Fresh calls for constitutional reforms as Umahi’s sack raises dust

Dust has continued to trail the sack of Governor Dave Umahi of Ebonyi State and his deputy, Kelechi Igwe, by a Federal High Court in Abuja on Tuesday over their defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC). This development, Daily Trust reports, has led to fresh calls for constitutional amendments to address the situation.  

As reactions continue to trail the verdict by members of the public and the judiciary, on Wednesday, youths of the APC stormed the streets in Abakaliki, the state capital, blocked the ever-busy Vanco junction in protest of the court’s pronouncement. 

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For two hours, the protesters, who were seen with APC banners and vests, blocked the roads, thus causing heavy traffic jams.

New court processes fly around

The last 48 hours of the judgement have witnessed a flurry of legal activities from the Ebonyi State Government House, with the governor announcing a mobilisation of 17 senior advocates of Nigeria to appeal the judgement and file a stay of execution at both the Court of Appeal, Enugu, where the first suit on his defection was being appealed, and Abuja, for the latest ruling.  

In the appeal in Abuja, filed by their counsel, Chukwuma Machukwu Ume, a Senior Advocate of Nigeria (SAN), on March 8 with eight grounds, Umahi and his deputy are contending that the trial court erred in law when it misdirected itself to rely on sections 68 and 109 of the Nigerian constitution “in holding that the appellants, having defected from the PDP to the APC, offended the provisions of the constitution and must vacate their offices.”

Umahi’s lawyer further argues that the trial court erred when it failed to recognise the constitutional provision that a candidate receives the votes because they must have participated in all stages of the election. 

“Section 285(13) of the constitution reinstates: An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages,” he quoted.

The appeal was followed by an application for stay of execution of the Federal High Court, Abuja judgement on Thursday, March 10, asking the court and the Independent National Electoral Commission (INEC) to receive the names of the PDP nominees to replace them.

While the two nominees for governor and deputy governor, Rep Iduma Enwo Igariwey and Fred Udeogu respectively, on Thursday sent an advance notice to Umahi and Igwe to vacate their offices in Abakaliki immediately to enable them resume duties in line with the Abuja court order, a fresh order granting the embattled governor and his deputy the power to remain in office for seven more days, began to float in the media on the same day.

Igariwey, the governorship nominee said, “Yesterday and today, former Governor Umahi, in continuing contempt of Justice Inyang Ekwo’s judgement, had since removed him from office, is further depleting the scarce resources of Ebonyi people by bussing poverty-stricken Ebonyi people from their villages to the state capital to demonstrate against the judgement.  

“For Ebonyians who know him very well, this is vintage David Umahi. He will deploy all manner of subterfuge and blackmail to hang onto power, in clear contempt of the order of the court that has since removed him from office.” 

The order of March 10 emanated from an existing separate suit filed by Senator Sonny Ogbuorji of the APC against Governor Umahi over the 2019 governorship election before a Federal High Court in Abakaliki, wherein the presiding judge, Justice Henry Njoku, had similarly on February 28 upheld the position of Governor Umahi.

The latest court order held that “an interim injunction of the court for seven days (subject to renewal), given its judgement in suit no HAB/13/2022 delivered in  February 28, 2022, being a judgement in rem and having procedure over any subsequent contrary judgement.”

The application to retain the governor and deputy governor’s offices was said to be brought according to order 26 rules 1 and 2(1) and order 32 rules 1 and 4(1) of the Federal High Court (civil procedure) rules 2019.

The entire issue began in 2021 when the PDP filed the originating summons contending that the governor and his deputy on one hand, and the 16 state lawmakers who defected with him on November 17, 2020, should vacate their seats. 

The PDP cited the provisions of 221,177(c),106(d), and 65(2)(b) of the Nigerian constitution of 1999.

The judge had said the governor failed to controvert the depositions of the PDP that he was elected on its platform in the March 9, 2019 governorship election, adding that the immunity clause of section 308 of the Nigerian constitution does not apply to political matters. 

He maintained that the option for the governor and his deputy was to vacate office and wait for the next election to contest under the platform of the new party.

“The third and fourth defendants (Umahi and Igwe) cannot transfer the votes and victory of the plaintiff (PDP) on March 9, 2019 to the APC.

“The offices of the governor and deputy governor of Ebonyi State belong to the PDP,” the judge said.

In the case of the 16 members of the state assembly, Justice Ekwo said the defection of the speaker alongside the other members had made the application of section 109(1)(g) and (2) impracticable for him to give effect on declaring their seats vacant.

“It is not expected that the speaker will preside over affairs concerning defection when he is part of the defectors.

“I see their act of defection as a blatant confrontation of the constitutional order, with the intent that they could employ technical defence to justify their decision,” he said.

The governor further ordered the lawmakers to forfeit all salaries and allowances collected from the period of defection, November 17, 2020 till date, to government’s coffers. 

Umahi, NBA spar over judgement

Following Governor Umahi’s criticism of the judge and the judgement, the president of the Nigerian Bar Association (NBA), Olumide Akpata, released a statement condemning his comments.

Umahi had described the judgement as a “jungle justice” and “a hatchet man’s job.”

But the NBA described Umahi’s comments as “national embarrassment, disgraceful, undemocratic and completely unacceptable.”

The NBA demanded an apology from the governor and a retraction of the comments he made and be given the same media coverage as the “unfortunate comments were made.”

While addressing thousands of his supporters in Abakaliki on Wednesday, the governor clarified his earlier outburst against the judiciary, saying his attacks were directed at lawyers who misled the judge and carried out the “hatchet job” and that he would report them to the NBA.

On Thursday, Akpata confirmed on Facebook that he had received an unreserved apology of Governor Umahi for his comments, explaining that the governor addressed his supporters and charged them to remain calm and refrain from denigrating the judiciary.

He explained that he had a lengthy phone conversation with the governor, who clarified his comments to the association and members of the judiciary.

“I will immediately transmit this apology to Justice Ekwo and the Chief Justice of Nigeria, who is the head of the judiciary in Nigeria and urge them to also accept same,” he said.

Higher courts to decide matter – Lawyers

Lawyers have submitted that higher courts will determine the fate of the governor and his deputy.

In his reaction, a former attorney-general of Ekiti State, Dayo Akinlaja (SAN) said the fate of the governor, his deputy and the state lawmakers would be decided on appeal. 

“It is a novel situation that the Federal High Court in Abuja tried to rule on.

“They should go on appeal; and it is almost certain that whatever the Court of Appeal decides will still go to the Supreme Court. 

“We should allow the courts to decide, and at the end of the day, what the final court says shall be the law.” 

In his view, Mike Ozekhome (SAN) said the decision of the court would be upturned on appeal because it cannot stand the “acid test of constitutionalism nor pass the furnace of appellate court’s scrutiny.”

He said the judge may not have been availed with the provisions of sections 180,188 of the Nigerian constitution.

“The appellate courts have since held again and again that votes cast in an election belong to a live candidate and not the political party, which merely serves as a vehicle that enthrones candidates,” he said.

Also reacting, Hameed Ajibola Jimoh said the judgement was a demonstration of judicial activism to effect reforms in Nigeria’s constitution, where people elected in one political platform unabashedly defect to another.

He advocated the inclusion of a provision on decampment of a state governor in the ongoing constitutional amendment of the National Assembly to discourage the practice and advance the country’s democracy.