*The issues *The Contradictions *The Controversies

This is a story of how not to interpret the 1999 Constitution of the Federal Republic of Nigeria.  Before the Supreme Court, there is an appeal from the Independent National Electoral Commission, INEC, challenging the Court of Appeal’s decision that a state governor can spend more that four years in office.  But beyond the decision that is being challenged, there are issues, controversies and even contradictions in the entire matter.  This report attempts to engender a resolution.

By Jide Ajani & Ikechukwu Nnochiri

This matter was bound to get to a head!

With the convolution in the 1999 Constitution of the Federal Republic of Nigeria (without prejudice to its amendments), there were bound to be some sections of the constitution that were never going to add up.

One of such is the provision which relates to the tenure of office of a state governor Section 180(1) and (2).

It states:
180. (1) subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until _
(a) When his successor in office takes the oath of that office; or
(b) he dies whilst holding such office; or
(c) the date when his resignation from office takes effect; or
(d) he otherwise ceases to hold office in accordance with the provisions of this constitution.
(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of period of four years commencing from the date when _
(a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and
(b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

Now, because the Court of Appeal nullified the election in 2007 of the Governors of Adamawa, Bayelsa, Cross River, Kogi and Sokoto States., ordering repeat elections in those states, and especially because the same persons thereafter won the ordered repeat elections, some people are wondering whether the intendment of Section 180(2) is being observed in the breach or observance.  The contention here is whether the oath taken kick starts the commencement date for the tenure or whether the oaths can be taken severally in so far as it is a four year tenure at a stretch.

There are fresh suggestions in some quarters that what the Court of Appeal did was only to nullify the election of the Governors; that the Court did not nullify or invalidate the OATH OF OFFICE that the Governors took on May 29th 2007. The general assumption that because their initial election was invalidated then their initial inauguration based on the initial election result was also invalid may not exactly be a correct interpretation. The 1999 Constitution stipulates that the tenure of a Governor runs from the date the Governor ‘took the Oath of Allegiance and Oath of Office’.  (Section 180(2) (a)). The Constitution does not anchor tenure on the election but on the taking of the Oaths. Consequently, unless the oaths taken by the governors on May 29th 2007 were nullified, their tenure of office must be taken to have commenced on that date of oath taking.

That the elections were nullified did not in any way suggest that the oaths taken were nullified.  Did the court invalidate the oaths?  No.

In addition, it follows that the election that initially brought them to office, though subsequently invalidated, was not ineffectual as it had served as a valid foundation for their oath of office.

Sunday Vanguard was made to understand that “the validity of the initial inauguration of the Governors, regardless of subsequent invalidation of their initial election results can be seen in the fact that all actions they took after their initial inauguration remain valid and legal. Laws they signed as State Governors remain binding.

Indeed that is why a man like Dr. Chris Ngige who served three years as a Governor before his election was invalidated could still be rightly called a former Governor. He might not have been validly elected, but he did serve validly, for the simple reason that he was sworn in. The reason for this is quite simple: INAUGURATION as Governor is a distinct exercise from ELECTION as Governor. Thus once inaugurated into office under the Constitution by taking the oath of office, the governor remains a valid and legitimate governor until the invalidity of his office is pronounced by the Court/Tribunal. If therefore the Constitution stipulates that the four_year tenure commences from the date a Governor ‘TOOK OATH OF ALLEGIANCE AND OFFICE’, instead of the date he was ‘ELECTED INTO OFFICE’, it raises serious issues for constitutional interpretation”.

If the Constitution had stipulated that the tenure commences on the date the governor was elected, then subsequent invalidation of the election will affect the computation of the commencement date of his tenure. Again, the Constitution does not say that the tenure of the Governor commences on the day he ‘took the Oath of Allegiance/Office based on his victory at the elections’. In the section that deals with Oaths of Allegiance/Office and commencement of tenure, the Constitution is remarkably silent on the election that brought the individual to the podium.  This is part of the contradictions in the constitution.

