Arguably, the most topical legal puzzle in Nigeria today, as we move towards the April 2011 Elections is the question of when the tenure of Governors Aliyu Wa-makko (Sokoto), Muritala Nyako (Adamawa), Liyel Imoke (Cross Rivers), Timipre Sylya (Bayelsa), and now Emmanuel Uduaghan ( Delta) will end. On February 23, 2011 an Abuja Division of the Federal High Court, presided over by Hon. Justice Adamu Bello had held that the tenure of the governors would extend beyond May, 29, 2011, and that no gubernatorial election should be conducted in the five States in April, 2011 until 2012.
Arguably, the most topical legal puzzle in Nigeria today, as we move towards the April 2011 Elections is the question of when the tenure of Governors Aliyu Wa-makko (Sokoto), Muritala Nyako (Adamawa), Liyel Imoke (Cross Rivers), Timipre Sylya (Bayelsa), and now Emmanuel Uduaghan ( Delta) will end. On February 23, 2011 an Abuja Division of the Federal High Court, presided over by Hon. Justice Adamu Bello had held that the tenure of the governors would extend beyond May, 29, 2011, and that no gubernatorial election should be conducted in the five States in April, 2011 until 2012.
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Justice Bello held that the tenures of Governors Idris, Wammakko, Nyako, Sylva and Imoke would end on April 5th, May 28th, April 30th, May 29th, and August 28th 2012, respectively, four years after the dates they were re-sworn in as governors, after the re-run elections which they won, following the nullifications of the gubernatorial elections which they first won .
May we state, in passing, that Governor Amaechi, could have joined the legal tango by insisting on the “completion” of his four year tenure before another gubernatorial election is held in his State. He chose not to. Amaechi was sworn in as Governor of Rivers State following the removal of his predecessor, Celestine Omeiha, from office by the Supreme Court, which declared Amaechi’s substitution by his party, in favour of Celestine Omeiha, as its gubernatorial candidate, as an unlawful, and then deemed him to be the winner of the April 2007 Rivers State Gubernatorial Election, an election in which, in fact, he did not participate. Celestine Omeiha actually ran as the party’s candidate in the election, “won” and was “sworn in”.
But why is Amaechi participating in the April 16th 2011 Gubernatorial Election, in spite of the fact that by May, 29th, 2011, he would not have spent four years in office? Is it that he honestly believes that one implication of the Supreme Court’s judgment is that he is using the remainder of his predecessor’s tenure, given the decision of the Supreme Court that he was the one deemed to have been elected in the April, Rivers State Gubernatorial Election; or does he believe that he has performed well in Government and that there is “no evil day” that he needs to abuse the judicial process to postpone, as his record of performance will stand him in good stead in the April Gubernatorial Election; or has he calculated that his chances of re-election are brighter in a general election atmosphere, with its attendant pandemonium, when his state will not be the only state where election is being held, with the consequence of concentration of resources, attention and focus by INEC, contending political parties, security agencies, the media, the nation, the international community and even the militants in the Niger Delta region ?. Whatever be the case, Amaechi is not in Court for a “complete” four-year tenure.
It is the contention of those who argue that the tenure of these Governors will end four years after they were (re)sworn into office upon winning the respective re-run elections in their states, that the term of office of a re-elected state governor, who won a re-run election ordered by the court, after the nullification of the first election, commenced when the governor too a fresh and second oath of office, following his victory in the re-run election and his being issued a new certificate of return by INEC. Accordingly, his term of office shall come to an end exactly four years, after he was sworn into office.
