the commencement of a governor’s tenure to [the date of] his election, then subsequent nullification of his said election will affect the computation of his tenure and the commencement thereof.

Again, the Constitution does not link the taking of the Oath of Allegiance/Office with victory at elections. In the section that deals with Oaths of Allegiance/Office and commencement of tenure, the Constitution is remarkably silent on the election that brought the individual to the podium. This is neither immaterial nor insignificant. There must be a reason the Constitution chose to focus on date of inauguration as the basis for computation of tenure instead of date of election. The assumption that nullification of the election automatically invalidates the Oaths of allegiance/Office is therefore highly debatable.

When we step back from the LETTER of the Constitution and consider its SPIRIT, we have an even stronger plank to stand on to contend that the oaths of allegiance/office are the proper anchor for tenure computation. The intention of the draftsman is a hallowed pillar of statutory interpretation that becomes even more hallowed when it is the Constitution that is at issue. Could it have been the intention of the framers of the 1999 Constitution of the Federal Republic of Nigeria that one person could serve for many years as State Governor, and then because his election is nullified and he wins the re-run (which of course he could never lose, having been fully empowered by the resources of State under his command), he proceeds to serve another four-year tenure that totally discountenances the period he had already served? What if the results of the repeat election were again successfully challenged and another repeat election ordered a few years into this second coming? Are we not then confronted with a scenario where the man could potentially serve up to ten years as Governor as a result of the nullification of his initial election? Could this have been the intention of the framers of the Constitution? Does such an absurdity reflect the Spirit of the Constitution?

Delta State presents a perfect illustration of the far-reaching absurdity of this scenario. After almost four years as Governor, Emmanuel Uduaghan’s 2007 election was nullified in late 2010, a mere few months before the next election cycle. He stood in the re-run and won again. Based on this judgment of the Federal High Court, Uduaghan will now serve for the next four years as Governor, making him Governor of Delta State for a total of almost eight years based only on one election cycle. Could this have been the intention of the framers of the 1999 Constitution? How does this interpretation advance the rights of the people Delta State whom the Constitution has given the right to choose their governor after every four years?

The same Constitution that Justice Bello relied upon to compute a fresh tenure for these governors that keep them in office beyond 20011 is the same Constitution that guarantees the right of the people to review their governors’ performance every four years. In the event of conflict between the right of the governor and the right of the generally of the people, I have no doubt which right should be supreme.

Perhaps by the time this piece is published, Justice Bello’s judgment would have been appealed to the Court of Appeal. I am concerned though that there is not enough time left between now and the April 2011 elections for the Appeal Court to make an intervention that would preserve or rather restore the rights of the electorate in the affected states as they relate to the April elections. Indeed, this matter is generally too important to be left to Nigeria’s dysfunctional appellate process. This is a matter of Constitutional interpretation that calls for the immediate intervention of the Supreme Court, and that under an accelerated process. This is a matter so crucial to the progress of Nigeria’s democracy, and so fundamental to the understanding of the workings of our Constitution that only a pronouncement by the Supreme Court would do justice to the magnitude of the issue. And every effort should be made to get the matter before the Supreme Court as soon as judicially possible. We cannot afford the time it would take for this matter to finally berth at the Supreme Court in the form of an appeal from the Court of Appeal.

Nor should it be left to INEC alone to continue to pursue this matter, more so since, ideally and in truth, INEC should not be seen to be aggressively pursuing the objective of conducting elections in areas where the court has declared that there is no vacancy. It is not INEC’s duty to make a case either for or against the elongation of the tenure of any elected official. The opposition parties, the Nigerian Bar Association, and other civil society groups, should get involved. Everybody has locus standi on this matter. The totality of the Nigerian electorate has an overriding stake in the matter. The cause of democratic justice is at stake here. The rights of the people of these States who are about to be disenfranchised are at stake.

There cannot be any justice in compelling the people to continue to have as their governors for more than four years persons whom they may well be desirous of replacing. These governors have been in office for four years, as was intended by the framers of our constitution. The few months they stepped out of office pending the repeat elections were merely a brief hiatus no more than an annual vacation. It is sad that a Governor could be in office for two or three years (or close to four years in the case of Delta State) and take a couple of months vacation only to be rewarded with an extra two, three or four years in office. I do not intend to say anything here of the palpable injustice of these governors benefitting from irregularities perpetrated either by them or with their knowledge and connivance, or at least on their behalf.

In the short term, whichever court has the first opportunity to review this judgment, whether the Court of Appeal or the Supreme Court must issue an interim order that allows INEC to conduct the April governorship elections in the affected states. If after the elections the Court upholds the judgment of the Federal High Court to the effect that the tenure of the governors still subsists, they can then resume their stewardship regardless of the outcome of the April 2011 elections. There is already precedence for this approach. In April 2007, even as Governor Peter Obi was at the Supreme Court seeking interpretation on the rightful tenure of his much beleaguered first term in office, INEC went ahead to conduct governorship elections in Anambra State. After the election, PDP’s Andy Uba was declared winner and was duly sworn in. Not long thereafter, the Supreme Court ruled that as at the time of the elections, there was no vacancy at the Anambra State House as Peter Obi’s tenure as Governor was still valid and subsisting. Andy Uba had to step aside and Obi resumed his mandate. I see no reason why this precedence should not be applied in this particular case which deals with a much weightier Constitutional question than the Obi vs. Uba skirmish.

In the alternative, the Court should grant an injunction suspending governorship elections in these states. If that implies the Speakers of the Houses of Assembly functioning as Governor after the elections, so be it. That is a small price to pay to negotiate our way out of this dark morass and emerge into the bright light of true democracy.

In the final analysis, while it is highly debatable that the judgment of the Federal High Court in this matter reflects the provisions of the 1999 Constitution, what cannot be in doubt is that the judgment reflects neither the spirit of the Constitution nor the basic tenets of democratic practice. Equally incontestable is the fact that the judgment cannot possibly reflect the intention of the framers of the 1999 Constitution of the Federal Republic of Nigeria.

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