In some legal documents that Sunday Vanguard obtained, it was argued that “we must keep in mind the counter_argument: that once the election on the basis of which a Governor took the Oath of Office is nullified, then all subsequent actions based on that election, including the Oath of Office stand annulled, because as the legal principle that ‘you can’t put something on nothing’ (McFOY vs UAC). We are only saying that equally cogent arguments can be made to the contrary, to the effect that the Oath of Office stands independent of the election, based on the Constitutional provision, and based on the maxim that ‘government does not admit of a vacuum’.

If the law holds that the oath taken by the Governors-elect was invalid just because their election was subsequently nullified, this would mean that for the period they served as Governor between May 29th, 2007 and the date their election was nullified by the Court of Appeal, there was no government in their States, and every action they took as governor during that period was invalid: every action they took, every statute they signed, every budget they passed, every appointment they made, the salaries and allowances they received, were all illegitimate and should be reversed”.  This would have been disastrous.

Another question that becomes pertinent in the light of this is: “Could it have been the intention of the authors of the 1999 Constitution that one person could serve for many years as Governor, and then because his election is nullified, he goes for a re-run, now fully empowered by the resources of State under his command, and he wins reelection and commences another four-year term from the scratch. What if the results of the repeat election was challenged and overturned again two years into this second tenure, would he still continue again, thereby creating a situation where the state is left in perpetuity in the hands of just an individual?  Or why can an individual not subvert the process by creating opposition to his victory only to turn round and have his election nullified serially while he also serially wins”?

This possibility almost emerged after almost four years Governor Uduaghan’s 2007 election was nullified, a mere five months before the next election cycle. He stood in the re-run and won again. Would we have assumed automatically that Uduaghan would have served for the next four years as Governor, making him Governor for a total of eight years based only on the 2007 election cycle? Could this have been the intention of the framers of the 1999 Constitution?
Therefore, on Thursday, the full-blown hearing on the suit seeking to sack the five sitting governors from office before next year, could not commence at the Supreme Court owing to a petition filed against the Attorney General of the Federation (AGF) and Minister of Justice, Mohammed Bello Adoke, SAN, by the Bayelsa State government.

The Bayelsa state government under Governor Timipre Sylva is challenging the propriety of an invitation that was extended to the AGF by a 5-man panel of justices of the apex court, which had requested him to be present in court during the hearing with a view to assisting the panel as an ‘amicus curie’, a legal terminology that means ‘a friend of the court’.  The panel had equally extended the same invitation to two other Senior Advocates of Nigeria, Professor Itse Sagay and a former Justice Minister, Richard Akinjide.

They were specifically asked to appear and help the court to iron out some of the controversies surrounding section 180(2) of the 1999 constitution, which the lower courts relied upon to bar INEC from conducting elections in five states of the federation till next year.

INEC was stopped from holding elections in the states on the premise that the four year tenure of their incumbent governors was yet to expire, a decision that is now subject of litigation before the Supreme Court.

The Bayelsa state government via a protest letter it forwarded to the Chief Justice of Nigeria, CJN, Justice Dahiru Musdapher, insisted that the AGF was bereft of the locus to offer any advice on the controversial tenure dispute.  Adducing its reasons in the petition it filed through its lead counsel, Chief Ladi Rotimi_Williams, the state maintained that granting such status to the AGF would amount to making him an indirect judge in his own case.

The petitioner specifically drew the attention of the CJN to the fact that the AGF is equally a defendant in the suit, contending that he was therefore bereft of the locus to act as an unbiased amicus_curie.  It maintained that the AGF has no role to play in the appeal other than support the judgment that was delivered on July 31 by the Abuja Division of the appellate court which had dismissed a similar appeal that was lodged before it by INEC as grossly lacking in merit.