In the case of Obi v INEC, reported in 2007 11 N.W.L.R (Part 1046) at page 565, the Supreme Court interpreted the provision of Section 180 (1&2) of the Constitution of the Federal Republic of Nigeria, 1999 which governs the tenure of office of governor of a state. The Court stated emphatically that the tenure of office of Governor Peter Obi, who took the oath of office on 17th of March, 2006, as Governor of Anambra State, upon the nullification of the election of Dr. Chris Ngige to the said office, conclusively by the Election Petition Appeal Tribunal, would come to an end four years after Governor Peter Obi took the oath of office. The case arose, and was litigated up to the Supreme Court, when INEC, in 2007, declared that the tenure of Governor Peter Obi would end on 28th April 2007 and that the office would become vacant for the purpose of conducting election into same. INEC’s contention was that Governor Obi would merely complete the “indivisible” tenure of office, which his “predecessor” Dr. Chris Ngige started enjoying on May 29, 2003, when he took the oath of office. This position was flatly rejected by the Supreme Court, when it stated in the leading Judgment of Aderemi, J.S.C. at page 644, para.C-E that: The arguments of the respondents here is very tenuous. When verdict of the Court of Appeal (Enugu Division) declaring the present Appellant as the rightful person to have been declared having won the gubernatorial election in April 2003, was handed down, the effect is that the return of Dr. Ngige as the person who won the election was null and void and of no legal consequence. So Ngige’s oath taking at the time cannot be a point of reference in calculating the four year term of the Appellant. Ngige was and cannot be a person first elected as Governor under the Constitution, his election having been declared null and void”
In Ladoja v. I.N.E.C, 2007, 12 N.W.LR, Part 1047, 119, Governor Rasheed Ladoja, whose impeachment by the Oyo State House of Assembly was declared null and void, both by the Court of Appeal and the Supreme Court, was kept out of office for eleven months. He, therefore, sought the court’s declarative reliefs, amongst others, to the effect that the period of his absence from office be deducted from his four-year tenure, and that as such his tenure of office should extend beyond May, 29, 2007. The Supreme Court refused the prayers. In refusing the prayers, the Supreme Court held that “Neither the Supreme Court nor any other court has power to extend the period of four years prescribed for a governor of a state beyond the terminal date calculated from the date he took the oath of office. In this case, the appellant whose tenure of office commenced on 29th of May, 2003 when he took his oath of allegiance and oath of office to serve his first term of four years in the office as Governor of Oyo State could not show anything on record by which the fixed period of four years under Section 180(2)(a) of the 1999 Constitution could be extended beyond 29th May, 2007 ( emphasis ours)
To these Governors and their “cheer-lawyers”, the decision of the Supreme Court in Ladoja v. INEC (supra) is not applicable to their case. Governor Ladoja sought the extension of his tenure to accommodate the eleven months he lost when he was unconstitutionally and illegally impeached from office. After his impeachment, his deputy, who was elected with him as his running mate on the same party ticket, occupied his position. He was impeached and removed from office. His election as a Governor was not annulled. In any case, when he returned to office, he did not take the oath of office and oath of allegiance afresh. He merely continued from where he stopped. More importantly, in the Ladoja’s case, there was no dispute as to when his tenure commenced. It was May 29, 2003. The only controversy was as to when his tenure ought to end
In the instant situation, however, the Governors were ordered to vacate office, and elections were ordered to be conducted within three months thereof. The Governors did not hand over to their Deputy Governors, with whom they were sacked from power. The Speakers of the Houses of Assembly of the States functioned as Acting Governors, and they also took the oath of office and oath of allegiance in that regard. Thus, there was a complete break. In these circumstances, the Governors and their cheer-lawyers argue, a court of law that is called upon to declare that the tenures of the Governors still subsist beyond May 29, 2011 is not being asked to extend or elongate the tenure of the Governor. Unlike in the Ladoja’s case, in the instant case, both when the tenures of the Governors started and when they would end, are in issue.
By administratively deciding that the tenure of the Governor would end on May 29 2011, INEC is accused of acting whimsically, arbitrarily, unlawfully and unconstitutionally. INEC ought not to have so acted. If INEC had any doubt as to the line of action it should take, in the circumstances, it ought to have approached the Court to seek interpretation of Section 180 (1&2) of the1999 Constitution (before amendment) as it related to the tenure of the Governors. INEC ought not to have assumed that since the Court did not extend the tenure of Governor Ladoja in his own case, the court was unlikely to hold that the tenure of the Governors started to run from when they took their respective oath of office and allegiance in 2008, after the re-run elections. What INEC did by deciding that the tenures of the Governors would end on May 29 2011 was to act as a court. INEC was determining the civil right and obligation of the Governors. INEC is wrong in acting as an executive cum administrative calculator, arithmetician or mathematician in deciding that the tenure of the Governors started on May 29, 2007, when they were first sworn in; and adding the three months that the Governors were not in office to their respective tenures. If INEC believed that the Governors respectively had one, indivisible tenure, from May 29 2007, why did INEC conduct a new, rerun or fresh election, and when the Governors won the elections, why did INEC issue them new certificates of return, pursuant to which the Governors took fresh oaths of office and allegiance? Why is INEC lumping together the old tenures with the new?
