Tenure elongation: Judgement Day for five governors

Font size: ISE-OLUWA IGE 27/01/2012 02:31:00

The Supreme Court will today decide the fate of five governors over their tenure in office in the appeal brought before the apex court by the Independent National Electoral Commission (INEC), writes ISE-OLUWA IGE Barring any last minute changes, a full panel of the Supreme Court headed by the Chief Justice of Nigeria (CJN), Justice Dahiru Musdaspher will, this morning, decide whether or not five serving Governors of Kogi, Sokoto, Cross River, Bayelsa and Adamawa states should continue in office. The apex court is scheduled to pronounce on the real intendment of the provisions of section 180(2) of the 1999 Constitution as it affects their tenure of office. The seven justices who had taken arguments from opposing parties in the case and listened to opinions of three amicus curiaes are to pronounce with finality on whether or not the four year tenure provided for by the Constitution for each of the governors is to be calculated from the first day each of them took their oath of office on May 29, 2007 or from the

date they took their second oath of office after winning the rerun elections conducted in their respective states. The much-awaited verdict of the apex court is already generating tension in the camps of the affected governors even as serving Speakers of the House of Assembly in the respective states are warming up to take over the mantle of leadership in the states should the verdict go against them. Secret political meetings, it was learnt, are already going on in the affected states between the sitting governors and their speakers and within the camps of both. It is so because the 1999 Constitution is clear on who takes over in the event a state governor vacates his office either by resignation, impeachment, death or any other reason. The verdict, if it goes against the serving governors, will definitely further alter the political calculation in the affected states, particularly the ongoing preparation for fresh gubernatorial polls in the states. For instance, in Bayelsa State, the camp of the serving governor, Timipre Sylva, is already arguing that if the ruling of the Supreme Court kicks the governor out, the results of the gubernatorial primary poll held before the April 2011 election would be automatically activated. The said primary poll okayed Sylva as the standard bearer of the ruling PDP for the gubernatorial election in the state. A reliable source close to Sylva camp told National Mirror that the verdict might compel institution of a fresh lawsuit if the Independent National Electoral Commission (INEC) is unwilling to be guided by the results. The political climate in other four states will also be fundamentally altered except the court rules in favour of the governors today Besides, both the trial high court judge and the justices of the Court of Appeal who earlier gave concurrent judgements in the case are also on trial. They would either breathe air of respite if their position is sustained by the apex court or brood over their judicial harakiri if their position is reversed. How the controversy started It will be recalled that while INEC was preparing for the 2011 general election, it had indicated its readiness to conduct election in the five states whose governors are presently before the Supreme Court. The decision became contentious and led to court actions. Governor Ibrahim Idris of Kogi State was the first to instruct his counsel, Chief Lateef Fagbemi (SAN) to sue INEC shortly after his state was listed among the states where election was slated to hold. Following his action, the other four governors joined the fray, arguing that they still had one more year before the expiration of their tenure even though they were all first sworn in on May 29, 2007. Their argument was that their elections were separately annulled by competent courts almost one year after they were sworn in. They further argued that since their elections were annulled, they said the oaths of office and the oaths of allegiance which they took were also cancelled by the court orders. They consequently held that their tenure of office could only be calculated from the date they took their second and valid oath of office and not from May 29, 2007 when they took their first oaths. They regurgitated the arguments before the Abuja Federal High Court where they had gone to stop INEC from cutting down their tenure by about 12 months. After legal arguments, the trial Federal High Court judge sitting in Abuja, Justice Adamu Bello stopped INEC from going ahead with its plans to conduct gubernatorial election in the affected five states. The court held that their tenure of office would not expire on May 29, 2011 as argued by INEC. The court specifically said that Governor Idris of Kogi would remain in office till April 5; Governor Aliyu Wammako of Sokoto would remain in office till May 28 and Governor Murtala Nyako of Adamawa would remain in office till April 30.

