INDEPENDENT EDITORIAL: Obi`s Reinstatement: Matters Arising

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INDEPENDENT

Obi’s Reinstatement: Matters Arising

 

June 17th, 2007

By Olusola Balogun, Snr. Correspondent

Chief Adeniyi Akintola, SAN, succinctly captured the mood of the nation on Thursday when in reaction to the ruling of the Supreme Court that reinstated Governor Gregory Peter Obi of Anambra State said: “It is obvious that the judiciary had been the star of this democratic experiment. We have at the apex court a bunch of men of impeccable character who are determined to entrench constitutional democracy in Nigeria. Today remains one of the happiest days of my live…’’

A lot of people have good reasons to shower encomiums on the judiciary. This arm of government has obviously emerged as the star of this democratic experience. It has consistently churned out landmark judgments that had helped in stabilising the polity.

The Judgment

Thursday’s judgment was another of such. In an unanimous decision, the Supreme Court had ruled that: “The office of the governor of Anambra was not vacant as at the time elections were held in April”. According to the lead judgment, delivered by Justice Iyorgher Katsina-Alu, the incontrovertible fact that Obi took his oath on March 17, 2006 made it abundantly clear by provisions of Section 180 (1) of the 1999 Constitution that his tenure could only come to an end on March 17, 2010. Section 180 (1) of the 1999 Constitution reads: “Subject to the provisions of this Constitution, a person shall hold the office of governor of a state until: (2) Subject to the provisions of sub-section (1) of this section, the governor shall vacate his office at the expiration of a period of four years commencing from the date when– in the case of a person first elected into office as governor under this constitution, he took the oath of allegiance and oath of office.”

Justice Katsina-Alu berated the Independent National Electoral Commission (INEC) for conducting the governorship election in Anambra State when it was apparent that Obi’s tenure had not expired. “By the provisions of Section 180 (2) of the 1999 Constitution, a governor is entitled to a four-year tenure of office from the date he was sworn in. It was conceded by all parties that the appellant (Obi) took the said oath on March 17, 2006, it therefore follows that his tenure cannot be said to have expired by May 29, 2007.”

The apex court added: “It is wrong of the Independent National Electoral Commission (INEC) to have conducted an election into an office that could not be said to be vacant, moreso when the issue of vacancy of the said office is the subject matter of a suit pending before a court of law.’’ Katsina-Alu consequently declared that the tenure of office of the appellant as governor has not expired, that the appellant’s (Obi’s) tenure as Governor would not expire until March 17, 2010; that the appellant should return to office immediately and that the fifth respondent (Andy Uba) should vacate the said office.

Resilient Obi had asked an Enugu Federal High Court to give an order that his tenure should be extended because he assumed office on March 17, 2006 when he ought to have assumed the office on May 29, 2003. He had argued that Dr. Chris Ngige was wrongfully declared the winner of the 2003 governorship election in Anambra State by the INEC. He lost the case at the court. His appeal to the Court of Appeal, Enugu Division was also dismissed on alleged ground that it lacked the jurisdiction to entertain the case.

Dissatisfied, Obi appealed to the Supreme Court with his counsel, Chief Onyechi Ikpeazu (SAN), contending that the issue was a novelty in the country’s jurisprudence. He raised the following issues for the apex court’s determination: (a) Whether the learned Justices of the Court of Appeal were correct when they upheld the decision of the Federal High Court declining jurisdiction and held that the prayers in the appellant’s originating summons were election tribunal; and (b) Whether having regard to the proper appreciation of the appellant’s prayers in the originating summons, the Court of Appeal was right in not invoking the powers under Section 16 of the Court of Appeal Act. Arguing the appeal at the Supreme Court, Ikpeazu said that the case was proper and that the Supreme Court could decide on the merit without referring it back to the Court of Appeal. He urged the court to allow the appeal.

Reactions

Legal luminaries expectedly hailed the Supreme Court’s judgment. President of the Nigerian Bar Association (NBA), Olisa Agbakoba, SAN, said it was an absolutely fantastic news for anybody who is from Anambra and all Nigerians because the result of the last elections leaves much to be desired. Agbakoba, who is an indigene of Anambra State, said the decision of the Supreme Court has further strengthened democracy in the country, adding that people would now begin to believe that the courts could deliver justice. “I was expecting something like this to happen and I hope more will happen because we need to clean the rigging that took place under the so-called elections for Nigerians to begin to regain the confidence that they should have in the process,” he said.