The argument here must be understood. It is not being contended that three months (90 days) be added to the tenures of the Governors, in compensation for the three months when the Speakers acted as Governors. The Court cannot be asked to add three months to the tenure. Doing so will be tantamount to asking it to do what the Supreme Court refused to do in the Ladoja’s case: Tenure elongation.
Section 180 (1, 2 and 3) has been amended. In the new amendment to the Constitution, assented to on January 10, 2011, the tenure of a governor, such as these Governors, will now be calculated from when such a governor was first sworn into office, regardless of the annulment of his election by the court. However the new amendment is not applicable to the cases of these Governors. It is settled law that the applicable law and constitution for the determination of any question as to when the tenures of the Governors started and when the tenures would end are the 2006 Electoral Act and the 1999 Constitution ( before amendment). These were the laws in operation when the cause of action started accruing. The Governors were elected under the 1999 Constitution, not under the new amendments. The law applicable to a cause of action is the law in existence at the time the cause of action arose, and not the law in force at the time the jurisdiction of the court is invoked. See the decision of the Supreme Court in Adesanoye v. Adewole, 2006 14 N.W.L.R (Part 1000), page 242 at page 267 para, D-F; Mustapha v Gov of Lagos State1987 2 NWLR (Pt.58), 539;and Uwaifo v. A.G, Bendel State(1982)7SC, 124. In any case, a retroactive legislation is not allowed under our legal system, except retroactivity is specifically and specially intended.
While INEC may argue that applying the ratio of Obi v. INEC’s case to the provision of Section 180 of 1999 Constitution ( before amendment) in relation to cases of these Governors could lead to an undesired and undesirable situation whereby the Governors would spend more that four years in office, it is submitted that this line of argument is flawed. The Constitution, though must be read together as a whole, must be taken as it is. It must be interpreted and administered as it is. Subjective notions and ideas, no matter how altruistic, cannot be imported into it. In Obi v. INEC ( supra) Aderemi, J.S.C stated that: “I hold the strong view that law making, in the strict sense of that term, is not the function of the judiciary but that of the legislature. Let there be no incursion by one of the government into that of the other. That will be an invidious trespass. Let me point out that no Constitution fashioned out by the people, through their elected representatives, for themselves, is ever perfect in the sense that it provides a clear–cut and/or permanent or everlasting solution to all societal problems that may rear their heads from time to time. As society grows or develops, so also must the Constitution, written or unwritten.. Our problems as judges should not and must not be to consider what social or political problems of today require; that is to confuse the task of a judge with the task of a legislator. More often than not, the law, as passed by the legislators, may have produced result or results which do not accord with the wishes of the people or do not meet the requirement of today. Let that defective law be put right by new legislations, but we must not expect the judex, in addition to all his other problems, to decide what the law ought to be. In my humble opinion, the judex is far better employed if he puts himself to the much simpler task of deciding what the law is ( page 645, paras A-E )”
As well-laid out as the above argument in support of the Governors’ position is, it is our humble but strong view that it is totally misleading and misconceived. Admittedly, the 1999 Constitution did not specifically provide for the situation of these Governors, who won rerun governorship elections after the nullifications of their elections. There was a gap or lacunae in Section 180 of the Constitution. This gap, which is now being exploited by the Governors, has now been filled in the new amendments to the Constitution, Section 180(2)(c), which provides that where an incumbent governor wins a re-run election, the time spent in the office, before the re-run election shall be taken into account in determining his tenure.
There are many grounds in support of the argument that these Governors cannot start fresh tenures upon being re-elected as governors, after the annulment of their elections, by the order of the court; and that they cannot legitimately claim and be legally given “brand new” four year tenures under Section 180 of the 1999 Constitution, before amendment.
Before we deal with these grounds, we must quickly dismiss certain sentimental views which are being expressed on this matter. Law and sentiments do not relate well. A number of commentators have argued that it would amount to rewarding these governors for the wrong of electoral malpractice, to “extend” or “elongate” their tenures beyond four years. It is being advocated that governors that fall into this category, ought to be barred from occupying public offices, if in the judgments annulling their elections, they are found to have engaged in, and benefited from electoral malpractice or fraud, resulting in their being declared the winners of the governorship elections. This viewpoint is not well thought out, for it does not address the category of governors whose elections were annulled because the candidates of the other political parties, who, lawfully, were nominated to contest in the elections, were unlawfully disqualified or wrongfully excluded by INEC, a “third” party. This is a distinct ground for invalidating an election, a ground which is not related to fraud or electoral malpractice attributable to the winning candidate cum governor. Besides, as ideal as inflicting the punishment of excluding an erring governor, a beneficiary of electoral fraud or malpractice, from further participation in the electoral process, is, there is no such law in Nigeria today. There are also those who have argued that it is immoral for the governors to be allowed to spend more than four years in office. The short response to this view is that in this matter, it is what the law says or is deemed to say that will hold, not what public morality expects.
