By Innocent Anaba
CAROL Ajie  is a lawyer and activist. She is the founder and moderator of “Our Country Nigeria” internet forum and Fellow of Leadership and Advocacy for Women in Africa, LAWA, programme of Georgetown University Law Center, Washington, D.C. In this interview, she spoke on Supreme Court judgment on the tenure elongation suit by the five governors and some other national issues. Excerpt:

HAVING just come out of tenure elongation struggles with the Supreme Court verdict made on January 12, against the Governors of five states. What were the factors that motivated you when you began the struggle years ago?

Intrinsically, anti-tenure extension struggles were intended to check the illegitimate ambitions of Governors who sought to use the imaginary lacuna in section 180(2) of the 1999 constitution to extend their tenures beyond the four years’ regime clearly stipulated in the 1999 Constitution per term of four years per person and a maximum of eight years in total.

* Carol Ajie

It began with a presidential declaration in April 2009 by President Musa Yar’Adua, may his gentle soul rest in perfect peace. I took objection.

At the time, Governor Oni of Ekiti State had won his re-run election after the Court of Appeal had nullified his first election on grounds of massive irregularities, monumental malpractices of rigging and votes buying assisted by electoral umpires turned into un-democratic tools.

Fresh term of four years

After the re-run, Oni was sworn in again, and he and his political party, Peoples Democratic Party, PDP, opined that that translated to a fresh term of four years beginning from the date of his second swearing-in meaning a longer stay in office from 2007-2013 (six years) per term as against the four-year term provided, and thereafter an indeterminate period with the potentials for life-term Governorship regimes of unaccountability and intransigence, a step to constitutional autocracy and anarchy, anaemic to democracy. This is unacceptable.

How did interventions stop the constitutional crisis envisaged?

I started the debate in the media to espouse section 180(2) of the Constitution, 1999 and challenged proponents of tenure elongation in public fora including radio stations to debates and took the struggles through our law courts.

I argued that Peter Obi had been misread and Justice Aderemi’s dictum taken out of context. I relied on Ladoja vs. INEC & 2 Ors., where the Supreme Court held that the period Ladoja was out of office as Governor of Oyo State (eleven months) computed in counting his four-year term much less Governors removed from office for fundamental electoral machination that lead to annulled results.

That the second Oaths taking was an abundant indulgence bearing in mind that the Oath was but an overarching guidance to affirm the transcendence of faith and allegiance to country and did not confer a fresh term in those circumstances.

Those on the other side of the debate argued in support of tenure elongation and misapplied the principle enunciated in Obi  vs. INEC. But INEC also mis-interpreted it when it wrote to the five Governors in 2009 advising that Governorship elections were not going to hold in 2011 in their States because it was relying on Obi vs. INEC & 16 Ors.

Happily, the Supreme Court’s judgment of January 27, corrected the mistake of the two courts below. Their lordships distinguished Obi v. INEC from the present scenario; stopped the impunity of tenure elongation under the 1999 Constitution, before its amendment because words are construed res magis valeat quam pereat, to give a sensible meaning to them, and to ensure that the intention of the legislature is not defeated.

Re-run election

The National Assembly and the States Houses of Assembly had by the First Alteration Act, 2010, amended the provision to make more clear section 180(2)A of the Constitution to now read: “ In the determination of the four-year term of, where a re-run election has taken place and the person earlier sworn-in wins the re-run election, the term spent in office before the date of the election was annulled shall be taken into account.” Happily, the cycle of democratic victory is complete, and I congratulate Nigerians for enduring.

Has the Supreme Court judgment strengthened our nation’s democracy, for real? And if so, why did the lead judgment of Walter Onnoghen JSC not make consequential orders of vacation from office directed against the five governors?

Yes. Our nation’s democracy has been strengthened. Because the judgment overwhelmingly rejected tenure elongation; so when governors take Oaths of allegiance and Oaths of office, after an election in which they were the beneficiaries of certain malpractices that led to the nullification of their elections, and the same set of persons returned as winners of fresh elections, such Governors cannot extend their tenures ad abundantiam not to make mockery of the cherished maxim, ex turpi causa non oritur actio – from a dishonorable cause an action does not arise as no man is to profit from his wrong.