President of the West African Bar Association (WABA), Femi Falana said that when the Court of Appeal and the INEC chairman, Prof. Maurice Iwu, gave the Certificate of Return to Obi which was backdated April 19, 2003, he condemned the action and pointed out that it was fraudulent. He had said then that Obi’s tenure commenced the day he was sworn into office as it was very ridiculous in the eye of the law to expect the loser of a governorship election to spend about three years in office, while the winner of the said election will spend just a year.

“It was absolutely illogical to ask a man who won an election to complete the tenure of another man who did not win, and which had been declared illegal. Now that the Supreme Court has properly interpreted Section 180 sub section 2, a strong case has once again been made for the review of the Electoral Act and the Constitution towards ensuring that election petition cases are determined and concluded before the inauguration of a new administration’’

Human rights lawyer, Bamidele Aturu, described the judgment as a victory for democracy, adding that the latest decision has sounded the death knell to those who make it a profession to rig election and play all sorts of dirty tricks to prolong cases at the tribunal. “I received with great joy the news that the Supreme Court has decided that Obi should complete his tenure that was caused by delay at the elections tribunal. This is good news for our democracy as those who make election rigging a profession and play all sorts of dirty tricks to prolong cases at the tribunal willnow learn from this.

“The latest decision has sounded the death knell of such inglorious practice. Secondly, this would helping us to stagger our future elections as I can see at least the Oyo State case going the same way. Even if the two states are the only states that would hold their governorship elections on separate days, it would take some burden off the umpire logistically. I welcome the decision on the ground that it is equitable. No electoral thief should be allowed to profit from his or her wrongdoings. This decision would also put an end to the illegal impeachments that we witnessed when Olusegun Obasanjo was president. The legislature should busy themselves with law making and not with the illegal removal of governors. It is another great day for our democracy. God bless Nigeria”.

Fallouts

Staggered Polls

The first fallout of the judgment will be that the election to fill the position of governor in Anambra will not come until 2010. The Supreme court said that much in its ruling when Justice Katsina-Alu declared that the tenure of Obi as Anambra governor would not expire until March 17, 2010. The implication is that INEC could only conduct election in the state in 2010, while his other colleagues would have there office renewed in 2011. That will permanently be the lot of all governors in Anambra, who will always inherit the state House of Assembly. Therefore, state assembly members will be elected at different times from the governor.

The ruling, according to Falana, also has implications on the ongoing governorship election tribunals. He said all those candidates who successfully reverse the injustice done against them would also not leave office the same time others are quitting. “This case has implications on the ongoing tribunals; if any of those governors parading themselves around now loses, it means the person who takes over from them will spend four years from the time he is sworn in. If they used eight months to get justice, they will be in office eight months longer than the others, and that means we won’t be having governorship elections at the same time in Nigeria again. That is what it should be in a true federalism.”

Uba Was Never Elected

Another fallout of the judgment was that there was no governorship election in Anambra State on April 14, 2007 and Andy Uba was never a governor in the state. In fact the Supreme Court judges berated INEC for going ahead with the governorship elections in the state despite the pendency of the case. It added that INEC took a “serious risk” and gamble when it conducted the governorship elections in Anambra State. The court held that INEC’s actions were defiant, daring and capable of sending a wrong signal that once an action was done, it could not be reversed. Justice Oguntade came hard on INEC by describing the conduct of the election as a “subversion of the constitution”, which should not stand because the world is watching closely how the country is operating its democracy. Katsina-Alu said that the commission was set up by the constitution, INEC would have followed the spirit and letters of the same constitution to guide its actions.

Speed Of Enforcement

President Umaru Yar’Adau also drew applause from a wide spectrum of Nigerians when he ordered an immediate enforcement of the decision. Yar‘Adua directed the Inspector-General of Police (IGP), Mike Okiro, and the Solicitor-General of the Federation, Prof. Ignatius Ayua (SAN), to enforce the Supreme Court judgment on the governorship position in the state. A statement by Yar’Adua’s special adviser on media, Segun Adeniyi, said that the President would always respect and uphold the rule of law. The statement reads: “President Yar‘Adua has noted today‘s (Thursday’s) declaration by the Supreme Court that Mr. Peter Obi remains the substantive Governor of Anambra State, as well as its order that Dr. Andy Uba should vacate the office immediately. The President has thus directed the solicitor-general of the federation and the IGP to facilitate the implementation of the judgment as soon as they are served a copy. Yar’Adua affirms the determination of his administration to uphold the rule of law in his resolve to reposition Nigeria for peace and prosperity.”