Justice Bello also said that Governor Liyel Imoke of Cross River would remain in office till May 29, 2012 and Governor Sylva of Bayelsa would remain in office till May 29, 2012. The judge said he arrived at the dates given the dates they took their second and valid oaths of office and in tandem with the clear provisions of section 178 (2) and 180 (2) of the 1999 Constitution. Justice Adamu who used Black Law Dictionary and the Contemporary Dictionary of English Language to explain what the word nullification meant ordinarily and in law, said that when an election was nullified, he said that in the face of the law, such election never held including everything done on the basis of the nullified election. The nullification of election also nullifies the oath of office and the oath of allegiance taken by the affected governors whose elections were voided. This is because from nothing, nothing comes, Justice Bello held. The court consequently held that since the April 2007 elections in the five affected states were nullified and set aside by competent courts, the oaths of office and allegiance subscribed to by the five governors had also been nullified and set aside along with the elections. Justice Bello held that if the oaths of office and allegiance taken by the respective governors on May 29, 2007 had become void and that there was no way their tenure of office could run from the same May 29, 2007. In fact, the judge said that section 180 (2) of the 1999 Constitution sought to be interpreted made the oath of office and the oath of allegiance the reference point for calculations of their tenure of office. He said that the tenure of office of each of the governors that came to court could only be determined by the date they took their fresh oaths of office after they were returned into office vide fresh elections. He said that although, section 180 of the 1999 Constitution was amended in 2010 by the National Assembly and signed into law by the President in July 2010, the amendment had no effect on the five governors since their rerun elections were conducted in 2008 before the new constitution was signed into law. Justice Bello said that there was nowhere in the world where a constitution takes retroactive effect as erroneously held by the INEC, adding that the said amendment could not be used to determine the tenure of the governors who took oath of office in 2008. Consequently, the court quashed the preparations by INEC and the Peoples Democratic Party (PDP) to conduct elections in the affected states and ordered that elections would only take place in the states in four of the states in 2012; Kogi held its governorship election on December 3, 2011. Aftermath of the judgment Although INEC was dissatisfied with the verdict, it did not quickly appeal. But Brig.-Gen. Buba Marwa (rtd), who was seeking to contest for governorship election in Adamawa State was not comfortable. He briefed his lawyer, Chief Wole Olanipekun (SAN), who filed an application at the Court of Appeal, Abuja for joinder. He lost his bid to join but the Supreme Court allowed him. The apex court specifically held that Marwa had sufficient interest to be made a party to the case. Prince Abubakar Audu, the Action Congress of Nigeria (ACN) governorship candidate in the December 3, 2011 election, also filed an appeal too at the Court of Appeal to challenge the verdict of the trial court. But after arguments at the Court of Appeal, the verdict of the high court was affirmed. What the Court of Appeal said The appellate court maintained that the judgement of the trial court was unassailable, adding that the legal grounds adduced by the electoral body on why the five governors should be sacked from office on May 29, 2011 was practically meaningless in the face of section 180 (2) of the 1999 Constitution. The