We now deal with the grounds in support of our argument that these Governors cannot start fresh tenures of four years, upon being re-elected, and taking fresh oaths of office.
Our first ground is that the facts of the Peter Obi’s case, the principles of which were relied upon to grant the Governors fresh tenures from the times they were sworn into offices, after their second elections, are dissimilar to the facts of the cases of these Governors. Unlike these Governors, Peter Obi was not a governor and was not in office when his election was annulled. On the contrary, he was the petitioner who moved the Tribunals to annul the election of a sitting governor. For over three years, he urged the election petition and election petition appeal tribunals to declare him as the duly elected governor. He eventually succeeded, and was sworn in as governor. Few months thereafter INEC said his tenure was up. He demurred, arguing that his tenure started to run from the date he was sworn in. The Supreme Court agreed with him. Unlike Peter Obi, these Governors were declared elected and sworn in. Midway into their respective tenures, the election petition and election petition appeal tribunals, at the instance of rival candidates in the elections that brought them into offices, nullified their elections, removed them from office and ordered fresh elections within three months. They were all re-elected, and re-sworn into office. Obi’s case is, therefore, no good authority in support of the argument that the Governors are entitled to fresh tenures of four years, after their second elections.
In Fawehinmi v NBA (No.2) (1989), 2NWLR (Pt.105), 558 at 650 Oputa, J.S.C, as he then was, admonished against the misapplication of principles of judgments or application of principles of judgments, out of context, in a way that does violence to the facts of a case that is being considered by a court of law. Said the philosopher jurist “ it is good to call the Court’s attention to its pronouncements in a previous case…Decisions have drawn their inspiration and strength from the very facts, which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must either be either the same or at least similar before the decision in one case can be used, and even there, as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely form a Principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand”.
Thus dogmatism in application of the doctrine of precedent and principle of stare decisis leads to the murder of justice
The second ground is that Section 180 (1&2) of the 1999 Constitution ought not to be interpreted in isolation of the other provisions of the Constitution. The Supreme Court of Nigeria has, in a long line of cases, laid and re-laid down the principles governing the interpretation of the provisions of the Constitution. In the case of A.G, Bendel State v. AG, Federation, Obaseki, J.S.C, at Page 66 Para3-4; Page 73 Para. 9; Page 74 Para 1-8, stated that in the interpretation of the 1979 Constitution, certain principles must be borne in mind. These principles, in part, are that “ the Constitution of the Federal Republic of Nigeria is an organic scheme of government, to be dealt with as an entirety, a particular provision cannot be dissevered from the rest of the Constitution; a constitutional provision should not be construed to defeat its evident purpose; the principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used , measure the purpose and scope of its provisions; and that words of the Constitution ought not to be read with stultifying narrowness”
When the provisions governing tenures of federal and state legislators, governors of states and the President of the Federation are read together, it becomes very clear that there is no reasonable interpretation of Section 180 (1&2) of the Constitution (before amendment) on the tenure of any of these Governors that can legally and rightly permit any one of them to govern their respective states for a cummulative period of time that exceeds four (4) years, in an election cycle. A substantive gubernatorial election and a re-run, fresh, or new election are parts of one indivisible election cycle. An essential component of the rule of law is equality of all before the law. This entails equal treatment of all by the law. If the fresh tenure of four years argument is sustained, it would create an ineffaceable precedent in our political history in which some governors would spend more than four years in office, power and government, in an election cycle, while the others would spend four years in office. This could not have been the intendment of the framers of the Constitution
If the governors are not accorded fresh tenures, calculated from their second elections and the taking of oath of office, they will spend four years, less three months, in office, since, respectively, they were out of government for a period of three months during which periods the speakers of houses of assembly of their states, acted as governors. It may, therefore, be argued that in this sense, the governors would be short-changed, as they would be in offices for lesser periods of time than the constitutionally stipulated four years; and for periods lesser than the time other governors, who do not fall into their category, would spend in office. This may well be so. But we argue still that it is a lesser evil if a governor elected for four years, ended up spending lesser than four years in office, due to death, resignation, impeachment, removal from office or nullification of his election, midstream into his tenure, compared to the bigger evil of some governors spending five years or more in office, in violation of the four-year, two term limit, enshrined in the Constitution.
