Kogi Guber : Aphonic Points The Supreme Court Must Resolve
When matters become knotty and inexplicable in a society as it is now in Kogi, it is the judiciary that is resorted to for the interpretation of laws and for resolution of conflicts. In so doing, the court must be very clear, certain, consistent and courageous in its decisions rather than giving an interpretation that is capable of allowing mischief and absurdity to thrive.
However, in Kogi State, it is very sad that in the last 20months or so, some people assumed superiority over the Supreme Court on the interpretation of the constitution and have been fighting, kicking and screaming to ensure that an illegality is upheld even against a fresh additional order of the Supreme Court of Nigeria. Indeed, it is easy to assume that most people in this boat have neither shame nor knowledge about what the Nigerian Constitution says on the rulings of the Apex Court but in reality, what these politicians think is that they have the cheque and crude political contacts to disregard the orders of any Court of law in Nigeria provided that the powers at the centre ignore them or do not have conflicting interest.
Curing the mischief and absurdity foisted on Kogi State once and for all is what is expected from the Supreme Court in the Appeal brought by Jibrin Isa Echocho against INEC challenging the conduct of the election that produced one Captain Idris Wada on the December 3, 2011 during the pendency of INEC’s appeal at the Supreme Court which gave birth to the celebrated judgement of the Supreme Court on the 27th January,2012 sacking the five governors in the tenure elongation case.
The truth of the matter is that the whole issue about the arrival of Wada Idris at the Kogi State Government House is unlawful and the mathematics on his continued stay as Governor does not just tally at all. First, the strategy that took Idris Wada to the Kogi State government house through the back door was not only riddled with holes but reeks of shameful opportunism as well. For emphasis, let’s start with holes in their plot. From the way the judgment of the esteemed justices of the Supreme Court as well as a directive of the Attorney General was disregarded to the manner in which Justice Ibrahim Atadoga, the President, Kogi State Customary Court of Appeal was ordered by the removed Governor Ibrahim Idris to speedily swear in Idris Wada, to how over 200 anti-riot policemen were mobilised to execute the operations, makes it obvious that the Ex-governor, Ibrahim Idris wanted to rule or control the affairs of Kogi State until donkeys grew horns.
It is also important to note that the unending legal tussle in Kogi guber election was orchestrated by the Independent National Electoral Commission which as an institution established by the constitution is ordinarily duty bound to obey and comply with the decision of the Supreme Court. Why INEC chose to obey the Supreme Court judgment in default remains puzzling.
Recall, that it was INEC that went to court and got the judgment that sacked the former governors that included Kogi State and thereby reactivated the earlier Peoples Democratic Party primaries conducted in January 2011 ahead of the May 29 exit date. Echocho had resoundingly won the primaries before INEC postponed the election in five states including Kogi. The action was predicated on a High Court judgment which stated that the governors’ tenure stays beyond May 29th. When the Commission released a new date, PDP went ahead to conduct a fresh primary that produced Wada.
I am of the opinion that, INEC being the appellant in the Appeal between INEC V Alhaji Ibrahim Idris which prayed the Supreme Court to decree and declare that the term of office of the last holder of the office of Governor of Kogi State constitutionally lapsed on May 28, 2011 by virtue of Section 180 (2) of the constitution and which appeal/ reliefs the Supreme Court allowed cannot rightly and in good conscience be allowed to jettison or misinterpret the said judgment and again defeat or rubbish the clear wordings of Section 180(2) and 2(A) of the same constitution.
The Supreme court having ruled that the tenure of the governors had elapsed on May 28, 2011, it remains a question of common sense that by the Supreme court judgment , the September primaries won by Wada had become extinct, a nullity and no longer applies. Since the apex court had declared that the extension of tenure of governors was wrong, any action predicated on the tenure elongation becomes also a nullity. In like manner, the primary held after the expiration of Idris tenure ought not to have been held. And, since there was a primary that was held in January 2011 before Idris went to court to argue that his tenure should be extended, the person who won that primary and had his name submitted to INEC ought to have been sustained.
Again, Prof Jega goofed when he stated that “If you compare the Kogi governorship case with other cases, you will see that they are not the same. When the Supreme Court said tenure has expired in May last year, it is only the speakers that can take over as provided for by the constitution. But the case of Kogi is different. We had done an election and declared a winner in Kogi State. We were waiting for the tenure of the incumbent to end and the Supreme Court ruled that the tenure of the incumbent expired May last year. So, why would you hand over to a speaker when there is already an elected governor in waiting?”.
Indeed, Prof Jega has a point but if he had done his research or consultancy as he said he did with his lawyers, he would have realised that it is not his discretion nor advice that matters on a Supreme Court ruling but what interpretation the court gives to it. Nigeria has a constitution that is not ambiguous so as to allow INEC any interpretation it deems fit. There is no point for Prof Jega to go to extraordinary lengths to try and justify some very questionable statements he has made because it is common place knowledge that the everyday duty of the court is to interpret the meaning of the laws which is usually referred to as the duty of statutory interpretation. It is doubtless that INEC has some accomplishments but it also has lots of failings, its self assigned role in the interpretation of the Supreme Court ruling on Kogi state stands out because its Chairman’s explanation over INEC’s action is laced with inarticulate and unsound reasoning especially on its insistence that the Commission took the right decision in defiance to a court order.
The farce that threw up Wada in my view was further compounded as the primary election he had won was not conducted within the stipulated time allowed by the constitution. Section 178(2) of the 1999 constitution says, ‘elections should be conducted not earlier than 150 days and not later than 30 days before the expiration of the term of office of the last holder of the office’. This is a constitutional provision which cannot be given any other interpretation other than its original meaning. Secondly,INEC purportedly conducted an election to the office of Governor of Kogi state on 3rd Dec.,2011,five days after arguing its appeal (28th November 2011) praying the Supreme Court to decree and declare that the tenure of the last holder of the office of Governor of Kogi State ended on 28th May,2011.
