Following the recent Federal High Court ruling in Jos which stipulated that the tenure of Governor Segun Oni of Ekiti State started to count from the day he took the first oath of office on May 29, 2007 and concluded that governorship election will hold in the state in 2011, there is anxiety in Ekiti and other states which experienced similar electoral development. The proposed amended 1999 constitution by the National Assembly makes supporting provisions to raise the reservations clouding the affected states
The Presiding Judge of the Federal High Court, Justice Ambrose Allagoa, upheld all the reliefs sought by the plaintiffs, declaring that Oni’s tenure started to run as from May 29, 2007 when he was sworn in and not May 6, 2009 when he was later sworn in after winning a rerun election.
Interpreting the provision of section 180 (2) (a) of the 1999 Constitution, Justice Allagoa held that it was not the whole election that was annulled, adding that for Oni to take his tenure beyond four years, he has to go back to the electorate to seek re-election.
The states with related cases are Adamawa, Kogi, Sokoto, Kebbi, Bayelsa, Cross River, and of course Ekiti. In these states, tongues have continued to wag over the new turn. Most of these governors had spent close to two years in office before their victories were upturned; starting with Governor Ibrahim Idris of Kogi State, Segun Oni (Ekiti), Murtala Nyako (Adamawa), Liyel Imoke (Cross River), Timipre Sylva (Bayelsa), Aliyu Wamakko (Sokoto) and Saidu Dakingari (Kebbi). These governors are insisting that they have to enjoy a fresh four-year term after re-election.
They are relying on the Supreme Court judgment in the case of Governor Peter Obi of Anambra State versus INEC and others. The apex court said Obi’s tenure started on March 17, 2006 when he was sworn-in. They are also relying on Section 180 of the Constitution which states as follows:
(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 a 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.
But the harmonised amended 1999 constitution proposal by the National Assembly provides that once a governor whose election was annulled re-contests and wins, his tenure would count from the first date of election and not the second, a development which continues to generate comments among politicians and legal experts.
In Kogi State where Governor Ibrahim Idris holds sway, there is uncertainty regarding when his tenure expires. He was returned through a rerun poll held on March 29, 2008 sequel to the nullification of his election by the election petition tribunal sitting in Lokoja, the state capital, on October 9, 2007.
While the question of when Idris vacates office had, before now, raised concern, the recent ruling of the High Court on the tenure of Governor Segun Oni of Ekiti State seems to have deepened the controversy raging in the confluence state. Intriguingly, opposition parties in the state say they are banking on the Ekiti ruling to call for the expiration of Governor Idris’ tenure in 2011, while the ruling Peoples Democratic Party (PDP) insists there is no vacancy in Lord Lugard House until 2012.
The state Chairman of the PDP, Mallam Hassan Salawu, refers to those expecting Governor Idris to leave office next year as people who are ignorant of the law, foreclosing the possibility of the 2011 gubernatorial election in the state.
According to him, “There is no basis whatsoever for anybody wanting Governor Idris to leave office in 2011. What happened in Ekiti State does not apply to Kogi State. The election results in few local government areas and wards were cancelled in Ekiti State. But in Kogi State, the candidate of the All Nigerian Peoples Party (ANPP) Prince Abubakar Audu went to court over the exclusion of his name from the ballot paper by the Independent National Electoral Commission (INEC) and consequently, the election results in all the 21 local government areas of the state were nullified. The court ordered a rerun election and Governor Idris returned and took an oath of office again in 2008. By implication, his tenure expires in 2012 since the constitution of the Federal Republic states clearly that the tenure of a governor commences on the day he/she is sworn in. We have already drawn the attention of our lawyer to the matter and we are ready for any court actions that may arise from any quarters.” Salawu said.
However, the state chairman of the Progressive Peoples Alliance (PPA) Ojonuba Simeon promises vigorous legal fireworks against Governor Idris if he attempts to stay in office beyond 2011. He discloses that the PPA in conjunction with other opposition parties will soon drag the incumbent governor to court on the matter, saying that he has no choice but to vacate office next year.