Meanwhile, sequel to the protest letter against the AGF, the Supreme Court on Thursday shifted hearing on the substantive appeal by INEC till November 21.
The adjournment will enable the 5-man panel of justices presiding over the matter, to consider the merits or otherwise of the petitioners arguments.

The five Justices on the adjudicatory panel are Justices Mahmud Mohammed, Christopher Mitchel Chukwuma-Eneh, Muhammad Saifullah Muntaka-Coomassie, John Afolabi Fabiyi and Sulaiman Galadima.

INEC had gone before the apex court with a view to getting a superior order that will nullify the earlier decisions of a Federal High Court and the Abuja Division of the Court of Appeal, which had in their separate judgments, barred INEC from conducting elections in the five states till next year.

It is praying the Supreme Court to hold that the tenure of governors Ibrahim Idris of Kogi State, Aliyu Wammako (Sokoto), Murtala Nyako (Adamawa), Liyel Imoke (Cross River) and Timipre Sylva (Bayelsa), ought to have expired on May 29 this year.

It would be recalled that the lower courts had in their separate judgments, relied on the provisions of section 180(2) of the 1999 constitution, to insist that it would be unconstitutional for INEC to compel the aforementioned governors to vacate their respective offices before the expiration of their statutory four year tenure stipulated in the law.  Consequent on that judgment, only 26 states of the federation participated in the governorship election that held on April 26, as five other states consisting of Anambra, Ekiti, Ondo, Osun and Edo, were  ab-initio excluded from the polls considering that the tenure of their sitting governors were yet to expire.

Though the initial judgment on the controversial matter was delivered by trial justice Adamu Bello of the Federal High Court on February 23, however, a 5-man panel of justices of the appellate court on July 31, affirmed the decision, even as they dismissed an appeal that was filed against it by INEC.

The court went ahead to set dates for the expiration of their tenures as, Governor Idris, Kogi, April 5, 2012; Wammakko, Sokoto, May 8, 2012, Sylva, Bayelsa, May 29, 2012, Imoke, Cross River, August 28, 2012, and Nyako, Adamawa, April 30, 2012.

Dissatisfied with the verdict, INEC proceeded on appeal, insisting that the four year tenures of the governors started to run when they first took their oath of offices in May 2007.
INEC urged the court to allow the appeal and set aside the decision of the lower court which it said was entered in error. It maintained the governors were caught by the constitution of the Federal Republic of Nigeria, 2010, as amended, contending that the governors were exercising delegated powers of the electorate which were for a specific period of four years.
The appellate court held that the tenure of the affected governors will legally expire next year considering that fresh oath of office and oath of allegiance were separately administered to them in 2008, after their previous elections of April 14, 2007, were nullified by various divisions of the Appeal Court.

In the court processes filed on behalf of INEC by its lead counsel, Dr. Onyechi Ikpeazu, SAN, the commission argued that the justices of the Appeal Court erred in law 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 commission’s view, the judgment 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.

Ground two of the appeal reads: “The learned justices of the court of appeal erred in law and occasioned a gross miscarriage of justice when they held that the oaths subscribed to by the governors pursuant to their victory in the re-run elections conducted in the states were the oaths of office and of allegiance taken by them as persons first elected as governors under the constitution.”  Likewise, a former Lagos State Administrator, Buba Marwa, has equally secured the nod of the apex court to appeal the judgment of the Court of Appeal as an interested party.

Though Marwa’s lawyer, Chief Wole Olanipekun (SAN), appeared in court at the last sitting, however, hearing could not commence owing to plea by INEC and the Peoples Democratic Party (PDP) for a short adjournment.

Unfortunately, there is a poisoning of the atmosphere. The primaries for the elections slated for next year are supposed to begin in earnest.

With the adjournment of the hearing to November 21, is the Supreme Court not unwittingly creating a fiat accompli situation whereby the electorate is presented with no choice but to accept what has happened? And in the event that the Supreme Court decides to remove the governors from  office, would the funds and energies deployed in commencing the processes leading to the elections next year not have come to naught!