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Technicalities Nigeria unlimited

By Josef Omorotionmwan
TODAY’S s essay is dedicated to Justice Oyemade of the High Court of Justice of the old Western Region and other people of courage who may be few and far apart, but who still steer the affairs of our Judiciary.

As far back as 1964, Justice Oyemade stood firmly and spoke convincingly of how he dealt with some political guinea pigs who attempted to intimidate him into the miscarriage of justice: “I will not allow myself to be intimidated into sending innocent persons to jail. Even if this leads to losing my job, I am still sure of leading a decent life. The only thing we have now in this country is the Judiciary.

We have seen politicians changing from one policy to another and from one party to another but the only protection the ordinary people have against these inconsistencies is a fearless and upright Judiciary. It gives form and substance to the spirit of liberty and man’s yearnings for justice. The day the people lose confidence in the judiciary, there would be anarchy. We should therefore learn to say: Let there be justice though the heavens fall”.

If in 47 years the heavens have not fallen, perhaps they never will. Sadly, our judiciary still harbours a lot of people whose stock in trade is walking justice on its head. In the area of interpretation, such people might be wont to adopt the path of least resistance by mechanically accepting words on their surface value without sometimes searching the books.

In difficult areas of constitutional interpretation, it is not unusual to introspect into what the framers of the Constitution had in mind at the time of inserting particular clauses into the Constitution. We have laboured through the pages of the proceedings of our various Constituent Assemblies and no where do we find the framers of our Constitutions demonstrating any preference for technicalities over man’s yearnings for substantial justice.

Over the years, we have taken special interest in Section 180 (2) of the 1999 Constitution, which provides for a four-year tenure for a Governor “… from the date when he took the Oath of Allegiance and Oath of Office”. At no time did the framers of the Constitution intend that the clause should be used to smuggle tenure elongation into our polity. A perfunctory interpretation of the above provision is capable of perpetuating a governor in office for as long as he wants.

For a quick illustration, we suddenly find ourselves in Nigeria’s 37th state, Isi. After three and a half years in office, Dr. Oduware of the DPD went in for a re-run and won. At that point, “fresh Oaths of Allegiance and Office” were administered on him. Now, Prince Idabie of the PDD heads back to the court to challenge the transgressions that took place during the re-run. After another three and a half years of legal battle, another re-run is ordered. Oduware wins again.

After seven years in office as Governor of Isi State, Oduware must start another four-year tenure “from the date of taking the Oath of Allegiance and Oath of Office”. Is the argument not sufficiently “idiotic”, to borrow the elegant phraseology of Chief Ojo Maduekwe?

It is immaterial that the National Assembly has now amended Section 180 (2) of the 1999 Constitution, to place a ceiling of four years on the governors’ tenure. The pre-amendment argument is self-sustaining. In just the same way that the five affected governors – Sylva, Idris, Nyako, Imoke and Wamakko – cannot elongate their tenures through the back door, it will also be unjust to attempt to short-change them in any way.

Their elections cannot be in April but around July 2011, so as to atone for the three months they spent out of office between annulment and the re-runs. For every debit, there is a corresponding credit.

This is a sound accounting principle that cannot be faulted. Justice Adamu Bello was most unequivocal when he asserted: “The legal implication is that the nullification of the 2007 election in these respective States equally means that the previous Oath of Office and Oath of Allegiance previously administered to them was also nullified. From nothing, nothing comes and you cannot put something on nothing and expect it to stand; it will collapse” (Vanguard, Thursday, February 24, 2011, p. 5).

No matter how fast a man runs, he cannot run away from himself. Yes, the legal implications of the annulment have been properly enunciated. But that is still one side of the account. If we say that the entire period before the re-run has been nullified, that presupposes that all the actions taken by the affected governors before the annulment also stand nullified.

If the law assumes that they were legally not in office during the period, what of all the bills they signed into law; all the contracts they awarded; the appointments they made; the salaries they paid and received; foreign travels; the goodwill they enjoyed; all the fine girls; the budgets they executed; all that stay in Government House without paying any rent and so on and so forth? Come on Judge, by your mechanical interpretation, is it not also very clear that all these actions were standing on nothing and that they have therefore long collapsed?

If we must survive, not only must justice be done, it must be seen to have been done. You must keep your technicalities and give us our substantial justice. There is no other way of avoiding a resort to self help, which, going by the lessons of history, is not a tea party!

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