 |
| Clockwise - Imoke, Wammako, Sylva, Nyako, Idris |
Those affected are Murtala Nyako (Adamawa); Liyel Imoke (Cross River); Ibrahim Idris (Kogi); Timipre Sylva (Bayelsa); and Aliyu Wamakko (Sokoto).
In a landmark ruling, the apex court held that the tenure of the governors commenced on May 29, 2007, when they took their initial oath of office, and not on the various dates they took their second oath of office in 2008, following their victories in by-election.
The apex court held that the nullification of an election did not affect the oath of office the governors took before the nullification of the said election, especially as the cancellation of the poll did not affect the validity of the actions taken by the governors before the election was nullified.
The SC made the declaration in its judgement in an appeal brought by the Congress for Progressive Change governorship candidate in Adamawa, Brig.-Gen. Buba Marwa (retd) and the Independent National Electoral Commission, challenging the decision of the Court of Appeal, Abuja Division.
The appellate court had upheld the decision of an Abuja Federal High Court that extended the tenure of the five governors beyond May 29, 2011.
In a unanimous decision, the seven-man panel of justices of the SC, made of the Chief Justice of Nigeria, Justice Dahiru Musdapher, and Justices Mahmud Mukhtar, Walter Onnonghen, Chukwuma Ene, Ibrahim Coomasie, Olufunlola Adekeye and Mary Peter-Odili, held that the provisions of Section 180 (1, 2 and 3) of the 1999 Constitution, as amended, stipulated that a governor’s tenure in office must not exceed four years from the date when he took the oath of allegiance and oath of office.
In the lead judgement read by Onnoghen, the court noted that the judgement was on six consolidated appeals arising from the 2007 governorship election in the concerned states. In all the states, the governorship elections held in 2007 were nullified after the governors had already spent more than one year in office, leading to the conduct of fresh elections in 2008.
And in all the reruns, the same governors won again, a development which saw them taking fresh oaths of allegiance and office in 2008, thereby commencing a fresh term in office.
Onnoghen noted that the SC’s major task was to resolve the question arising from the development, being whether the tenure of office of the five governors elapsed after four years, counting from May 29, 2007, when they took the initial oath of office, or four years counting from the date they took the second oath of office in 2008.
He went ahead to dismiss the preliminary objection raised by the Peoples Democratic Party against the appeal, in which the party called on the court to dismiss the petition largely on the grounds that it was a mere academic exercise.
Dismissing the PDP’s preliminary objection, Onnoghen stressed that the SC could not dismiss the appeal on the grounds of mere technicalities, as it dealt with a matter of grave constitutional importance.
“The main issue is a matter of grave constitutional importance and ought to be resolved on merit. The preliminary objection was an attempt to waste the time of this court. So the objection is consequently overruled as lacking in merit,” Onnoghen held.
Onnoghen went ahead to stress that “judging by the language” of Section 180 (2) of the 1999 Constitution, as amended, “a governor can only spend four years in a tenure.”
The section states, “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.”
Continuing, Onnoghen held, “Section 180 of the 1999 Constitution did not envisage a rerun election or that the same persons who won the first election will also win the rerun.
“It is very clear from the 1999 Constitution that nobody elected as governor can remain in office a day longer than the intended time – otherwise that will defeat the intention of the framers of the Constitution.”
He went ahead to dismiss the argument advanced by counsel to the five governors that, although their actions in office prior to the nullification of their election remain valid, the time they spent in office before the nullification of the election had been voided and should therefore not be counted as part of their tenure.
Onnoghen noted that “the argument that the annulled election did not take place is brilliant”, but he noted that it did not address the fact that the actions of the governors during the period were binding and valid.
“It only meant that the election which was annulled was only voidable, not void.
“Since the acts they performed prior to the nullification remained valid and consistent, the oath they took on May 29, 2007 remains valid”, he stressed.
Onnoghen drew laughter from the crowded courtroom when he noted that governors could perpetuate themselves in power by having their elections annulled and “continue to win rerun elections and continue a cycle of impunity.”
He went ahead to hold that “the 1999 Constitution has no room for self-succession for a period exceeding four years – the nullification of an election does not affect the oaths the governors took prior to the nullification of the election.
“To uphold the validity of the actions the governors took prior to the nullification and reject the time they spent in office prior to the nullification does not follow common sense.
“They were certainly governors, de facto, before their election was nullified”, he said, adding that the tenure of office “cannot be extended, expanded or stretched beyond the constitutional provision of four years.”
Onnoghen said, “The second oath of office taken in 2008, though necessary for their continued stay in office, is superfluous when resolving the tenure of governors.
“I therefore resolve the issue against the respondents.
“I allow the appeal which has been demonstrated to be meritorious and thereby set aside the order of the lower court.
“I hold that the tenure of the five respondents began on the 29th of May, 2007 and elapsed on the 29th of May, 2011.”
In their short remarks, all the other members of the panel agreed with the lead judgement.
Onnoghen delivered Musdapher’s remark, as the CJN was absent.
Before arriving at its judgement in the appeal, the SC had invited three legal luminaries, as amicus curiae (friends of the court) to advise it on how to resolve the matter.
Two of the amicus curiae, foremost constitutional lawyer, Prof. Itse Sagay, SAN; and Olukanyinsola Ajayi, SAN, had advised the court to remove the governors, but the third, a former Attorney-General of the Federation, Chief Richard Akinjide, SAN, told the court to uphold the decision of the Court of Appeal, and allow the extension of the tenure of the five governors.
The Court of Appeal had agreed with the decision of a FHC, which held that the five governors’ tenure commenced from the date they took the second oath of office in 2008.
An FHC, presided by Justice Adamu Bello, had in its judgement ruled that the tenure of the governors started in 2008 when they took a fresh oath of allegiance and oath of office after their victories in the reruns conducted by INEC.
INEC conducted the rerun elections in Adamawa, Cross River, Bayelsa, Sokoto and Kogi after the appeal court nullified the April 14, 2007 elections in the states.
Bello had held that since the 2007 elections were nullified and set aside by competent courts, the oaths of office and oath of allegiance subscribed to by the governors had also been nullified.
After a panel of five justices of the Court of Appeal, chaired by Justice Muhammad Garuba, upheld the judgement, the governorship election initially scheduled for April 26, 2011, no longer held in the five states, prompting INEC to set new dates for the poll in the states in 2012.
INEC has already released the timetable for the states, while that of Kogi was conducted last year.
Marwa, who was preparing to contest the governorship election in Adamawa under the CPC umbrella before INEC postponed the election to Feb 4, challenged the decision of the Court of Appeal, which upheld the decision of the FHC that extended the tenure of the five governors.
Marwa’s application to join in the suit as an interested party was granted by the SC, which gave him leave to appeal the decision.
still in need of some information? search this site:
LOVE THE ARTICLE ABOVE?
Receive Updates: subscribe to Imo Herald in a reader or sign up for Free Email Updates
No comments:
Post a Comment