A GOVERNOR CAN ONLY LEAVE OFFICE WHEN A SUCCESSOR EMERGES - KANU AGABI, [SAN]
Agabi & Adoke
Last Friday, the Supreme Court in an unanimous decision read by Justice Walter Onoghen, brought the tenure of governors of Bayelsa, Sokoto, Kogi, Cross Rivers and Adamawa States, to an unceremonious end. The apex court ruled that it was unconstitutional and illegal for their stay in office to exceed the constitutional period of four years, irrespective of fresh elections.
Following the judgment, the Attorney General of the Federation and Minister of Justice, Mohammed Adoke issued a statement directing Speakers in the five states to take over and preside in acting capacity.
While applauding the judgment of the Supreme Court, former Attorney General of the Federation, Chief Kanu Agabi, (SAN) however faulted the arrangement which allows the Speakers to preside as governors, albeit in acting capacity in the affected states.
Agabi submitted that the Speakers in the affected states could not act as governors, as the 1999 constitution only give them powers to do so, only when elections are annulled, or invalidated.
He spoke with newsmen in Abuja, same day the apex court delivered its judgment.
This morning the Supreme Court sent packing five governors from Kogi, Adamawa, Cross River, Sokoto and Bayelsa states, what do you make of that sir?
The issue before the court was as to when the governors tenure commenced, whether it is after an election, which has been annulled, whether it is after he won a re-run election, or to put it safely, the governor has served and his election is annulled, does his tenure run from the first election, which was annulled?
The Supreme Court has decided that once a governor is elected and has been sworn in, his tenure runs from that day that was the decision that was made today. The implication of that is that those governors who had earlier held office, who were re-elected after their elections were annulled, their tenures have expired that was in effect what the Supreme Court said, so, you are right to say that maybe they were sent packing by that judgment.
The judgment merely says that look, their terms have ended, but having ended they cannot just leave the office, because the Constitution provides that they can leave office only when a successor emerges, the governor cannot just leave office except in the case of invalid election, once an election is invalid and the governor's election has been invalidated he must leave immediately, but in the case such as this, when they were validly elected governors and were serving, the declaration that their terms have ended simply means they will leave when somebody emerges to take their place.
Is this not controversial if you say they are going to be in office, it means that their tenures will keep on running?
No, it is not their tenure, Section 180 subsection (1) of the Constitution says, subject to the provision of this Constitution, a person shall hold the office of a governor of a state until when a successor in office takes the oath of that office. He holds that office until his successor takes over the office.
But the AGF has directed that Speakers of Houses of Assemblies in the affected states should take over?
No such declaration has been made; the Speaker of a state is not the successor of the governor under the Constitution except when the election is invalidated or something like that. As a consequence of the judgment the terms of office of those governors has expired, but they cannot just leave the office, because the Constitution says when their term of office has expired you hold on to that office until somebody succeeds you. It is not a matter of what make sense or what does not make sense, it's what the Constitution provides, if the Constitution says that he remains in the office until somebody succeeds him whether in 30 minutes or a year time he is out, but if nobody succeeds him for another one year he has to remain there, because you can't leave the state without a successor.
One other implication of this judgment is this sir, will it be right to say, as some people are insinuating that the primaries of the various political parties that were held ab initio, stand?
Why not, the primaries stand. If primaries had been held those primaries stand, it has nothing to do with the term, it is something for the political party. It is left to the party to conduct its primary when it is convenient for it in accordance with its own Constitution. If primaries have been held, which accord with the Constitution of the party, those primaries have nothing to do with the judgment that has been pronounced.
Let's take the issue of Bayelsa state where you have the serving governors having discontent with the primaries that were held, as a matter of fact Governor Sylva is in court laying claim that he is the rightful candidate of the PDP based on the previous primary that was conducted. In Kogi state, Echocho is laying claim to the party (PDP) ticket based on the primary that was held abinitio. Now, will it be right from your own view and judgment to say these are the rightful candidates of the political party based on the fact that the Supreme Court invalidated the action that took place and that has kept the governors in the office?
The short answer to that is that they are in court, these matters have not been decided, they are in court, I cannot comment on it.
Election had been conducted in Kogi state and the Supreme Court ruling said the governor was supposed to have vacated the office last year May, what is the implication of this?
In Kogi state there will be somebody who will take over, a governor has been elected from a valid election conducted by INEC and so, that governor can be sworn-in in five minutes or in the next ten minutes.
That is what Section 180 of the Constitution is saying that a government must have a successor.
From a lay man's angle, if you are saying Idris Wada takes over immediately…. and the Supreme Court ruled that Ibrahim Idris ought to have vacated since last year and there was a political primary that was held as at that time and Echocho emerged as the rightful candidate, but because the Court of Appeal ruled that these governors tenures continued it created room for these people to be disenfranchised and allowed Idris Wada to come in as the new candidate of the political party.
Will it be right to say that based on the Supreme Court judgment that Isa Echocho was supposed to really be the candidate and not this one (Wada) that you are now asking to take over?
No, you see, the law is what the judges say it is, so, when the judges pronounced in May last year whatever they pronounced, that was the law. It remains that law until the Supreme Court pronounced otherwise.
The law is what the judges say it is at any material time, so whatever judgment were subsisting the judgment of the Court of Appeal was the subsisting judgment up till today, after this morning (judgment of the Supreme Court) it was no longer valid judgment, up till yesterday (before the judgment) it was enforceable, up till last month it was enforceable, the law is what the judges say it is, until those judgments are set aside.
But there is confusion: how would you explain to Nigerians that the pronouncement of the Supreme Court was right, because the Court of Appeal had earlier said their tenures should continue and now this?
There is nothing to explain, it is not complicated, we have hierarchy of courts, cases go from one court to another, if you are not satisfied, you keep going until you reach the ultimate court, the ultimate court is the Supreme Court, that is the final court, once it makes its pronouncement it is final, it is supreme, it is binding.