From GODWIN TSA, Abuja
Saturday January 28, 2012
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Photo: Sun News Publishing |
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The affected governors are Ibrahim Idris (Kogi), Murtala Nyako (Adamawa), Timipre Sylva (Bayelsa), Aliyu Wamakko (Sokoto) and Liyel Imoke (Cross River), whose tenure were earlier extended by a Federal High Court and the Court of Appeal beyond May 29, 2011.
The apex court, in a unanimous decision, held that election of the governors was annulled by the tribunal and not their oath of office and therefore, they have a tenure of four years from the time they took the first oath of office.
Justice Walter Onoghen, who read the lead judgment of the court, said the 1999 Constitution does not recognise a governor staying in office beyond four years.
He further held that the framers of the constitution did not envisage a re-run election, stating that no person elected under the 1999 Constitution can remain in office beyond the time provided by it.
The court also held that the 1999 Constitution did not envisage nullification, adding that even if the first election was annulled it cannot affect the oath of office and allegiance taken.
He further held that the acts of the governors, under the first election, could not be valid while the oath they took would be invalid.
According to Justice Onoghen, “generally speaking, a void act is void and nothing can be put on it. However, when you consider the nature and consequences of an election, which produced a winner, who was sworn in on the presumption that the election that produced him was regular and legally valid, then when that election is set aside or nullified, the nullification is only limited to the election and does not affect acts done while the person occupied that office.
In effect, what it all means is that the election that was later nullified was only voidable, not void, because if it is to be taken literally as void ab initio as being contended by some of the parties, it means the country would be plunged into chaos as all acts done by the governors must, of necessity, be null and void and of no effect whatsoever.
“So, when we have a situation, where the acts of the governor, whose election is nullified, are saved, then only legal explanation or meaning to be attached to the use of the words ‘null and void’ in describing the said election by the court, is ‘voidable’ ab initio.
“It is therefore, my considered view that what the lower court meant by saying that the elections were null and void is simply that they were voidable as a result of which they proceeded to annul same.
“I hold the considered view that since the acts performed during the period to the nullification of the election remains valid and subsisting and the same person contested and won the re-run election, thereby taking another set of oaths and since what was nullified was the election, the oaths they took on May 29, 2007 remains valid and the starting point in calculating their four years tenure of office as governors of their respective states, particularly as the 1999 constitution does not envisage a tenure exceeding four years by the same person who took the first oaths following the election which kick started the tenure.
“To accede to the argument of the respondents is to bring uncertainty into the clear provisions of section 180 (2) of the 1999 constitution, which will render the tenure of governors indefinite as what it will take an elected governor whose election is nullified to remain in office almost indefinitely or for life is to continue to win the re-run elections, which would then be nullified to continue the cycle of impunity.
“I hold the considered view that to uphold the validity of the acts of the governors in office, prior to the nullification of their election and reject the period they spent in office, during which time they performed those acts in the determination of the period of their tenure, is contrary to common sense and the clear intention of the framers of the constitution.
“The fact that there was an election in 2007 as a result of which the 1st respondents (governors) took their oaths of allegiance and of office are facts, which cannot be wished away, just as the acts they performed while occupying the seat. The said governors may not have been de jure governors following the nullification of their elections, which is not supported by the acceptance of their acts in that office as legal and binding on all and sundry, they were certainly governors de facto during the period they operated ostensibly in accordance with the provisions of the constitution and Electoral Act and as such the period they operated has to be taken into consideration in determining the terminal date of their tenure following, what I may call, their second missionary journey, vide a re-run election, particularly, as the constitution unequivocally grants a tenure of four years to a person elected governor of a state calculated from the date he took the oaths of allegiance and of office, which was May 29, 2007.
“It is settled in law that the time fixed by the constitution for doing anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states. To calculate the tenure of office of the governors from the date of their second oaths of allegiance and of office while ignoring the period from May 29, 2007, when they took the first oaths, is to extend the four years tenure constitutionally granted the governors to occupy and act in that office, which would be unconstitutional. It is therefore, clear and I hereby hold that the second oaths of allegiance and of office taken in 2008, though necessary to enable them continue to function in that office, were clearly superfluous in the determination of the four years tenure under section 180 (2) of the 1999 constitution.”
With the decision of the apex court, Speaker, Bayelsa State House of Assembly, Hon Nestor Binabo, has been sworn in as acting governor. Also, Hon James Barka, Speaker, Adamawa State House of Assembly, has taken oath of office as acting governor. In Cross River State, Hon Larry Odey, Speaker of the state House of Assembly is acting governor. Alhaji Lawal Zayyanu, Sokoto State House of Assembly Speaker is acting governor of the state.
In Kogi State, the governor-elect and member of the PDP, Capt Idris Wada, who emerged victorious in governorship election held last November, has been sworn in.
Meanwhile, mixed reactions have started trailing the judgment of the apex court among lawyers and politicians.
Reacting to the judgment, constitutional lawyer and writer, Sabastine Hon, said: “Personally, I believe the Supreme Court may have to revisit that decision someday. It was the same Supreme Court that held in 2009, in the case of Labour Party Vs INEC, that when an election is annulled and a re-run ordered, both the election and the oath are gone. In this case, the original oath the governors had taken ceased to exist when they went in for elections and subsequently took fresh oath of office. There cannot be two oaths in one tenure. But since the Supreme Court is the conscience of the nation, which has jurisprudential powers to give even policy decisions, we are bound by this very decision. Any contrary opinion we hold is merely academic in nature.”
On his part, Jibrin Isah, in a statement by his consultant on public communication and strategy, Phrank Shaibu, described the Supreme Court ruling as a “cast-iron victory for truth and a clear-cut expression of the electoral wishes of the Kogi people and Nigerians.
“I congratulate all the justices on their courage and honesty, which are the pillars and hallmarks of the rule of law. I am proud of the courageous judgment. Truth and electoral wishes of the people have finally triumphed. As for the judiciary, it remains the last bastion of hope for the common man and custodian of the Rule of Law. We give kudos to our modern day Daniels. We are set for fresh elections, as may be ordered within 90 days. This has indeed, strengthened our position as the authentic and validly nominated candidate of the Peoples Democratic Party (PDP).
The Independent National Electoral Commission (INEC) had approached the apex court to challenge the decision of the Court of Appeal, which upheld the decision of a Federal High Court sitting in Abuja that had earlier elongated the tenure of five governors.
A full panel of the Supreme Court had, on November 21, heard the argument of all counsel in the suit alongside three amicus curia invited to address it on the issue. The apex court had invited the trio of Chief Richard Akinjide, Professor Itse Sagay and Chief G.O.K Ajayi, all Senior Advocates of Nigeria (SAN) to address it on the matter.
While Akinjide advised the apex court to uphold the decision of the lower court, the duo of Sagay and Ajayi urged it to reverse the decision.
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