9 November 2009
opinion
Gonza Ilozie — Just as Mr. Andy Uba's foot soldiers and entertainment company, exuding a festive mood, began to invade the premises of the Court of Appeal Enugu, on the morning of November 5, 2009, news of adjournment of the day's hearing filtered out. For the excited Uba camp, the deferment of judgment in the unprecedented appeal by Uba to be declared Governor Peter Obi's successor based on a most controversial April 14, 2007 election, was like a slap of thunderbolt. For most critical observers however, the adjournment, irrespective of the official reason of a judge's ill health, seemed like a welcome flow of fresh air.
While speculations have continued to surround the deferment of judgment till November 13, there can be no doubt that the present case is a matter with constitutional and political implications beyond Anambra State, and thus demands extra care for its resolution. The said postponement should therefore afford a composite consideration of the salient issues involved, and negate any impressions of a hasty handling.
A question invariably raised by Mr. Uba's attempt to get the Court of Appeal to affirm his unpopular election in 2007 is whether the grounds of this case are not essentially covered by the far-reaching principles of the June 14, 2007 Supreme Court judgment which rendered the aforementioned governorship poll invalid.
Where the Appeal Court comes to the conclusion that the basis of Uba's appeal had been overwhelmed by the Supreme Court's decision that the April 2007 election was 'a wasteful exercise', a seven year political crisis would have been resolved. The complications engendered by the INEC's bungling of the April 19, 2003 governorship election which Peter Obi won fair and square, would have been tidied up for good. Preparations for the February 6 governorship election would resume apace with the attendant promise of meeting the constitutional requirements for a valid governorship poll. A contentious or inconclusive election has the inherent capacity for either creating a leadership vacuum or a tenure extension of the incumbent according to the dictates of section 180 (1) of the 1999 Constitution. A loss for Andy Uba would obviously signify the terminal bus stop of his case. Having gone the round of all the relevant courts, justice would not only have been done but seen to be done.
But, if the Appeal Court rules in Uba's favour, this would introduce enormous complications. A governor-in-waiting verdict, far from ending the governorship tussle, would actually aggravate it, with serious consequences for the political stability of Anambra State.
It does not take much to predict that a win for Uba will immediately take the battle back to the Federal High Court for determination of at least three critical issues. For, Uba's suit is only nominally an electoral matter and substantially a constitutional matter.
Those with the locus standi will challenge the validity of an election conducted in breach of section 179 (2) of the constitution. The section unequivocally demands that: 'An election to the office of Governor of a State shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.'
This suit can competently be brought under the powers of the courts to interpret the constitution. Having made that fine distinction between adjudication of election matter and interpretation of the Constitution in Peter Obi's tenure case, the issue of lack of jurisdiction would therefore not apply. The Courts will simply invoke the precedent rule. The question to be asked in the event of such a scenario is what answer any one can provide to justify an election conducted three years to the end of a tenure; and which held in defiance of a judicial process challenging this very intent.
For the avoidance of doubt, the power of the court to determine all issues between persons, institutions and governments, except where specifically reserved, is expressly guaranteed by Part II, Sections 6 (6) and 257 of the Constitution, among others.
The second leg upon which a victory for Uba in the current Appeal Court case will be subsequently encumbered has to do with the multiple petitions filed by some governorship candidates in the April 2007 elections. These election petitions were to the effect that the figures credited to Andy Uba were the product of the INEC's imagination as no voting took place on the day fixed for the election. These petitions, and indeed the governorship election subject matter were nullified by the election petitions tribunal as a direct consequence of the Supreme Court Judgment of June 14, 2007. The Appellate Election Tribunal had differed with the lower tribunal holding that the latter should have heard the petitions in their merit or struck them out for want of jurisdiction. Thus, it stands to reason that in the event of Uba's victory on November 13, 2009, these petitions will be resurrected for their determination on merit.
However, we may not even get to that stage. We do not need an oracle to know that Governor Peter Obi for one, will head to the Federal High Court seeking leave for enforcement of his fundamental rights to vote and be voted for. The Constitution guarantees a right of two tenures as governor and Obi, having emerged as the candidate of his party, would not accept to be denied the opportunity for possible re-election. The likes of Obi would be emboldened by the combined provisions of section 179(2) of the Constitution and the oft-cited Supreme Court judgment to demand the holding of fresh governorship poll in 2010. A case of this nature would obviously get to the Supreme Court and your guess is as good as mine what the verdict of the court would be on the status of the election Uba is clinging tenaciously to.
But perhaps, the critical point lies in the fact that in the event of this suit being originated at the Federal High Court, its final resolution at the apex court cannot reasonably be expected before April 2010. And it goes without saying that while the judicial process lasts, a governorship election would not be conducted. This would lead to the non-observance of the mandatory time frame for the conduct of valid polls. In effect, there would be no successor to the office of governor at the expiration of Peter Obi's tenure on March 17, 2010.
It seems probable that Andy Uba would be unable to assume the office at this time. The anticipated judicial process for the conduct of a fresh governorship election would predictably involve an application for restraining orders on Uba. Relatedly, the provision of Section 180 (1) of the Constitution that 'a person shall hold the office of Governor of a State until (a) when his successor in office takes the oath of office' may provide sufficient ground for Obi to continue in office.
In the light of the foregoing, it would be difficult not to view Uba's prayers as a matter of personal ambition versus the public interest. There can be no trivialising the fundamental issue of achieving a credible and enduring transition in Anambra state. The Court of Appeal has a golden opportunity to strengthen constitutional democracy in Nigeria. A democratic Nigeria without transparent and participatory electoral process is a sharp contradiction shouting for political reforms. Judicial activism and integrity has considerably helped to keep the hope of our democracy alive. Let it continue.
Ilozie wrote in from Awka, Anambra State.
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