Yesterday, a full panel of the Supreme Court led by the Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher delivered a unanimous judgment on the contentious issue of tenure elongation. In its verdict, the apex court ruled against tenure elongation. By this verdict, the governors of Sokoto, Adamawa, Kogi, Bayelsa and Cross River State are to vacate office immediately, as the Speakers of their respective State Houses of Assembly are to be sworn in as Acting governors pending when the Independent National Electoral Commission (INEC) organizes fresh elections as stipulated by the Electoral Act 2010 as amended, CHUKS OHUEGBE, writes.
In the lead judgment delivered by Justice Walter Onnoghen (JSC) he had rationalized the verdict of the Supreme Court thus; “The oath they took in 2007 remain valid. To accede to the request of the Respondents (Governors) is to bring uncertainty to the Constitution. It is to continue the cycle of impunity”.
This view of Justice Onnoghen (JSC) was corroborated by his brother justices Mahmud Mukthar, Chukwuma Ene, Ibrahim Coomasie, Olufunlola Adekeye and Mary Peter-Odili.
THE BUILD-UP
The bone of contention was the interpretation of the provisions of Section 180 (2) of the 1999 Constitution as amended, which deals with the tenure of the office of a governor.
The sub-section stipulates thus; ‘Subject to the provisions of sub-section (1) of this section, the Governor shall vacate office at the expiration of a period of four years commencing from the date when –
• In the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and the Oath of office; and
•? 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.
It should be noted that the five governors viz; Admiral Murtala Nyako (Adamawa), Senator Liyel Imoke (Cross River), Chief Timipre Sylva (Bayelsa), Alhaji Aliyu Magatakarda Wamako (Sokoto) and Alhaji Ibrahim Wada (kogi) who were the Respondents in this case had obtained judgment from the lower courts to the effect that their respective tenures started running when they took the second oath of office consequent upon disposing their respective cases before the various Election tribunals.
The former military governor of Lagos state and the governorship candidate of the Congress for Progressive Change (CPC), Brigadier- General Mohammed Buba Marwa (retd) had gone to the Supreme Court to appeal the Court of Appeal ruling on tenure extension, had sought for and was granted leave by the court to be joined as an interested party in the matter.
To ensure that it is properly guided, the Supreme Court invited three eminent jurists as amicus curiae (friends of the court) to advise it on the merits of the appeal before it.
They are Second Republic Minister of Justice and Attorney-General of the Federation, Chief Richard Akinjide (SAN), Olukonyisola Ajayi, (SAN) and Professor Itse Sagay (SAN). The views of the amicus curiae however, differed.
Chief Akinjide (SAN) had submitted that the earlier oaths cannot be the starting point in the calculation of the four (4) years term of office, but the later oaths taken in 2008 following a re-run election and that sub-section 2A of the Section 180 of the 1999 Constitution as amended does not apply as it has no retrospective effect. He had urged the court to determine the appeal accordingly.
On his part, Ajayi (SAN), referred to Section 180 (1) and (2) and submitted that the constitution focuses on a date, not on oath of office; that on 29th of May, 2007 the 1st Respondent took the oath of Allegiance and of Office; that the constitution does not talk of nullification of an election or oath. The learned senior counsel also submitted that the governor has no vested rights as he is a trustee of the people of the state.
For Prof Sagay, tenure elongation is an aberration arising from the long time taken to dispose of election petition matters and urged the court to hold that no tenure can exceed four (4) years regardless of a re-run election.
THE VERDICT
The apex court’s ruling yesterday was unambiguous. Their Lordships declared unequivocally that the 1999 Constitution ‘has no room for self sucession for a cumulative tenure exceeding eight years. The fact that there was an election in 2007 as a result of which the 1st respondents (governors) took their oath of Allegiance and of Office are facts which cannot be wished away, just as the acts they performed while occupying the seat.
‘It is settled law that the time fixed by the constitution for the doing of 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 29th, 2007 when they took the first oaths is to extend the four years tenure constitutionally granted 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’.
WHAT NEXT?
Though the Supreme Court judgment failed to give consequential order, the immediate effect however, is that the affected governors should vacate offices immediately to allow for the swearing in of the Speakers of the respective Sstate Houses of Assembly by the Chief Judge of the state.
With the declaration by the apex court that the tenure of the affected governors ended on the 28th of May, 2011, the picture is not quite clear what happens in a state like kogi state, where an election had been conducted by the Independent National Electoral Commission (INEC) and a winner had emerged. The ensuing confusion is:
Legitimately, who should be sworn in, is the Captain Idris Wada (Retd), who won the election to replace former governor Ibrahim Idris?. Or, the Speaker of the state House of Assembly that is recognized by the section 191(2) of the 1999 Constitution as amended?
The scenario that is playing out in Bayelsa state is also interesting. If the tenure of former governor Timipre Sylva ended on May 29, 2011, what is the validity of the primaries the Peoples’ Democratic Party (PDP) conducted in the state that threw up Hon. Seriake Dickson? Will the political parties conduct fresh primaries? What is the fate of earlier primaries conducted by the party that were cancelled, which their winners are in court seeking for re-validation?
CONCLUSION.
The import of the Supreme Court judgment is that besides laying to rest the issue of tenure elongation, it has firmed up the provisions of the Electoral Act 2010 as amended as to the period for the disposition of cases before the Election tribunals.