The golden rule fiat justitia ruat caelum – justice be done, the sky will not fall, having been enhanced, politicians will now be disallowed from taking advantage of imaginary lacunae in the Constitution to propagate electoral injustice.

The lead judgment of Justice Walter Onnoghen, said at page 41 and I quote: “I allow the appeals which have been demonstrated to be meritorious and set aside the judgments of the lower courts. In consequence, I hold that the tenure of the first respondents (Governors) began on May 29, 2007 and terminated May 28, 2011 being four years allowed by the 1999 Constitution.”

There was no dissenter, all seven Justices of the Supreme Court together with Musdapher, the Chief Justice of Nigeria, CJN agreed. The concurrent judgment of Justice Muntaka-Coomassie JSC at pages 46-47 reads: The 3rd respondent, INEC, is hereby ordered to conduct elections in the respective states as the four year term granted the affected governors by the constitution had expired and consequently the 1st respondent and the other beneficiaries shall forthwith vacate their respective offices.

However, any state where the election has not been held and the four year term has expired, the Speaker of the House of Assembly of that state shall be sworn in as the Acting Governor pending the holding and the swearing-in of a substantive governor. That in my humble view edifies and complements the lead judgment.

In Kogi State, two persons were sworn-in simultaneously as governors, the Speaker and the then Governor-elect Wada, what gave rise to that confusion? And why did Governor Sylva not participate in the Bayelsa Governorship election on February 11, at which Henry Dickson emerged when Sylva was the one who had been cleared to run prior to Supreme Court judgment?

Recall that following the judgment, the Attorney General of the Federation issued a statement in line with section 191(2) of the constitution that Speakers should be sworn-in pending the conduct by INEC of new elections. So the Speaker of Kogi State House of Assembly was sworn-in by the Chief Judge of the state.

On the same day, Alhaji Idris Wada was sworn-in by the President of the Customary Court of Appeal of the state, both Oaths were administered acted pursuant to section 185(2) of the 1999 constitution, unfortunately on two persons rather than one.

I think though that the Speaker has gone back to the House and Alhaji Wada is now at the helm of affairs, tackling litigation challenges against his election of December 3, which took place during the pendency of Supreme Court appeal, at which INEC was an appellant yet could not wait for the outcome of Supreme Court appeal it had filed and argued on November 29, 2011, and reserved for judgment, before it went ahead to conduct the December 3, election and declared Wada the winner.

Should INEC Chairman Prof Jega be brought to face contempt of proceedings when the Supreme Court in the passage quoted gave indications that it recognized that certain elections held? The legal puzzle could be resolved in court one way or the other in due course. Ditto for Bayelsa State.

I hasten to add though that Sylva was the first of the five Governor to rush to court to seek tenure elongation before the Justice Adamu Bello, Abuja in 2010, upon receipt of the second Notice issued by INEC to the Governors that following the First Alteration Act, 2010, section 180(2)A, has now allowed fresh elections in the five States, to hold in April 2011 election.

Another INEC major mis-step because by that notice, INEC wrongly applied the law. Had the Governors agreed to participate in the April 2011 elections, Sylva’s job may have been saved. But they wanted tenure extension, Sylva ended with tenure-stall.

Having said that, if the court holds that the primaries that presented Sylva superceded Dickson’s, we will experience another Amaechi vs. Omehia and Sylva would be returned to the governor’s seat, otherwise it is ironical that he started tenure elongation case and became the biggest casualty.

Finally, are you aware that there is a bill in the National Assembly being sponsored to extend to 75 years, the retirement age for the Chief Justice, the Justice Musdapher CJN who is due to vacate his office in July this year when he attains the mandatory retirement age of 70.

Is the move intended to scuttle or delay the ascension to the office of the next most senior and most eligible Justice Aloma Mukhtar, who would be the first woman to be so honored, in the event of Justice Musdapher retiring on July 17, 2012?

I am not aware of any bill on judicial tenure elongation and I do not know who the sponsors of the bill are, at this time. I look forward to celebrating the promotion of every professional woman particularly those who make deserving ‘firsts’. We deeply desire a Country built on integrity, truth and justice, our men and women ought to be given equal opportunities of growth to secure peace communally and globally.