Vanguard of Sunday, March 2, 2008
Lots of things are cropping up that we did not bargain for when we were grappling with a written constitution. One of them is what the person who manages the three-month transition that is provided for conducting a re-run of the elections which the court has annulled should do as occupant of the office of governor.
There are four reasons stated in section 145(1) of the Electoral Act 2006, that would make an election tribunal nullify an election, that the person whose election is questioned was not qualified to contest the election at the time of the election; that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the act; that the one who was declared winner was not duly elected by a majority of the lawful votes cast; or that the party complaining was validly nominated but was unlawfully excluded from the election. The two cases on our table now are Kogi and Adamawa States where the governors lost their appeals to the Court of Appeal to upturn the decision of the tribunal nullifying their elections, not because they may not have won but that the petitioners who were qualified to contest were unlawfully excluded.
The implication of the decision of the Court of Appeal which is the final port of call for gubernatorial elections, is that Idris of Kogi State and Nyako of Adamawa State were never governors. But the truth is that they were, until the courts said they were not. And that is the problem, compounded by what happens with all the decisions they had made and actions they had taken in performing the functions of office of governor while they occupied the office which in law they did not occupy.
The first casualty when a gubernatorial election is nullified is the governor himself and the deputy because they have a single ticket. But is that all? Should that be all? What of the political appointees – the commissioners, the special advisers, the special assistants, the selected chairmen of councils not elected, the board members? And what is the moderator of affairs during the transition supposed to do with these political aides of the governor? Yes, they are the governor’s political aides and if the governor did not occupy the office in law, can a case be made for why those he appointed should remain?
This is where the problem is. How can anyone run from the fact that Idris was there, and had been since May 29, 2007; and that Nyako was there and had been since May 29, 2007? If the practice before the return of the military had been sustained in the law that regulates the conduct of elections in Nigeria, we would not have had the problem of having sworn in people whose elections are upturned after they had done what the one qualified for the office and endorsed for the office through due process would have had to do.
In 1979 and in 1983, all complaints arising from the presidential and gubernatorial elections were disposed of before the October 1 swearing-in dates. In a situation we are in now in which elections are held just a month before swearing in, how possible is it for those who want to make a case to do so, from the court of first instance to the final court- within one month? Is it not obvious that some evil genius had an agenda to provide the grounds for sustaining inequities? In our Electoral Act, you cannot start campaigns for votes until INEC says so.
Many situations were foreseen by the Constitution, but not one in which. the person quitting office had to do so because he failed to scale the fence of election and was so decreed by an election tribunal. We should therefore be thinking of what guidelines to set for the Speaker of the House of Assembly or indeed the President of the Senate of the National Assembly if the courts decide that those who had been sworn in before the complaints on the election of governor or president had no business being there.
Who will sort out those guidelines? The National or State Assembly cannot do it because one organ of government cannot make rules for another: nor can the judiciary do so for the same reasons. Only a constitutional amendment can attend to this unbargained-for situation.
But were we to take the bull by the horns, we would accept the oath of office as adequate guidance to the one who has to moderate the transition from the time the disqualified person quits to the time of the swearing in of the one who should be there. That being the case, what should be the role of the Speaker who had been sworn in as governor? Many of our learned colleagues say he should perform the duties of governor and take decisions an elected governor should take.
They cite the presence of administrators after a state of emergency had been declared. In other words, the administrator is a one-man army. But can the Speaker who is now governor be a one-man army where there is an elected house of assembly and the members of that house are performing their legislative duties? You see, it is the fact of the presence of the members of the legislative arm that I believe the governor of transition cannot do anything outside due process; and why I believe that his role as governor is one which should be seen as a special duty post.
In fact, I believe there are many things he should not even do, if he wants to ensure that he keeps to the oath of office of governor. His personal interest should not influence his official conduct or his official decisions. Applying the content of Schedule Seven where the oath of governor is settled, the acting governor of Kogt State cannot claim to be clean in meeting this commitment.
We all should be watching to know if the acting governor of Adamawa State will fall into the same unconstitutional trap the man in Kogt State plunged into head first. Aside of the personal interest is the commitment to do right to all manner of people, according to law, without fear or favour, affection or ill-will.
Although the governor moderating the transition is there for a maximum of 90 days during which elections should be held to appoint a governor, whether it is the return of the one who was there de facto but was never there de jure, or one brand new one, is not to conduct the election, he is the one to provide a level playing field for such an exercise. There is no level playing field where those appointed to political positions by those who were there de facto but had no business being there de jure are retained.
The Kogi State acting governor said he would retain the commissioners appointed by Idris by re-appointing them and swearing them in. They are politicians and can never hold fort for anyone, in their official capacity, than the man who legally was never there. Even if it was necessary to re-appoint them, the fact of the re-appointment is that they lost their jobs when Idris quit. To appoint them to the same positions had to take the route their first appointments took.
It is erroneous to think that the governor appoints commissioners. No he does not. Read section 192(2) of the Constitution. The governor nominates those to occupy the post of commissioner of the government of the state. The nomination is either confrrmed by the House of Assembly of the state or not confirmed. If not confrrmed, the story ends there. It is the same at the federal level.
Obasanjo had to send one person’s name three times to the Senate of the National Assembly. So what the governor or president does is a recommendation that someone be endorsed for the position of commissioner. After such endorsement, the governor has the prerogative of assigning portfolios to the commissioners.
The logic is that if Idris had no business being there and he made appointments that can be reversed, like political appointments, those appointments lapse on the day he quits office. Since the transition governor is there to provide a level playing field for those contesting the position of governor, it is ill-advised to sustain a team that had no business being there in the first place. But if he had to have them on board, then he would have had to go to the House of Assembly of Kogi State to confirm his nomination of the commissioners, if that is his perception of doing good to all manner of people.
The truth must be told that our practice of democracy is ambushed by legal. road blocks of our deliberate creation which will work to estrange the people and distance them from governance instead of pulling them close to be participants in the way they are governed. With the way we are attending to this new event of a governor being therein fact and not being there in law, we are making it difficult, if not impossible, to provide the environment for elections that can be free and fair and be conspicuously seen to be so. With what we have on ground, no governor removed through due process can lose in a re-run, unless of course he has other weights stacked to his political burden.
(Published in Vol. 3 of Democracy Watch, A Monitor’s Diary by Tony Momoh, pages 23 – 27; Lagos, 2011).