THIS DAY

Re-run Elections: Tenure Extension for Govs ‘Illegal’

•Top lawyers differ on ‘Peter Obi Scenario’
By Davidson Iriekpen, 07.28.2008

Prominent lawyers in the country have sharply disagreed over the interpretation of the Supreme Court judgment concerning the tenure of office of a state governor and the provision of Section 180 (1) of the 1999 Constitution.
This is against the backdrop of recent developments whereby governors whose elections were voided by election tribunals are presumed to have bagged additional year or more in office with their victories in the re-run polls.
In Peter Obi versus Independent National Electoral Commission (INEC), the Supreme Court had interpreted that Obi's four-year tenure started on March 17, 2006 when he took oath of office after spending nearly three years on post-election litigation.
Since then and taking a cue from Obi’s case, governors whose elections were voided and re-run elections conducted now seemingly have different tenures from other governors following their victories in the re-run polls.
This is based on the interpretation that tenure starts from the day of swearing-in, even though those governors had already been sworn in before their elections were nullified, unlike Obi who had not been sworn in at all as Dr. Chris Ngige ruled Anambra State from 2003 to 2006.
The governors in this category at present included Idris Ibrahim (Kogi), Aliyu Wamakko (Sokoto), Murtala Nyako (Adamawa) and Timpreye Sylva (Bayelsa).
Section 180 (1) of the constitution states that "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 (a) 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; (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 oath."
But prominent legal practitioners whom THISDAY spoke with offered divergent views on the development.
The President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba (SAN), said it would be wrong for the governors to remain in office beyond 2011, lamenting that it was one of the unfortunate things in the political system that the Electoral Reform Panel was trying to address.
"It is very wrong for them to remain in office beyond 2011. I don't see how the people who benefited from fraudulent conduct should be a beneficiary of such a conduct,” he said.
Speaking in the same vein, former NBA President, Chief Wole Olanipekun (SAN), described the tenure extension for the governors as "unconstitutional, illegal, illogical, debasing and humiliating to the constitution”.
"Our electoral laws should be reformed to reflect the fact that even if an election is conducted twice or more during a tenure, the political office holder must spend only four years. It is not too good for our system and my opinion is that our electoral law should be reformed to state the fact that a political office holder will spend only four years whether re-run election or no re-run election.
"The Electoral Act should be reformed in such a way that it would specifically state that oath of office should be taken only once in a tenure of office. Even when such scenario painted above occurs, the law should be that oath of office should not be taken twice in a term of office. If any public office holder's election is nullified and another election is held and the person wins, he should just continue from where he stops and not that another oath of office should be taken. Taking oath of office twice in a tenure is an abuse and our law should specifically state so," he said.
But constitutional lawyer, Prof. Itse Sagay (SAN), clearly differed in his view. According to him, once an election is nullified and a re-run conducted, the winner, if he was the one there before, automatically starts another term.
"We cannot change the law now. It is a principle laid down by the Supreme Court. If an election is nullified, it means it never took place in the first instance. Anybody sworn in automatically starts another tenure," he said.
Corroborating Sagay’s view, Mr.Tayo Oyetibo (SAN), said since the first victory was nullified by the appellate court, it meant that it was not an election in the eyes of the law, adding that the implication is that the governors' term will begin to run when he is validly elected.
Another constitutional lawyer, Mr. Ken Ikonne, said if the path of morality was to be followed, the governors do not deserve a fresh four-year term but three, but added that since the position of the constitution is that governors’ tenure must run from when they are sworn in, it should be adhered to.
He said: "If we are to follow the path of morality, the governors do not deserve another four years but since this is position of the law, we do not have the powers to question it."
However, Lagos-based lawyer, Mr. Festus Keyamo, offered what appeared like a middle of the road position.
He said if the letters of the constitution supported a four-year term beginning from the fresh oath of office, then the spirit of the constitution does support the same person spending far more than four years all inside one term
He said: "Regarding the governors who are being re-elected and sworn in afresh after the nullification of their elections, the law as it is now, in the case of Obi vs INEC which states clearly that the four years of a governor will begin to count from the day he takes his oath office.
"However, the slight difference in Obi's case with regard to the fact of the case is that unlike Obi who took over from Chris Ngige, the new governors are continuing from where they left us even though with a fresh oath of office. The crucial question here is this: Even though the letters of the constitution support a four-year term beginning from the fresh oath of office, does the spirit of the constitution support the same person spending far more than four years all inside one term?”
Human rights lawyer, Chief Gani Fawehinmi (SAN), though did not affirm his position, said until the apex court interprets its judgment in the Peter Obi vs INEC case, by virtue of the new oath of office the governors took, they are entitled to another four-year term.
"This is the danger in the system. Though I am not affirmative, but from what is on the ground, until the apex court interprets its judgment in the Peter Obi vs INEC case, for now, by virtue of the new oath of office the governors took, they are entitled to another four-year term," he said.
But President of the West African Bar Association (WABA), Mr. Femi Falana, also argued along the lines of Agbakoba and Olanipekun.
He said the constitution never envisaged that a governor would take oath of office twice or thrice, stating that giving the governor an extra year would mean rewarding a beneficiary of a fraudulent election with an extra year or two.
Falana said it would be wrong to reward a candidate who colluded with INEC to rig election to have a re-run when they should have been banned from further polluting the electoral process.
Comparing the case of former Oyo State Governor Rashidi Ladoja vs INEC, the human rights lawyer said the Supreme Court did not grant Ladoja's tenure extension request because the court found out that for the 11 months that he was out of power through impeachment, he later collected salaries and allowances.
He argued that the same thing was applicable to the four governors mentioned earlier, saying the governors did not only collect salaries and allowances and awarded contracts during the period but took important decisions affecting their states which could not be said not to have been taken.
"The constitution never envisaged that a governor will take oath of office twice or thrice. And it would be a complete anomaly to reward a criminal suspect or a beneficiary of a fraudulent election which has been annulled with an extra year or two.
"In other words, if a candidate who colluded with INEC to rig election is allowed to have a re-run when in the first place he should have been banned from further polluting the electoral process,” he said.
Pro-democracy activist and human rights lawyer, Mr. Bamidele Aturu, said regardless of the reasons for the nullification of their elections, it was not right to have an absolute prescription that governors who are being re-sworn in owing to nullifications of their earlier elections should be made to serve out a fresh four-year term.
"My candid view is that we need to distinguish between acts of corrupt practice traceable only to INEC and those in respect of which the ‘victorious’ candidate and or his party were culpable. In the latter case, I believe that the re-sworn governors should only serve out the remainder of the first term. This is because a well known legal maxim is that a person cannot benefit or profit from his wrong. To do otherwise would be unconscionable and would really be contrary to public policy,” he said.
Another lawyer, Dr. Sam Amadi, said since the governors' elections were invalidated, they were never governors in the first place, adding that the legal implications of this is that "they were not elected and as such their swearing-in was invalid".
Amadi added that what was valid were their actions, which he described as "the doctrine of necessity" which tries to validate the actions of the governors even though their mandates were invalid.