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Towards illegal occupancy

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By Josef Omorotionmwan
ONE  beauty of democracy is that it provides for all. While it allows the majority to have its way, it still permits the minority to have its say.

We remember John Stuart Mill (1806 – 1873): “If mankind minus one, were of one opinion and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind”.

Even where we still believe that when the judge talks, nobody walks, there are occasions when the judge may appear to walk justice on its head; and he must be pointed to order.

In the area of interpretation, some judges might be wont to adopt the path of least resistance by mechanically accepting words on their surface value without searching the books or reading the minds of the lawmakers.

Such might easily hide under the canopy that the duty of the court is to interpret the law as it is and accordingly, that which is not explicitly intended by the lawmakers should be excluded by the judiciary.

This column has also maintained that in practice, in constitutional interpretation, it is not unusual to introspect into what the framers of the Constitution had in mind at the time of inserting a particular clause into the Constitution. Of a truth, it is settled law that the provisions of the Constitution should be interpreted literally in the absence of ambiguities.

Our point of departure with some judges has been on Section 180 (2) of our 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”.

We have laboured through every reasonable source, including the volumes 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.

At no time did the framers of the Constitution intend that the clause, “… from the date when he took the Oath of Allegiance and Oath of Office” should be used to smuggle tenure elongation into our system; contrary to what we now hear from both the Federal High Court and the Court of Appeal, who have jointly and severally held that the tenures of re-run Governors must begin on the date of their second Oaths of Allegiance and Office, following victories at their re-run elections and in effect, they have ruled that the tenures of the affected Governors shall expire at various times in 2012.

Hon. Justice Adamu Bello of the Federal High Court took the initial kick-off, 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”.

The respected Honourable Justices of the Court of Appeal expressed their concurrence perhaps more elegantly, “When a thing is void, it never existed, and in the same vein, if election is void ab initio and a fresh election conducted, it appears that the first election never happened before”.

Even granting that the Hon Justices are right, we have drawn sufficient attention to the accounting principle, which holds that for every debit there must be a corresponding credit. True, the legal implications of an annulment have been properly enunciated.

But where do such implications of an annulment end? The Justices have succeeded in showing us just one side of the account.

If we say that the entire period before the re-run has been nullified, that also presupposes that all the actions taken by the affected Governors before the re-run also stand nullified. If the law now assumes that the Governors were legally not in office during the period, what of all the actions they took during the same period – the bills they signed into law, all the contracts they awarded, all the appointments they made, all the foreign travels, the goodwill they enjoyed; all the fine girls; their stay in Government House without paying any rent and so on? Should the same eraser that wiped off their stay in office not equally wipe off all these? Otherwise, is it not clear that all these actions were standing on nothing and that they have therefore collapsed?

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 a Governor’s tenure.

The amendment is simply superfluous. The import of the original Section has been that the maximum period a Governor can spend in any of his tenures is four years as against the more than five years, which the Judges are foisting on them.

Any extra day beyond the four years provided by the Constitution has no basis anywhere under our law. All the same, in just the same way that the Governors cannot elongate their tenures through the back door, it will also be unjust to short-change them by any means. We did not expect Governors Sylva, Idris, Nyako, Imoke and Wamakko to come up for re-election in April.

Rather, their elections should come up around July, so as to atone for the three months they spent out of office between their annulments and re-runs. In essence, if they win a second term, their inauguration should come up on the 29th of August, 2011. If nothing changes before then, we must watch out for illegal occupants of the affected Government Houses!

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