The state chapter of the Action Congress (AC), through its chairman Alhaji Haddy Ametuo, also corroborated his counterpart in the PPA.
The Executive Director of the Centre for Human Rights and Conflict Resolution (CDHR), Kogi State chapter, Idris Miliki Abdul, says only the court will decide the governor’s faith.
“It is a constitutional matter, not a political one and there cannot be sentiments about it. Ekiti went for a rerun election in only six local government areas, unlike all the elections that were cancelled in kogi. Prince Abubakar Audu of ANPP did not complain about the conduct of the 2007 gubernatorial election in Kogi State. He only contested his unlawful exclusion and based on that, the court ordered a rerun and Idris returned as governor,” Idris said.
The Chairman of the state chapter of the Nigerian Bar Association (NBA) Barrister Aliwo Abdullahi says it would be presumptuous to comment on the issue until a court of law pronounces judgment on it. According to him, neither Governor Idris nor the ruling PDP will decide when his tenure expires.
He said, “The question of whether Governor Idris’ tenure expires in 2011 or 2012 is a constitutional matter which is expected to be handled with due recourse to the constitution of the Federal Republic of Nigeria. I think the matter is now in court. So, no one can make any comment on it till the court gives a ruling on it”. Reacting, Governor Idris’s Director-General, Press Affairs and Special Adviser on Media and Public Affairs, Richard Elesho and Zakari Adamu respectively, described the cases of Ekiti and Kogi States on the tenure controversy as incomparable.
According to them, calling for his vacation of office in 2011 is tantamount to plotting a coup, stressing,“It is left to the court to decide on the issue. The most civilized thing is for those asking him to leave office next year to allow the law to take its course.”
In Sokoto State, Governor Aliyu Magatakarda Wamakko said he would comply only with the constitutional provision, saying that if the proposed amended 1999 constitution which provides that Governors who had rerun elections could not stay beyond May 29, 2011 takes effect, he would comply.
Speaking through the state Commissioner for Information, Malam Dahiru Maishanu in a chat with Sunday Trust, Wamakko said, “The constitution review process has not been completely done. It is still on, but if that is what the Constitution says, as law abiding citizens, we are ready to abide it.”
Wamakko who contested the Sokoto state governorship polls held on April 14, 2007 on the platform of the Peoples Democratic Party (PDP) had his elections nullified one year after by the Court of Appeal in Kaduna on April 11, 2008 in the case instituted against him by the Governorship candidate of the Democratic People’s Party,DPP, Alhaji Maigari Dingyadi.
The court consequently ordered a rerun election within 90 days and ordered the Speaker of the State House of Assembly, Alhaji Abdullahi Balarabe Salame to be sworn in as the state acting governor pending the conduct of a rerun election in the state. The rerun election was held on May 24, 2008 and was won by Alhaji Wamakko.
Also commenting on the Constitutional Amendment, Alhaji Maigari Dingyadi said the idea of not extending tenure for governors who had rerun elections was the right move in the right direction.
Dingaydi said, “That is how it should be because the constitution states clearly that a governor or president can only do four years for a term, so by being granted additional years, they will exceed the limit set by the Constitution.”
He lauded the Constitutional Amendment which outlaws affected governors from staying beyond 2011, thereby making their tenure elapse with other governors who were sworn in on May 29, 2007.
In Adamawa, the ruling PDP is in the dark on whether governorship election will hold in 2011 in the state or not as a result of the contentious court verdict and the proposed amended 1999 constitution.
The state secretary of the party, Mr Phineas Elisha said, “I don’t think the Ekiti ruling will affect us, but in case of any eventuality, PDP in Adamawa is intact and ever ready for any election. Let it be tomorrow.’’
