By Mohammed Amadu
Recently, in this column, I wrote ‘Zoning: Where Justice Gumi Got it Wrong’ and, in which, in my lay opinion, I differed with the FCT High Court Chief Judge’s December 1, 2010, ruling on PDP’s zoning arrangement.
Because, although he affirmed the arrangement was legal and binding on PDP, he denied the ‘issue’ was ‘justiciable’ –as in beyond the court’s power to enforce.
And, I had wondered why a judge would have the power to enquire into a matter, make a pronouncement on it and yet declare that he was constrained, legally, not to enforce it?. In fact, even as he denied zoning was ‘justiciable’, Justice Gumi affirmed that the principle was not only legally binding on PDP, it was “in the interest of equity, justice and fairness”; because it reflected “the adverse nature of the Nigerian society.”
Then on January 10, 2011, two days to the PDP primaries, Justice Ishaq Bello, in another judgment, was virtually on all fours with Gumi, except that he affirmed the justiciability of zoning, asserting that “even though the courts would not (normally) interfere in the internal affairs of a party” they would do so whenever a political party fails to comply with its constitution, the grundnum or the Electoral law.
And which had said in my piece: “there are legal rules governing the internal affairs of ‘bodies’ and the breach of which either the internal regulatory mechanisms of that ‘body’ can remedy or to a certain limit, the intervention of the courts.”
Justice Bello said that the provisions of Article 7(2) of the PDP Constitution on zoning was binding on and enforceable against PDP even as he also affirmed that zoning promotes ‘equity, fair play and justice.’ The crux of Justice Bello’s judgment was his confirmation of the ‘authority’ of the courts to enforce the rights of members where such rights, enshrined in their Constitution, are abused.
I cited the Herbotle Rule which says that “whenever there is a controversy in the internal affairs of a ‘body’ (say PDP) which is resolvable by a simple majority of members, the courts will not entertain the suit of a minority member of that ‘body’… except where the minority action brought before that court is to restrain that ‘body’ from committing (any of) the following wrongs: (1), ‘an ultra-vires act’ (as in an ‘act’ beyond that body’s legal authority); (2), ‘an ‘act’ to achieve, by a simple majority that which by the body’s rules ought to have been achieved by a special majority’; (3), ‘an act tantamount to committing a fraud on the minority and (4), ‘an act which invades or violates membership rights.”
And, I did prove that PDP neither exceeded “her authority by consensually adopting zoning”, nor abused its own electoral procedures at the time it instituted zoning, nor yet did it ‘commit any fraud on its minority’ simply by adopting a power-sharing arrangement.
And, although admittedly by adopting zoning, PDP could be said to have invaded or violated members’ constitutional right of contest, but members had ab initio, voluntarily forfeited this right when they consensually agreed to bind themselves. Because, as I said, “there are quite delicate un-navigable hyacinths of legal matters in the way of retrieving a right (whether constitutional or otherwise) which a person voluntarily forfeited either by himself or in representative capacity by a ‘body’ to which he voluntarily belongs and whose lawful ways he wilfully subscribes to.”
The legal maxim being: ‘convention vincit legem’ meaning: ‘the express agreement of the parties over-rides the law’. And, I did say even if you insists that zoning is ‘a mistake in law” because it “was conceived in the face of a superior constitutional right” yet the maxim is culpa tenet suos auctores, meaning: ‘in law even a fault binds its authors’!
It was even worse for Jonathan because “as proof of the wilful forfeiture of his constitutional right and as evidence of his unconditional endorsement of zoning, (he) even agreed to benefit from it when he accepted the party’s invitation to fill the Vice-Presidential zoning largesse on behalf of the South” -and which I said “he did consciously and without any doubts that he was drawing not from the pool of democratic merit but rather from the spring of political consensus.”
Justice Bello, in his judgment last week, said PDP was bound to observe its own rules and its constitution -of which zoning is a part of.
And, although Justice Bello dismissed the case for want of “sufficient reasonable cause of action” (since PDP had neither nominated nor submitted Jonathan’s name to INEC yet), you bet by now the judicial flood- gates would be wide open for aggrieved members.
Because as I said in my piece, “whether by strict ‘law’, which arises from fact or by strict ‘morality’ which arises from ‘truth’, zoning is no less justifiable. Nor can Jonathan (ever) contest without Sec 7 of the PDP Constitution expunged. Because again, the maxim is: ‘an obligation is dissolved ‘only’ by the same bond by which it is contracted’.
I rest my ‘lay’ case!