From Emeka Oraetoka, Abuja
As of noon, the President Elect officially becomes the President regardless of whether he or she is officially sworn in or not. This information comes from the 20th Amendment to the Constitution of the United States as follows: “The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”- Buttressing Supreme Court position that tenure is as fixed as Rock of Gilbraltar.
Since the January 27, 2012 ruling of the Supreme Court terminating the tenure of five state governors many have applauded it, saying that it has vindicated their position, that the continued stay in office of these governors offended the spirit of the Constitution as it did not grant them tenure elongation. Every right thinking Nigerian knows that the Constitution of Nigeria granted four year tenure for the, President, Governors, National Assembly as well as the State Assembly Members; however, the President and State Governors could go for second term of Four years in office.
Yes, the Apex Court ruling on tenure elongation was right; but only in the context that it has reviewed its judgment on Peter Obi’s tenure in Anambra State; otherwise the vexed issue of tenure elongation has not been settled. Before now, the reason the position of the High Court and the Appeal on the tenure of the five governors was right was purely in deference to subsisting Apex Court judgment on Obi’s tenure. Now, has it not become clear to those who felt that the Apex Court was right in Obi’s case that the Court was actually in error with the latest judicial review? It should be understood that the grounds the High Court and Appeal sustained the tenure of the five governors before Apex Court ruling were that: even though the Constitution was amended by NASS, to recognize the period spent in office by the incumbent if he wins re-run election, it however, cannot take effect retroactively. The second ground was that once an election is nullified, the oaths taken by the governors stands nullified. The Apex Court told Peter Obi in 2007 that his tenure started that the day he took oath of office and ordered Andy Ubah to vacate office immediately; is it not on the account of this that the High Court and Appeal ruled in favour of the five governors? Clearly, the Supreme Court decision to rule against Appeal Court on January 27, 2012 on the tenure of the five governors is judicial review of the blunder it committed in 2007 in the so-called case between Peter Obi Vs INEC. It should be noted that when Apex Court ruled on Obi’s tenure in Anambra State, it had no jurisdiction over the case.
PERSPECTIVES IN TENURE ELONGATION
What actually is tenure elongation from the point of view of election in Nigeria? Painfully, many Nigerians think that tenure elongation occurs when a sitting governor stayed beyond two [2] terms in office in case of re-election only. Another perspective to tenure elongation is a situation where a tenure that is constitutionally meant to end in four [4] years, now drags beyond the allotted period. For instance, a tenure that started in 2003 in Anambra State ended in 2010. The implication is that we had seven [7] years as tenure in the State, instead of four years.
When Supreme Court suspended the Constitution of the Federal Republic of Nigeria with that judgment that removed a democratically elected governor, Andy Ubah in 2007 on the basis that Peter Obi had not exhausted his tenure, many hailed the judgment as sound and good for our democracy. Those who felt that the Apex Court was right in its ruling failed to see that a tenure that started in 2003 ended in 2010 in Anambra State. Clearly, tenure elongation, if it exists, started in Anambra State with Peter Obi. Those who argue that Peter Obi’s case in 2007 is different from that of the five governors forgot that the issue in question remains the oath of office and allegiance. The Apex Court told Peter Obi in 2007 that the day he took oath of office, was the when his tenure started and ordered Andy Ubah to vacate office immediately. If fresh oath is not the reason for tenure elongation, what then is?
TENURE OF OFFICE IS CONSTITUTIONALY PROVIDED AND INDEPENDENT OF WHOMEVER/WHATEVER.
In support of INDEPENDENT nature of TENURE, hear Mr. Justice MANNING, of the supreme court of Michigan, in Carleton v. People, 10 Mich. 259: ‘Where there is no office there can be no officer de facto, for the reason that there can be none de jure. The county office existed by virtue of the constitution the moment the new county was organized. No act of legislation was necessary for that purpose. And all that is required when there is an office to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact.’
The period between 2003 and 2007 in Plateau and Ekiti States provided clear prove that Tenure of office as provided for in the Constitution is totally Independent. It could be recalled that arising from delicate security situation in these States, the then President declared state of emergency in both states at different times. The declared emergencies meant that Administrators had to take charge in these states. After six [6] months of General Christ Ali’s administration in Plateau State, Joshua Dariye returned to his seat as the governor. The same scenario played out in Ekiti State, where General Olurin held forth. Regardless of the periods these de-facto Administrators stayed in office, governorship election took place in these states in 2007. The fact in Plateau and Ekiti clearly showed that Tenure of Office is INDEPENDENT of whomever or whatever party is involved. The argument by uninformed fellows that if another party or person takes over from the incumbent, his tenure starts from the day he takes oath of office, is not justified here. The administrators in Plateau and Ekiti were clearly not from PDP and the six [6] months they stayed in office should have been recouped by the democratically elected governors in the states in question, but because the independent nature of TENURE is constitutionally sacrosanct, it has to be respected.
WHY THE ACTING GOVERNORS ARE TO SERVE OUT THE FOUR [4] YEARS TERM FROM 29TH MAY 2011.
The Supreme Court ruling on the tenure of the five [5] sacked governors specifically stated that their tenure ended in May 28 2011. And since elections into their offices did not take place as Constitutionally required, should elections now take place in these states eight [8], good months after it should have taken place? The answer is emphatic no. What happens to those eight months if PDP or any other party wins considering the fact that Apex Court ruling clearly indicated that a TERM started in these states on May 29, 2011? If a TERM is as fixed as rock of Gibraltar as the Apex Court ruled, can it be moved by any legal bulldozer? The answer here is capital NO! It therefore follows that every May 29 after four years remains sacrosanct as far as election into the office of the executive governor is concerned.
Since the Constitution of Federal Republic of Nigeria captured only fixed elections and the time frame within which these elections must take place, no election can take place to the office of the governor in the affected places until 2015. It is only in the case of Assemblies elections that bye-election can take place as anticipated in the Constitution. Fresh governorship election can however take place when there is nullification. Any Presidential or Governorship elections that take place outside the election time table or order than arising from nullification, as recognized by the Constitution after a political decision, is unconstitutional, null and void. As the Constitution did not recognize any other election outside election date election to the office of governor, the APEX COURT RULING MEANT THAT SPEAKERS OF THE AFFECTED STATE HOUSES OF ASSEMBLIES MUST SERVE OUT THE REMAINING YEARS OF THE FOUR YEAR TENURE. If an office becomes vacant or election fails to take place for either Presidential or Governorship office, for whatever reasons, before the kick-off of four year tenure, order of succession must be applied to fill the vacant office. Bye-election can only take place for office that has no order of succession. For instance, it is only in Assemblies elections that bye-elections exist.
With Apex Court judgment on the tenures of the Five State Governors, the Five States of the South-West and Edo will have to contend with Speakers as Acting Governors till 2015, when their tenures expire. No Court in Nigeria has the power to alter TENURE date in Nigeria. A political decision on elections in Nigeria was taken in 1999 via the Constitution that brought in democratically elected government for four years, starting from May 29, 1999 when Olusegun Obasanjo was sworn in as the President and the Governors also. Clearly, when political decision of, WHO, WHEN and WHERE have been taken and entrenched in the constitution, no judgment of the Supreme Court can alter it, and this what the Apex Court has realized. For justice sake, nothing stops the Judiciary from coming out with practice direction that will ensure that elections related cases are disposed off before anybody is sworn in. All that is needed here is sound judicial reform and Constitutional amendment. Don’t forget, the “injustice” in Peter Obi’s case was caused by judiciary delay. Whose fault then?
