Friday, 06 January 2012 05:14

The Imperative of A Realistic Interpretation Of The Tenure Of Governors Elected After Nullification Of Previous Mandates

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There is no doubt that the conduct of the April 2007, general election was a complete and unmitigated disaster. The elections were marred by substantial irregularities of unimaginable proportion never seen or experienced in the chequered history of the conduct of elections in the country. This led to the nullification of Governorship elections in Cross River, Kogi, Edo, Ondo, Adamawa, Enugu, and Bayelsa State, to mention but a few. In the case of Cross River, Sokoto, Kogi and Adamawa States, the Governors were booted out of office after the Courts declared that the elections that brought them into office were not properly conducted. Some of these Governors had stayed in office more than one year before the nullification of their election. For instance Liyel Imoke of Cross River State had stayed in office more than one Year (state specific period) before the Court of Appeal annulled his election on the 14th July, 2008.

The hiatus in the Electoral Act had given the opportunity to those whose elections were nullified on ground of substantial non-compliance to re-contest the fresh elections ordered by the Court. In all cases, all the Governors whose elections were voided have managed to win these fresh elections and have assumed office once again. Some people have cynically and sarcastically put it that all the Governors are clamouring for nullification of their election because they think the period which they were in office before the nullification will not be counted for the purpose of determination/ computation of when the time will began to run from when they assumed or came into office.

In one State where the election of the Governor was annulled by the Court, a Senator (who incidentally is a Senior Advocate of Nigeria) in a rather cavalier manner was reported to have ridiculed the opposition for being instrumental to his Party Candidate's tenure elongation. There can be no doubt that this Senator and all those who subscribe to the view that Governors whose elections were nullified will invariably benefit from tenure elongation because the period they were in office before nullification will not be counted, probably draw their inspiration from the case of Peter Obi V. Independent National Electoral Commission (2007) 11 Nigerian Weekly Law Report (Part 1046) 565.

The facts of Peter Obi's case are as Follows: Peter Obi was sworn into office on 17th March 2006 after he successfully established that he should have been returned as Governor having scored the majority of lawful votes cast in the election for governorship of Anambra State in the April 2003 general election. By virtue of Section 180 (2) of the Constitution of the Federal Republic of Nigeria, 1999 which provides that ----. Mr. Obi had only served for nearly one year of the four years tenure before the Electoral Commission ordered a general election, thereby bringing his tenure to a premature end.

Consequently he filed an action in the Federal High Court challenging the decision of the Independent National Electoral Commission to hold gubernatorial election in Anambra State on the ground that his tenure of office will expire in March 2010 rather than 2007, having taken Oath of Office on the 17th March 2006. He lost the case in both the Federal High Court and the Court of Appeal. However on further appeal to the Supreme Court, the Court held that the period of computation of the tenure of office of Governor for the purpose of ascertaining when his tenure will expire starts from the day when he took the Oath of Office not from the day when the person who was wrongly returned by the Electoral Commission was sworn into office.

Relying on the above judgment, there have been several insinuations that the term of office of the Governors whose elections were nullified will be automatically elongated as the calculation of time, for the purpose of general election, will commence not from the time they were sworn into office before their election was annulled, but from the time they were sworn in after the nullification of their election. That should not be the case as it is crystal clear that the case of Peter Obi v. INEC is different from the scenario that took place in States where elections of seating Governors were voided. In these States, the Governors took oath of office and effectively and effectually assumed the office. The basic principle of law which is strongly rooted in our jurisprudence is that no one will be allowed to benefit from his own wrong doing. This is what it will amount to if those whose elections were nullified on grounds substantial non-compliance (such as hoarding or withholding of results sheets to polling stations as in the Cross River case) are nullified by the Tribunal and fresh election conducted emerges winner.

