Fayose’s Journey in Futility
Ekiti State governor,
Ayodele Fayose has declared his intention to seek an extension of his
tenure beyond 2018. In view of the plethora of authorities which render
such adventure a waste of resources, Davidson Iriekpen asks why the
governor wants to embark on a futile mission
Ekiti State Governor, Mr. Ayodele
Fayose, last week stirred the hornet’s nest when he said he might seek
an extension of his tenure beyond 2018 in court. The governor, whose
posters have already adorned the streets of Ekiti, stated that since his
first term of four years was truncated through an illegal impeachment,
it was necessary that he was allowed to complete it now.
He was first elected governor in 2003 on
the platform of the Peoples Democratic Party (PDP) after he defeated
Niyi Adebayo of the Alliance for Democracy (AD). On October 15, 2006,
about seven months to the end of his first four-year term, he was
controversially impeached by the state House of Assembly. Having lost
his immunity, and with threats of arrest staring him in the face, he
fled the country to an undisclosed country. He suddenly resurfaced in
November 2008 into the waiting hands of the Economic and Financial
Crimes Commission (EFCC) which charged him to court over allegations of
corruption.
The case dragged on to 2014 when he contested for the governorship election again and defeated the incumbent, Dr. Kayode Fayemi.
In the 2007 general election however,
Segun Oni of the PDP was declared winner by the Independent National
Electoral Commission (INEC) as governor of the state and sworn in on May
29, 2007.
After about three years of litigation,
the Court of Appeal in 2010, nullified Oni’s election and Kayode Fayemi
of the defunct Action Congress of Nigeria (ACN) was sworn in as
governor. However, Fayose again contested in 2014 against Fayemi who was
seeking a re-election for another term. INEC declared him winner and in
October 2014, he was sworn in as governor.
Even though Fayemi refused to challenge
his victory at the tribunal, his party, the All Progressives Congress
(APC) did. One of the grounds the party hinged its suit on was that
Fayose was not eligible to contest the election in the first place since
he was removed from office via impeachment. Of course, the governor won
the case at both the tribunal and the Court of Appeal.
On appeal to the Supreme Court, the APC
again raised the issue of Fayose’s impeachment. In its judgment, the
apex court in April 2015, held that impeachment was not a ground for
disqualification citing section 182(1)(e) of the constitution which
listed the grounds for disqualification.
Justice Sylvester Nwali Ngwuta who
delivered the lead judgment held that only a court of law or the Code of
Conduct Tribunal could find a person guilty before such a person would
be disqualified from standing election for ten years.
The court held that the proper thing to
have done after Fayose was impeached was to charge him before the Code
of Conduct Tribunal and that having not done that, he was not barred
from re-seeking election as governor of Ekiti state.
Besides, the court held that since the
first panel constituted by the then Chief Judge of the State, cleared
Fayose of any wrong doing, the matter ought to have ended there in
accordance with the section 188 (8) of the constitution.
According to the justices, the
constitution of another impeachment panel by the Acting Chief Judge of
the State, Justice Jide Aladejana (who was later dismissed by the
National Judicial Council) was an illegality.
Explaining why he chose to put his
picture in the campaign posters currently circulating in Ekiti, Fayose
said since the apex court said his impeachment in 2006 was illegal, he
was entitled to approach the same court to interpret what that ruling
meant.
“The continuity poster you see my image
in and which is spreading across the state can be interpreted in two
ways. First, is the need for me to ask the apex court to explain its
2015 ruling that my so-called impeachment in 2015 was illegal, null and
void and consider a re-election in 2018 so that I can complete my term.
Second is for me to get our own man, one who is like Ayo Fayose to
continue after my tenure in 2018,” he said.
Legal experts, however believe that
Fayose does not stand a chance in view of previous judgment of the
Supreme Court in the case of Governor Rasheed Ladoja v INEC, when the
appellant (Ladoja) wanted an extension of his term of office to allow
him to spend extra 11 months while he was fighting his impeachment from
outside. Though, the court set aside his impeachment, it was held that
the relief was illegal and unconstitutional. They wondered if the court
did not allow Ladoja who was returned to office after 11 months to enjoy
tenure elongation why should it be Fayose who is seeking the same
gesture over 10 years after.
The observers also drew his attention to
the case of the five governors who were re-elected after their initial
election was annulled, where the court equally made it clear that tenure
extension was unknown to the constitution.
Just like the reactions Fayose was
expecting the issue to generate, lawyers in the country are already
expressing different opinions on the issue. While Femi Falana (SAN),
Emeka Ngige (SAN); Sebastine Hon (SAN); Paul Ananaba (SAN) and a
Lagos-based legal practitioner, Jiti Ogunye, argued that Fayose’s bid
was unconstitutional and bound to fail, another senior lawyer, Chief
Mike Ozekhome, believes the court could grant Fayose the opportunity to
serve out the seven months remaining in his first term before he was
impeached.