The third ground in support of our position is that any interpretation of Section 180 ( 1&2) in favour of granting the governors fresh tenures, after winning re-run elections, overlook the bigger right of the electorate under the Constitution to elect a governor of their choice, every four years. The right of the people to a representative government or to elect government of their choice every four years, or as may be otherwise enshrined in a basic law of a country, is not only a domestic right recognized by the Constitution but is also an internationally recognized civil and political right. This right is superior to any individual legal right a governor may possess to govern a state, pursuant to a victory in a re-run election. Justice is not a one way or a two way traffic; it is a three way traffic: Justice to the two disputants in a litigation, and justice to the society at large ( Oputa, J.SC, elsewhere) The Supreme Court, unfortunately, overlooked this right, from which the right of an elected governor to govern a state derives, in the Peter Obi’s case. Otherwise, the Court would not have held, (wrongly in our view, with due deference to the wisdom of the Supreme Court Justices), that Peter Obi should start a fresh four year tenure, upon his being declared the duly elected governor of Anambra State; for by so holding, the Supreme Court arrested, suspended, and breached the greater right of the electorate to vote and elect a governor of their choice, every four years. Our view when that Supreme Court Judgment was being celebrated ( and this view has not changed, now that the decision therein is being mischievously and greedily used as a sword) is that the problem and wrong occasioned by a protracted and elongated gubernatorial electoral dispute cannot be resolved and redressed by granting the duly elected successful challenger of an annulled mandate, who is declared as the duly elected governor, a fresh term, that does not take into account the period already used by the usurper.
The solution to the problem of illicit electoral mandate does not lie in pretending that the usurper was not in office and power, and in the legal reasoning that once the election of a usurper was declared null and void, then, there was no tenure, which could be completed by the real winner of the election. A marriage contracted under the Marriage Act may be annulled, but the consummation of such marriage cannot be erased nor can children of the marriage be regarded as non-existent or deemed less as citizens, because of the nullification of the marriage of their parents. It amounts to playing a judicial ostrich for a court of law to totally discount the period spent in government, office and power by a governor, who not only received salaries, but also performed multifarious executive functions, including appointments into the civil service and the judiciary, giving assents to bills and budgets, et cetera. In Abiola V National Electoral Commission , reported in Vol. 1 NPLR, 80 at 105-106, Para. D-B, Dolapo Akinsanya, J boldly and admirably nullified Decree No 61 of 1993, and the Interim National Government of Chief Ernest Shonekan, established thereon, but that does not erase the fact that Chief Shonekan is a past Head of State of Nigeria, by virtue of which he sits regularly on the National Council of State, under the 1999 Constitution. The chain of authorities that whatever is nullified is invalid and of no legal force can, therefore, not be used to argue or hold that the nullified “tenure” of a governor cannot be regarded as part of the governor’s tenure.
The battle against perversion of the political system of Nigeria with the active, lucre-driven, professional exertion of lawyers, who are destroying the rule of law, while pretending to be developing it, cannot be left to INEC alone, INEC will be overwhelmed. All the governorship candidates of the political parties in the affected states and their parties should dash to the Court of Appeal, and, as interested parties/interveners/appellants join the pending appeal on this issue, so that they can avail the court the robustness of their legal perspectives. The Court of Appeal should also invite Attorney-General of the Federation, the State Attorneys-General, the NBA, and eminent legal scholars as amici curiae in this all-important Appeal. The matter should be given accelerated hearing. Since it is the issue of tenure of a governor under the 1999 Constitution that is being considered, we believe the matter ought to terminate in the Court of Appeal.
A court of law is not only a forum for the enforcement of literal letters of a statute, but also a discoverer of the intendment of the law-giver or framer. A court of law is a temple of justice, a citadel of conscience, a fountain of reason and an institution of rationality and common sense. The decision of the Federal High Court, (Ado Ekiti, and later Jos) rebuffing Dr. Segun Oni’s attempt to snatch a fresh four year tenure, and the recent decision of Buba J, of the Federal High Court, Asaba, putting paid to the gluttonous quest of Governor Uduaghan to secure a fresh four year tenure, give us confidence that all is not lost.
Ogunye, is Principal Counsel, Jiti Ogunye Chambers, Lagos, Nigeria
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