TENURE ELONGATION: SUSPENSE AS 5 GOVS WAIT ON S'COURT
By Emmanuel Aziken, Political Editor & Ikechukwu Nnochiri
THE Supreme Court, yesterday, put five of the nation's Governors in suspense as it reserved judgment indefinitely on the suit brought before it to determine the validity of the tenure of the five Governors whose tenure were renewed upon fresh elections.
The decision of the apex court to put judgment sine die followed conclusion of hearing in the suit. It is expected that the court would give its judgment on a date of earliest convenience. Yesterday's decision of the Supreme Court has put the Independent National Electoral Commission, INEC, political parties and their candidates for elections in the five states in a heightened state of anxiety.
The anxiety of the Governors is based on the possible consequences of the judgment on the appeal by INEC to reverse the decision of the Court of Appeal which upheld the ruling of a lower court that gave fresh term to the five Governors whose elections in April 2007 were invalidated. A reversal of the judgment would inevitably throw all five Governors out of office. All but one of the Governors, that is Governor Idris of Kogi, are in the first term in office and are as such eligible for a second term in office.
Timipre Sylva, Bayelsa Governors Ibrahim Idris, Kogi; Muritala Nyako, Adamawa;Aliyu Wammakko, Sokoto and Liyel Imoke, Cross River
The five affected Governors are Ibrahim Idris of Kogi state, Aliyu Wammako (Sokoto), Murtala Nyako (Adamawa), Liyel Imoke (Cross River) and Timipre Sylva (Bayelsa).
A judgment upholding the decision of the Court of Appeal which affirmed the extension of the tenure of the five may be of no material significance to the schedule and position of the stakeholders in the affected states.
However, a negative decision would have the immediate effect of throwing all five Governors out of office with the temporary elevation of the Speakers in the affected states as acting Governors in the three months within which INEC would be expected to conduct fresh elections. There were speculations, yesterday, that the court could give the judgment before this Saturday's rescheduled gubernatorial elections in Kogi State.
Four year tenure
At yesterday's hearing a team of four Senior Advocates of Nigeria who argued for INEC insisted that the four-year tenure of the governors commenced on May 29, 2007 when they were firstly administered Oath of office and Oath of Allegiance.
INEC argued that the fact that various Divisions of the Appeal Court subsequently nullified their respective elections did not render the said Oaths null and void, stressing that decisions taken by the respondent before 2008 when the re-run elections held were deemed legal and valid in they eyes of the law.
Consequently, it pleaded the apex court to set-aside the lower court judgments that extended the tenure of the governors on the premise that it erroneously construed the provision of section 180(2) of the 1999 constitution.
Specifically, INEC contended that 'the learned justices of the court of appeal erred in law and occasioned a gross miscarriage of justice when they held that the oaths subscribed to by the governors pursuant to their victory in the re-run elections conducted in the states were the oaths of office and of allegiance taken by them as persons first elected as governors under the constitution.'
The hearing further got an added piquancy when two of the amicus-curiaes in court urged the panel to go ahead and sack the five governors both in the interest of justice and in-line with the spirit of the constitution.
Presenting the briefs containing their advice to the apex court on the matter, the two amicus curiaes, Prof. Itse Sagay, SAN, and Chief G.O.K. Ajayi, SAN, argued that the said section 180(2) focused on the date the tenure of the governors commenced and not on the Oath they subscribed to.
Ajayi said: 'My lords, this matter raises issues that touches on the foundation of our democracy and we must ensure that the constitution prevail. Constitutionally, a governor has no vested right, he is a trustee of the people and exercises the mandate that was delegated to him by the people.
'The cause of action in this appeal arose after the constitution was amended, professor Jega who listed the five states for election in April this year was not the INEC chairman in 2007 when their respective elections were annulled', he added.
De-facto governors
In his submission, Prof Sagay, described the respondents as de-facto governors, saying though the process that brought them in was invalidated by courts, the actions they took remained valid.
'My lords, some of the laws we are applying in Nigeria today were passed by governments that came into power illegally, some of the heads of state still attend council meetings and receive their pension, should we now because they came by means of illegality, turn blind to the period they spent in government?
'Same applies to the governors in the instant case, some of them even appointed Judges to the NJC, should we now say that such appointment became a nullity since their elections were nullified? The answer is no!', he added.
However, differing from them, Chief Richard Akinjide, SAN, advised the apex court to uphold the decision of the Court of Appeal so as not to create absurdity in the interpretation of section 180(2) of the constitution.
He said: 'it is my view and I so submit that the Oath of Allegiance and Oath of Office taken by the 1st Respondent on May 29,2007 based on the nullified election cannot be a valid reference point for the calculation of the four-year term of office. His four year tenure started to run, in law, following the April 30, 2008 Oath of Allegiance and Oath of Office taken pursuant to the re-run election as ordered by the Court of Appeal.'
Meanwhile, the Peoples Democratic Party, PDP, through its national legal adviser, Chief Olusola Oke, yesterday, pleaded the Supreme Court to dismiss the appeal in its entirety.
It argued that an action performed by the governors before their elections were annulled, cannot be used as a yardstick in determining their tenure, saying it is the Oath of office that matters.
'Under section 185(1) of the constitution (un-amended) Oath is a condition precedent to becoming a governor. The Oath must be predicated on an election thus if therefore the election is declared a nullity, the Oath collapses.
'It is our submission that it is only the Oath that was taken after a valid election is recognized in the eye of the law as something cannot be biult on nothing', Oke argued.
Counsel to CPC candidate
Meantime, counsel to the candidate of the Congress for Progressive Change, CPC, in Adamawa state equally urged the court to sack the governors.
His counsel, Chief Wole Olanipekun, SAN, said the Supreme Court in the case of Labour Party V INEC [2009] made it clear that there was no difference between primary election or a re-run election as all of them as same.
He proceeded to argue that the issue of a second oath of office was subsidiary, not relevant and of no moment.
On the amended constitution, Olanikpekun said the constitution was to cure a mischief which is not prompted by the constitution but by politicians in the interpretation of the constitution
After listening to the arguments, the panel adjourned the matter for judgment, saying it will communicate the date to all the parties.
The decision of the Supreme Court to defer judgment was equally raising apprehension in Bayelsa State where the incumbent Governor was denied the opportunity of seeking re-election on the platform of the PDP.
One associate of the Governor confessed yesterday that the court decision has put the contending parties in Bayelsa in a stalemate.
'For us (supporters of Sylva) if the Supreme Court terminates the tenure it would mean that Sylva automatically returns as the candidate of the PDP as the party would now be compelled to abide by the decision of the January primary which returned Sylva. So that is why I say it is a stalemate for the parties in Bayelsa.'
In the same vein, such a decision could also be welcomed among section of the PDP in Kogi State especially among supporters of Alhaji Jibril Isah (Echochoe) who was first nominated by the party as its gubernatorial candidate in January before the court decision extending the tenure of the five Governors.