duty of the court is to interpret the law as it is, that which is not explicitly intended by the lawmakers, should be accordingly excluded by the judiciary. It is also settled law that the provision of the constitution should be interpreted literally in the absence of ambiguity. The provision of section 180 (2) is simple and crystal clear; it says that a governor shall leave or vacate office at the expiration of a fouryear term starting from when such a person swore to an oath of office and oath of allegiance. This clear and unambiguous provision should be given its ordinary grammatical meaning. The submissions made by the appellant revolved around the issue of an oath of office administered to a person firstly elected as a governor. Tenure commences from the day a validly elected person takes a valid oath of office. The constitution operates prospectively and not retrospectively. This appeal is left wanting in merit as it fails on all grounds and parties are to bear their own costs, the court held. Supreme Court to the rescue In the appeal filed by Dr. Onyechi Ikpeazu (SAN) on behalf of INEC, the commission argued that the justices of the Appeal Court were wrong when they held that the time already spent in office by the governors should not be contemplated when computing the period of four years which the governors were entitled to. In the commissions view, the judgement was given in disregard to section 180 (2) of the 1999 Constitution of the Federal Republic of Nigeria which stipulated that a governor should vacate office at the expiration of four years. The commission also stated that the Court of Appeal failed to determine the validity of the initial oath of office taken by the governors. It claimed that the nullification of the election after the initial oath did not have the effect of nullifying the oath of office previously taken by them. INEC also faulted the Appeal Courts justices reliance on the case of Peter Obi vs. INEC (2007)11 NWLR Part 1046, saying that the case did not involve a governor who was re-elected after his initial return was set aside. In the brief filed by Olanipekun on behalf of Marwa, he is contending that both the Federal High Court and the Court of Appeal in Abuja were wrong when they held that the affected governors were entitled to stay beyond May 29, 2011. Olanipekun said within the ambit of section 180 (2) of the Constitution, the spirit and intention is that except the nation is at war, no elected governor shall spend more than eight years in office with a period of four years per tenure. Besides, he said the second oath taken by the governor after a fresh election is subsidiary and not relevant, stating that such is of no effect. He said the judgement of the lower court was predicated on Oath of Office, adding that oath taken is irrelevant. He consequently prayed the court to resolve the appeal in favour of the appellant. Supreme Court appointed 3 amicus curiae When the appeal was mature for hearing at the Supreme Court, the CJN presiding over the case consolidated all. The court also appointed three respected Senior Advocates of Nigeria (SANs) to appear in the matter under the legal principle of amicus curiae (friends of the court), to offer it legal advice on the best approach it should adopt in disposing off the matter without igniting constitutional crisis in the country. Those asked to appear were Prof. Itse Sagay, former Attorney General of the Federation and Minister of Justice, Chief Richard Akinjide and Chief G.O.K Ajayi. GOK Ajayi Presenting the briefs containing their advice to the apex court on the matter, two amicus curiaes, Sagay 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, Prof. Attahiru Jega who listed the five states for election in April this year (2011) was not the INEC chairman in 2007 when their respective elections were annulled, he added. Ajayi urged the Court to hold that by the combined position of Sections 180(1) and 182 (1b), a person can hold the office of governor for only four years per term and that a governor has maximum period of eight years. He posited that the nullification of the 4th Respondent and other beneficiaries of the decision of the lower court did not perforce result in the nullity of the oath of allegiance and oath of office taken by them as governors of other respective states. The relevant period of the computation of the tenure of the 4th Respondent is May 29, 2007 when he took the first oath of allegiance and oath of office and not the second oath of allegiance and oath of office in 2008. In the premises, this honourable court is urged to resolve this appeal against the 4th Respondent and vacate the decision of the lower court. Itse Sagay In his submission, Prof. Sagay described the respondents as defacto 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. I agree entirely with the Appellants counsel when he states at paragraph 5-50 of his brief that a court will not lend its aid to an immoral or illegal act, and that a party will not be allowed to benefit from its own wrong doing. It is against public policy for a governor to scheme and contrive to stay in office indefinitely. If this appeal fails, that exactly will be the state of the law. It is my humble view that the appeal should succeed. Section 180(2) of the Constitution does not envisage a situation in which a person can physically occupy the position of governor for more than four years in a single tenure. An election is only nullified effectively with effect from the date of judicial pronouncement. The decision of a court in an annulled election is constitutive of that nullity, and therefore cannot have a retrospective effect on the tenure and actions taken by the governor before the nullification order. The court will not lend its aid to an immoral or illegal act neither will it allow a person to benefit from his own wrong or a wrong in his favour. Opening the constitutional gate to an indefinite tenure in office by governors is not only contrary to the provisions of the Constitution and public policy, but will lead to gross abuse in the Nigerian type of society. Richard Akinjide The former Minister of Justice 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. Akinjide 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 rerun election as ordered by the Court of Appeal. Subsection 2A of Section

180 of the Constitution (as amended) is totally inapplicable to this case. Subsection 2A of Section 180 of the Constitution (as amended) has no retrospective application and is only applicable to the tenure of offices in respect of elections conducted post-July 16, 2010. I commend with respect, my views and submissions in this my amicus curiae brief and I urge this Honourable Court to determine this appeal accordingly. The PDP through its national legal adviser, Chief Olusola Oke, 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. Counsel representing other state governors also argued in favour of not disturbing their tenures. After listening to the arguments, the panel fixed today for judgement