Why would the years these Governors had spend in office not taken be into account in the computation of time for the purpose of determining when their tenure will expire? If this is the position what becomes of the all official acts or conducts taken by the Governor whose election is nullified? What becomes of the salary paid to the Governor during the period he was in office before his election was nullified? What becomes of the appointment made by the Governor such as Special Assistants, Commissioners etc before his election was nullified? Are these appointments illegal or a nullity? What of the promulgamation of the House of Assembly which the Governor is constitutionally empowered to make? Is the promulgamation of the House of Assembly by a Governor which election was nullified a nullity?

If these acts of the Governor and appointments made by him are not invalidate it therefore means that the acts of the Governor during the period before the nullification of his election, is not a nullity even though his election was nullity. If the acts of the Governor are regarded as valid, it therefore means the tenure of such a Governor is not completely void. The Governor cannot collect salary from the public patrimony and turn round to contend that his previous period he spent in office should not be counted with the period he will stay in office after the fresh election? It is our view that such a narrow construction or interpretation will lead to absurdity, confusion and a constitutional crisis of unimaginable proportion to hold the view that the acts or conducts or appointment made by a Governor whose election was voided by the Court amounts to a nullity. The correct approach or perspective is that the period the Governor was in office before the nullification of his election should be taken into account in the computation of time for the purpose of calculating when his tenure of office will start and terminate.

Another case decided by the Supreme Court which has to do with the tenure of a Governor who was impeached from office but which impeachment was declared wrongful and unconstitutional by the Court was the case of Rashid Ladoja v. Independent National Electoral Commission (2007) 12 Nigerian Weekly Law Report (Part 1047) 119.

The Appellant in that case had challenged the decision of the Independent National Electoral Commission to order the conduct of election in Oyo State on the ground the period which he was out of office on account of his impeachment that was declared null and void by the Supreme Court should not be computed in the period he is constitutionally required to stay in office. At the hearing the Appellant's Counsel argued eloquently and persuasively that once the event which interrupted the tenure of the Appellant was pronounced illegal, the Court ought to compensate him by granting him an extension of tenure for the period of 11 months which the improper impeachment denied him. The Supreme Court held that the period Mr. Ladoja was out of office must be added to the time for the computation of the time when his tenure will expire. The Supreme Court stated the position of the Law thus:

'Neither the Supreme Court nor any other Court has power to extend the period of four years prescribed for a Governor of a State beyond the terminal date calculated from the date he took office...much as one may be in sympathy with the Plaintiff /Appellant's cause, it seems to me that to accede to his request will occasion much violence to the Constitution. This court can interpret the Constitution but it cannot rewrite it. In awareness of the possibility that an occurrence may prevent a Governor from being sworn in the same date as his counterparts in the country, section 180 (2) states that tenure be computed from the date the oath of allegiance and oath of office is taken. There is no similar provision to protect a Governor improperly impeached. I am therefore, unable to perform a duty which the Constitution has not vested in the Court'.

This is the most realistic and progressive position, which the Supreme Court should affirm in the event that there is a legal challenge in respect of the legality of the tenure of Governors who had served some period in office before their election was nullified fails to leave office on the four anniversary of their subscription to the Oath of Allegiance and Oath of Office. I think those who have been wallowing in the belief that Governors whose elections were annulled but won in the fresh election should be deducted the period they had served previously out of the period from their fresh mandate are living in a fool paradise. The truth of the matter is that I foresee a spate of litigation awaits these classes of Governors if the Independent National Electoral Commission fails to call election when their tenures expires on the fourth anniversary from when they first took the oath of office on their return over election that were nullified.

• Obono-Obla is a Barrister, Solicitor & Civil Society Activist. He lives in and practices Law in Abuja, Nigeria.

Note: This Essay was first published in 2008 in the Nigeria Village Square. There is current a legal tussle raging in the Supreme Court of Nigeria over the issues discussed in this essay concerning the tenure of Five State Governors.

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Okoi Ofem Obono-Obla

Obono-Obla is a Barrister, Solicitor & Civil Society Activist. He lives in and practices Law in Abuja, Nigeria.