In my considered opinion,lets assume without conceding the appellate court was tangentially right in restricting itself to the purported election that produced Wada on 3rd December 2011,the Supreme Court is duty bound by the Nigerian Constitution and the statutes to let Nigerians and the international community know what section of the constitution or under which provision of the electoral act was the said election conducted. The questions that readily comes to ones mind are: If, by constitutional imperative and a judicial pronouncement of the Apex court,the tenure of the last holder of the office of Governor of Kogi State ended on May 28,2011,was the election conducted after May 28,2011 during the pendency of INEC’s own appeal before the Supreme Court,constitutional? If Wada was actually a Governor-in-waiting after the judgement of the Supreme Court on 27 January,2012,why did the PDP approach the same Court via an application on 1st. February,2012 praying the Supreme Court to exempt Kogi State from the effect of the judgement of the Supreme Court on 27 January 2012? Recall that the Supreme Court in a ruling on 16th February 2012, dismissed the said application
I make bold to say that the effect of the dismissal of the application by Peoples Democratic Party (PDP) is that the issue cannot be relitigated any where before any Court or tribunal forever and ever. On that premise, my stand is that by virtue of the said ruling, it means the prayers to recognise Alhaji Idris Wada as Governor of Kogi State, who was claimed to be the governor in waiting when appeal was pending at the Supreme Court and was not affected by the consequential Order 27/1/12 was not granted as same was dismissed. It stands to reason that Alhaji Idris Wada should not continue to function over the affairs of Kogi State, as Governor. Indeed, it is clear that neither Peoples Democratic Party (PDP) nor independent National Electoral Commission (INEC) t brought Wada’s ‘Governor-in-waiting’ status before the Supreme Court while the appeal was pending before judgment.
Wada’s election was conducted December 3, 2011, which was seven months after Governor Idris tenure had ended going by the declaration of the Supreme court. So Wada’s primary election ought to have gone with the apex court pronouncement. Under these circumstances, Wada couldn’t have been the lawful candidate of the Peoples Democratic Party. The only cogent and verifiable reason (which the constitution and Electoral Act require) provided by the PDP for swapping or substituting Echocho’s name with Wada was that the tenure of Governor Ibrahim Idris had not ended. Given that the Supreme Court Judgment reverted the entire process to status quo before May 29, the PDPs reason cannot be sustained before any impartial Court.
It can be safe to conclude that the purported election to the office of Governor of Kogi State held by the PDP during the pendency of its appeal to Supreme Court and which purportedly produced Wada as the ‘Governor -elect’ of Kogi State was unconstitutional, ultra vies, null and void and of no effect whatsoever since it was done in clear violation of the mandatory provisions of Section 178(2) of the constitution, Section 25(8) and 31(1) of the Electoral Act.
Recall that the Appellate Court declined jurisdiction to entertain the suit and upheld the judgement of the lower court. The case had so many dramatic twists and intrigues as the date for the judgement of the appellate court suffered up to four adjournments. It was initially fixed for 20th Dec.2012 , rescheduled to 16th Jan., 2013 and was again postponed to Tuesday 28th January,2013 before the court finally delivered the judgement on 31st January 2013; making it the fourth time the judgement would be postponed and the first time such a thing will happen in the history of the Court of Appeal.
I make bold to say that, there is something unique in Echocho’s case which makes it not just another legal dream but also different from the case of former Bayelsa State Governor Timipere Sylva which the supreme Court declined jurisdiction on. The Supreme Court judgment which nullified the tenure elongation of five former governors including that of Kogi was not an issue in Sylva’s suit unlike now. In the case of Bayelsa, it was Sylva who went to court to invalidate the primaries which he won while Echocho is in court to validate his own which will put to an end the absurdity, rule of the thumb and mischief being foisted on Kogi State.
More so, the precedent being relied upon by counsel to Idris Wada, Chris Uche (SAN) are part of the same untenable situations that has portrayed the judicial process as a game of Russian Roulette where any outcome is possible. The former Chief Justice of Nigeria had criticized this tendency which have created some confusion amongst practitioners and the general public. In the words of the CJN, ‘ we have witnessed a lot of confusion regarding the proper application of judicial precedent. These conflicting judgments not only confuse counsel but the public as well as further leading to uncertainty regarding the public perception of the ability of the court to guarantee unequivocal justice. “ This is the pitiable image the Supreme Court is under obligation to redress.
These are some of the mute and aphasiac points which the Supreme Court will have to disencumber, unsnarl and straighten out finally on monday 25th November 2013.
While I am not unmindful of the suit before the esteemed Justices of the Supeeme Court but suffice to point put that the ruling of the Supreme Court which dismissed Peoples Democratic Party (PDP) leaves no one in doubt that Wada ordinarily cannot continue to function. It is by no means dabbling into a matter that is subjudiced. It is a clear matter for enforcement in the circumstances as his continued stay in office as Governor of Kogi State is a slap on the rule of Law and due process and this impunity must not be allowed. But so much of achieving this dream lies in the hand of the judiciary which is construed as the pantheon of constitutional democracy and bulwark of the people against infractions and deprivations of their rights and privileges. The judiciary remains the only public institution that is mandated to provide essential checks on other public institutions. A fair and efficient judiciary is the key to ending electoral malfeasance, corruption, impunity and absurdity
Other things being equal, it is my sincere hope that the Apex Court under the leadership of Justice Alloma Muhktar, as an independent and impartial umpire will allow the rule of law to prevail by delivering a fair, courageous and untainted judgment.
History is waiting for us all!
Phrank Eleojo Shaibu
Public Communication Consultant,Abuja