For instance, Falana described the
governor’s intention as anomalous, saying the bid would amount to a
tenure elongation which no court could grant.
He said: “Tenure extension by a governor
under any disguise is anomalous. No court can prolong the tenure of a
sitting governor barring the two terms prescribed by the constitution.
In the case of Governor Rasheed Ladoja v INEC, the appellant wanted an
extension of his term of office to allow him to spend extra 11 months
while he was fighting his impeachment from outside.
“Although the Supreme Court had set
aside his impeachment, it was held that the relief was illegal and
unconstitutional. Similarly, the governors who were re-elected after
their initial election was annulled, the Supreme Court made it
abundantly clear that tenure extension was unknown to the constitution.
In view of the settled position of the law on the matter, Fayose cannot
be granted by any court in Nigeria.”
On his part, Ngige argued that
antecedents showed that the court could not grant the request of the
governor. He added: “My own understanding is that based on the Supreme
Court decisions on former governor Peter Obi versus INEC, and former
governor Ladoja against the state House of Assembly, Fayose is not
eligible to contest another term.
“The then Oyo State governor had
complained to the court about his impeachment by the state House of
Assembly, which truncated his tenure, and later voided, and sought to
extend his tenure by the number of days to reclaim his mandate; but the
Supreme Court told him pointedly that it was not possible.
“The same thing applies to Fayose. He
had taken an oath of office, whether rightly or wrongly but he was
impeached along the line and later, the impeachment was voided by the
court. But that is not to say that the tenure did not run.
“However, I think the governor is
perfectly entitled to seek judicial interpretation of his eligibility to
contest another term of office. It is a democratic sense to do that. He
can try his luck.”
Hon also agreed citing the cases of Ladoja and Obi.
According to him, the apex court had
settled the issue that wrongful impeachment could never serve as grounds
to extend a statutorily defined term of office. He contended that the
Supreme Court would not likely to overrule itself if Fayose approached
the court.
Hon said: “The four years which a
governor is entitled to for a term cannot be broken just because of
impeachment or because the election of somebody was nullified and the
person was outside and later came back. Those issues have been settled
by the Supreme Court and I don’t see the court overruling itself and I
don’t think Fayose has any right to come back under the law.”
Ananaba also said Fayose could not seek
re-election, having taken the oath of office for the office of the
governor twice. Although Ananaba said it was an issue that should be
tested in court, he expressed doubt whether Fayose was actually serious
about seeking re-election.
He added: “The issue is whether he has
taken the oath of office for the position of a governor twice. If the
answer is no, then he can seek re-election but if the answer is yes, he
cannot seek re-election.
“But I think it is a matter that should
be tested in court. Although I’m aware that that certain principles have
been settled, the law is being developed every day. But I don’t think
he actually wants to run.”
However, Ozekhome who has been Fayose’s
lawyer lately, said if the governor could convince the court, he might
be compensated for seven months to fulfill his constitutional two terms.
He said: “The truth is that if I
remember carefully, Fayose won the matter that his impeachment was
illegal. And if it was declared illegal by a court, it means then that
it never was. If a competent court declared the impeachment as null and
void, it then means that the seven months for which he was impeached
were illegally taken from his two terms. Therefore, I will say that
where there is a right, there is a remedy.
“So, once Fayose can prove that he was
illegally removed and that illegality has been confirmed by a court of
law, it means that in the eyes of the law, he was still a governor but
was prevented from acting during the impeachment. He can therefore seek
for recompense for those months to enjoy the unexpired residue of seven
months for which his governorship was truncated.
“Fayose may have said the statement as a
politician to fly a kite, but I can assure you that he has touched on
something of serious constitutional import. Fayose is not looking for
four years, but seven months. In the worst scenario, he can be entitled
to only seven months which was taken from his first term.”
Ogunye, on his part, advised Fayose to
talk to his lawyers so that he could be properly guided in his ambition.
He noted that the constitution did not make provision for an extension
when a governor’s tenure was truncated to allow such person to contest
and make up for the lost time.
He said: “Assuming he wins the election
in 2018, will he then govern mathematically or arithmetically up to the
month or the year when his first term was truncated?
“The little law that I know, in the case
of Obi and INEC, in relation to the provision of the constitution on
tenure and the qualification to contest a governorship seat, if you were
elected into office twice and has taken the oath of office twice, the
emphasis is on being elected twice and being sworn into office twice,
you will not be able to contest another term. The constitution does not
provide for a truncated tenure to enable a person, whose tenure is
truncated, to come back and have another bite at the cherry.”
Quote
While Femi Falana (SAN), Emeka Ngige
(SAN); Sebastine Hon (SAN); Paul Ananaba (SAN) and a Lagos-based legal
practitioner, Jiti Ogunye, argued that Fayose’s bid was unconstitutional
and bound to fail, another senior lawyer, Chief Mike Ozekhome, believes
the court could grant Fayose the opportunity to serve out the seven
months remaining in his first term before he was impeached.
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