Illegal Excellencies and a Constitutional Mess Ayo Turton
Nigeria is a country of unending crises because we have leaders who do not listen.
The article below was published in The Guardian of December 21, 2009. I just read of situation where Governor Murtala Nyako of Adamawa has refused to vacate office because the Supreme Court judgment has no consequential order! We also have a situation on our hands where we may have one Governor and an Acting Governor in Kogi State.
The Chief Judge of Kogi refused to swear in Captain Idris Wada (rtd) who won the election that was conducted before the incumbent tenure elongation. The President of the Customary Court of Appeal was railroad into swearing him in.
It has just been reported that the Attorney-General of the Federation has issued a directive that all Governors should hand over to their respective State Speaker of the House of Assembly.
We learnt the Speaker is headed for the High Court for swearing-in based on this directive.
What we now have is a situation of a Governor who has refused to leave n Adamawa State and Kogi state with a possibility of two sitting Governors.
Read the article, it is prophetic.
http://www.nigerianmuse.com/20091221082616zg/nigeria-watch/chaotic-constitutional-crisis-in-the-brew-by-ayo-turton/
Monday, December 21, 2009
GUARDIAN
Chaotic constitutional crisis in the brew By Ayo Turton
AS the 2011 election year approaches, intense lobbying and underground campaign works have begun in earnest.
By early next year more pronounced political activities would become noticeable across the country. However, there is an imminent constitutional crisis yet unresolved.
To avoid an Andy Uba-like Governor-in-waiting scenario and the attendant protracted litigation with some instituted legal actions looking like a scene from Icheoku, we need to know now what positions would be legally contested in 2011.
We need to re-examine what translations are being given to the decision of the Supreme Court (SC) in Obi vs INEC & Uba and how it affects other related scenarios playing out all over the country.
In the general election year of 2007, in anticipation of vacancy in Anambra State Governor's office, the Independent Electoral Commission (INEC) conducted an election to fill the Governor's office and Andy Uba was declared the winner.
Peter Obi the incumbent, was only declared by the Appeal Court in 2006 as the legitimate winner of Anambra gubernatorial elections of 2003, after a protracted legal battle that had afforded the declared usurper in the judgment, Emeka Ngige the opportunity of spending 34 months out of the constitutional 48 months in office.
Obi, approached the SC for an interpretation of Section 180 (2a) of the 1999 Constitution seeking an answer to the duration of his tenure. This section reads that a Governor shall vacate his office at the expiration of period of four years commencing from the date when “in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office…” It was decided, that a Governor's four-year term begins on the first day of being sworn in.
The court further held that there was no vacancy in the Office of the Governor as of the time an election was conducted for the office in 2007, Peter Obi's term of office expires in March 2010.
The application of this judicial precedent to a Governor being sworn in for the first time is settled.
But there is a huge problem where elections of sitting Governors were nullified but later won court ordered re-run elections. The question is whether the new oath of office is in the contemplation of Section 180 (2a), that would necessitate another four-year term as held by the SC in Peter Obi vs INEC & Andy Uba.
Similar cases are pending all over country. For example, the tenure of Governors of Adamawa, Bayelsa, Cross River , Kogi, Ekiti and Sokoto states have become contentious.
So are pending issues regarding re-run elections to State and National Assemblies all over the country. Should a candidate whose election was nullified start afresh after winning a re-run or should the term simply continue?
Naturally those Governors argued that their first oaths of office have been declared a nullity and therefore wining a re-run should afford them a new four-year term based on this judgment.
But oppositions insist that their terms of office should expire at the end of their four years counting from their first swearing in date. This matter must be judicially and expeditiously laid to rest before it becomes a chaotic issue for the electoral system in the country.
There are allegations already that a political party is actually planning to exploit the judgment to get back door tenure elongation for its candidates.
The judgment in Peter Obi vs INEC & Uba is for a good purpose and commendable. It serves the interest of substantial justice, because it restored the four-year term to the original winner.
The same can definitely not be said of the Governors whose first “elections” into office were nullified but later came to win re-run elections.
A court would nullify an election only because there were irregularities, contravention of electoral laws (criminal and /or civil) or that the procedures were not followed to the extent that the outcome of the elections would have been different.
It follows therefore that if a candidate was found culpable in contravention of the law, it would amount to allowing a violator of the law to take a benefit of the violation if allowed to start a new four-year term after winning a re-run.
Even where the candidate was not found culpable in the abnormalities that led to the nullification of the election, it would still amount to allowing the candidate to benefit from inefficiency, criminal acts and /or civil violations of another person. Such an outcome is deemed incongruous in law and equity.
There are legitimate questions of law, One: Whether the new oath by such Governors is within the contemplation of Section 180 (2a) Two: Whether every act performed by the Governor whose election was nullified is null and void, Three: Whether such person when seeking a new four-year term would be made to pay back to the public coffers the salaries and emoluments of office received while the “illegal occupation” lasted or it is money legitimately earned? It is commonsensical and compatible with sound legal reasoning that the drafters of our laws and the SC did not intend for a candidate to derive tenure elongation from criminal acts or civil law violations, as the case may be with a Governor whose election was nullified say after two years but won a rerun.
The manifested injustice of such position could be inferred from the comment of President Yar'Adua when he was on the campaign train in Ekiti State for Governor Oni where he was quoted to have said that Governor Oni would be the first Governor to spend a first term of six years in Nigeria.
That was a perceptive confession of illegality.
It is unconstitutional, if not absurd.
In a matter brought before the Supreme Court recently by the Anambra lawmakers sworn in by Ngige in June 2003, they contended that the Assembly was inaugurated by an “illegal” Governor (Emeka Ngige) whose term office was nullified, they claimed that their own term of office should also start anew with Peter Obi's tenure.
The SC held that ALL the actions of Governors whose elections were later nullified remain valid by operation of law and in the interest of the public. It further held that to nullify the acts of those officers while in office would cause chaos in the society.
The SC reasoned that since Section 183 of the Electoral Act allows a Governor whose election has been nullified at the Tribunal to continue in office until his Appeal is determined goes to show that the law recognizes acts carried out by the Governor.
It rejected the petitioners' argument that the provision of Section 183 of the Electoral Act to this effect is unconstitutional.
Why then should the oath of office taken by these governors earlier not survive the nullification if ALL other actions did, in situations where the same person regains the office, in the interest of justice and the public?
Accordingly, any argument that the earlier oath by a candidate has become extinguished by the nullification of earlier election is at variance with the SC recent decision that the actions of such candidate actually survive nullification.
A new oath for this category of people is not within the contemplation of Section 180 (2a) of the Constitution. The term “first elected” means a Governor who has never occupied the office.
A Governor who had his election nullified but presents himself for a re-run and actually wins is no longer new and has resuscitated his oath of office, since all his other prior actions survived nullification and are considered valid.
A new oath, where taken, is a mere re-affirmation of the first oath taken due to a short break in transmission.
To hold otherwise would amount to substantial injustice of benefitting a tenure elongation through abnormality and against the ratio decidendi of the latest Supreme Court decision.
• Turton practices law in the United States .