Yar’Adau’s position is a clear departure to the repeated practice during the reign of Obasanjo. The former governor of Katsina State displayed that he will be a respecter of the law when he ordered an instant enforcement of the ruling. A lawyer, Bisi Adegbuyi, while commending the President said: “If this had happened three months ago, Uba will go to the Supreme Court today seeking an interpretation if the ruling, while the attorney-general of the federation would have asked the police to wait for the interpretation.’’ Indeed, such a scenario occured in Oyo State when the police command waited for an order from Justice Iyabo Yerima asking it to stay execution even after the Supreme Court had ruled that former Governor Rashidi Ladoja be reinstated as the governor of the state.

State Election Tribunal

The governorship election tribunal in that state may be the first to wind up. As at today there are about three cases at the election petition tribunals challenging Uba’s election as governor based on the April 14, polls. Now, that the Supreme Court has nullified the election, then the petitions will automatically lapse, while the elections tribunal in Anambra State will have less work to do. The members will only concern themselves with petitions arising from the state House of Assembly elections.

Ekiti Option In Anambra?

Another implication is that Obi will have to work with a new legislature comprising of people elected alongside Andy Uba on April 14, 2007. And these are mostly Peoples Democratic Party (PDP) members who are Uba’s loyalists.

In a situation where the PDP dominated House refuses to co-operate with Obi and then invokes its powers under Section 188 of the Constitution to impeach Obi following due process. Then, the mandate would to fall on Etiaba who is Obi’s deputy and All Progressive Grand Alliance (APGA)’s governorship candidate in the last election. Since it will still be the legal right of Etiaba to choose who her deputy will be in case of Obi’s impeachment, then one can say that APGA will still be in control of the executive arm and that this route cannot be used to smuggle in Uba into the governorship seat. But the legislators may take the ‘Ekiti option’ in which the House in one proceeding impeached both the governor and his deputy, thereby paving the way for the Speaker to act as governor. This will be in line with Section190 (2) of the constitution. If this happens in the aftermath of Obi’s legal victory, then the PDP seizes power by other means than through the polls.

Adopting the ‘Ekiti option’ will automatically activate the provision of Section 190 (2) of the constitution, which states that there will be a fresh election to elect a new governor. In which case, Uba might not have to wait for too long to have another shot at the governorship position.

Resilience Pays

Another fallout of the judgment is that resilience pays. The governor displayed uncommon resilience worthy of emulation. Against all hope, he retrieved his mandate from the jaws of the Dracula. He refused to be daunted by the initial obstacles placed before him.

Obi who had gone to court to ask that he should be allowed to continue in office after May 29, because he was denied the opportunity to take his seat for three years when Ngige of the PDP was sworn-in in his stead. Initially, the appellate court refused his prayers, but he was undeterred as he proceeded to the apex court complaining that an injustice has been done to him. The judgment, apart from opening a new vista in the annals of Nigeria’s legal history has again brought to the fore the resilience of the governor.

The latest victory was not his first. He had also successfully reclaimed his seat in February after members of the state House of Assembly had illegally ousted him. During that episode, Justice J.O. Bada had led other judges of the appellate court sitting in Enugu to rule that Obi be immediately reinstated as the governor of Anambra State.

In the unanimous judgement, the court stated that there was no where in the counter affidavit where the Speaker of Anambra State House of Assembly disposed that Obi was properly served with notice of gross misconduct and quoted relevant sections in the constitution that guarantees everyone the right of fair hearing. Adding that; “In view of the foregoing exhibits 5, 7and 8 are hereby returned against the appellant and the case dismissed. This hereby confirms the judgment of the Anambra High Court. Consequently I uphold the judgment of the lower court that the removal of Peter Obi by the appellant (House of Assembly) is unconstitutional, null and void and of no effect whatsoever. The removal of Peter Obi by the appellant is hereby set aside”, Bada said.

Bada further added that Obi should be reinstated immediately and his rights restored by the appropriate authority, including the police and in order to promote reconciliation between the appellant and the respondent (Obi), Justice Bada awarded no cost.

Another of the appellate judge, Justice Denton-West Sotoye, expressed her concern that the rule of law should be upheld always so that the courts would no longer be subject to ridicule. He insisted that true allegiance and the defence of the constitution by Nigerian and all stakeholders including the executive legislature and the judiciary towards the progress and defence of the constitution should also be strictly adhered to.

Earlier before that ,he had battled successfully, to dislodge PDP’s Ngige from the position of the governor. However, that battle took close to three years before he could get justice. This is why the apex court is asking that he be allowed to spend his four years tenure as stipulated by the 1999 Constitution of the Federal Republic of Nigeria. Obviously, Obi has again assisted in enriching Nigerians legal lexicon.

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