However, Gabriel Akapanamasi, a lawyer, was quoted as saying there was no way an election could hold in Adamawa State next year because Nyako’s swearing-in on May 29, 2007 had been nullified by the Court of Appeal and his tenure will start counting on the day he was sworn in after the rerun.
Corroborating the earlier speakers, Barrister Emmanuel Maji added that even the amended 1999 constitution would not apply in the present circumstance of the ‘rerun’ governors. He explained, “The amendment will not have retrospective effect on what has already been established. It has to finish as there is presumption of regularity. If you say their tenure should terminate by 2011, it then means the new regime is a continuation of the previous regime.”
According to him, the constitution does not apply in retrospect when it comes to the matter of right, except there is an enabling law. He said the constitution does not provide for such enabling law.
On his part, Godwin Nboh, an Abuja legal practitioner, insisted that governorship elections should hold in the affected states because the tenure of the governors started on May 29, 2007 and not when they were sworn in after the rerun.
Using Ekiti State as an example, he said, “Segun Oni had been sworn in originally and he had spent some time, no doubt. The result of that election was upturned and later, another election was ordered to be held and the same person emerged as winner. In my view, it is the same people that voted him on the first occasion that voted him again the second time. There are no different sets of people entirely.”
Nboh maintained, “Their tenure will have to date back to the time when they were originally sworn in. In my view, you presume that the governor was validly there because the law said he was valid.”
He added, “Unfortunately, I don’t see a place where they challenged it as such, to take a decision on it that once you win an election twice, you will start from the beginning again. It is a very awkward thing to me, just as when you lost and you take away the money you made throughout your fraudulent tenure. The person who stayed in office in his absence was not a substantive one. It was not that we were having two governors at the same time. So, they cannot say because they were now re-sworn in, they have a fresh mandate, or that the mandate will start running from the time he was re-sworn in, or that he would have to spend another four years. It is wrong.”
The National Chairman of the Labour Party (LP), Barrister Dan Nwanyanwu also declared that the constitutional amendment which stipulates that the tenure of governors who went through a re-run election and won again shall end by next year was the right thing.
He said the decision of the National Assembly members to amend the constitution in that respect was in tandem with the provision of the 1999 Constitution which stipulates that the tenure of a governor should not go beyond four years of single tenure.
“The Labour Party was almost going to court on the same matter,” Barrister Nwanyanwu said. “What the National Assembly did was the most appropriate thing to do in the current situation.”
But Wilfred Atodo, a constitutional lawyer, declared that unless the Supreme Court rules otherwise, there will be no election next year in the affected states. “It is a constitutional issue. My own understanding is that if election was nullified and a fresh one was ordered, whoever wins the fresh election assumes a fresh mandate from that day. If a fresh election is ordered and the person wins and was sworn in, because most of them were sworn in afresh, they took a new oath of office. They didn’t, just after the election, continued what they were doing. So, it’s a serious constitutional matter and I think it is the Supreme Court that will have the final say”.
Corroborating him, Mr Felix Ochigbo said since the victories of the governors were nullified, it means that everything done during the previous tenure was illegal and the mandate will start afresh on the day they were sworn in after the rerun.
He said the amended constitution would have little or no role in the current matter as the constitution does not normally apply in retrospect on matters related to rights.
Another lawyer, Kinsley Adedayo, insisted that whether the winner of a rerun is an incumbent or a challenger, the tenure will start to count on the day he is sworn in. “The Constitution talks of a four-year term reckoned from the date of being sworn in. So, if an election is annulled, the time will start to run from when a new winner is sworn in. Never mind if he was the winner of the annulled election.”
He explained that since the tenure of the governor whose election was nullified was deemed to have been illegal, then it never existed.
“In states where rerun was ordered, there won’t be election next year because the first election was based on illegalities. Whoever wins the election will have to start a fresh tenure of four years. It is believed that the first election that was nullified never existed. The states where a rerun was ordered will have to wait till the tenure of the governors expires, and the proposed amendment can take effect from subsequent acts,” he said.
