Abuja — There is the widespread but false contention that the 2007 governorship election in Anambra State conducted by the Independent National Electoral Commission (INEC) was annulled or cancelled by the Supreme Court.

This erroneous contention has continued to be accepted as gospel truth in certain political circles because some justices of the Supreme Court reportedly observed in the Peter Obi Vs INEC case that the electoral commission ought not to have conducted the election from which Mr Andy Uba of the Peoples Democratic Party (PDP) emerged winner. However, the issue here is not about the declarations made on the Peter Obi tenure case by the Supreme Court. The poignant question is whether the apex court had the jurisdiction to determine the vacancy of the governorship seat in Anambra State bearing in mind its powers and responsibilities as defined by the 1999 constitution of the Federal Republic of Nigeria.

It is necessary to point out that on June 14, 2007 the Supreme Court ruled on the Peter Obi Vs INEC case and ordered "that the office of the Governor of Anambra State was not vacant as at 29th May, 2007; that the tenure of the office of the appellant (Peter Obi) as the Governor of Anambra State which is for four years certain will not expire until 17th March, 2010;" and "that the 5th Respondent (now Applicant) Dr. Emmanuel Andy Uba, should vacate the office of the Governor of Anambra State with immediate effect to enable the Plaintiff/Appellant, Peter Obi, to exhaust his term of office." To discerning minds, the Supreme Court declarations recounted here have far-reaching consequences both for the issue of the rule of law and the sustenance of democratic best practices in Nigeria. The pertinent question arising from this ruling of the Supreme Court is whether the apex court is empowered to declare as it did in the Peter Obi tenure case.

Let us start with the issue of whether the governorship seat of Anambra State was vacant as at 29th May 2007. The Supreme Court declared "that the office of the Governor of Anambra State was not vacant as at 29th May, 2007." The simple question that arises from this apex court ruling is; where did the Supreme Court derive the powers to pronounce as it did in this matter? The constitution is quite clear that it is the National Assembly Election Tribunal that is the court of first instance when it comes to determining the term of office of any person in Nigeria. Section 285(1)(b) of the constitution says; "There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original Jurisdiction to hear and determine petitions as to whether the term of office of any person under this constitution has ceased." The constitution did not say that this responsibility (for the court of first instance) rests with the normal courts, that is, state or federal high courts, appeal court and the Supreme Court. There is no evidence that Peter Obi approached this tribunal as demanded by the constitution to determine when his tenure as Governor of Anambra State is supposed to end.

Again, the Supreme Court declared "that the tenure of the office of the appellant (Peter Obi) as the Governor of Anambra State which is for four years certain will not expire until 17th March, 2010." The pertinent question here is; who gave the Supreme Court the powers to declare that Peter Obi's tenure must end on 17th March, 2010? Did the constitution empower the Supreme Court to make such consequential declarations in respect of governorship seats in Nigeria? The constitution is quite clear that it is the Court of Appeal that has the final say in the determination of the tenure of the sitting Governor of a State. Section 246(1)(biii) of the constitution says; "An appeal to the Court of Appeal shall lie as of right from - decisions of the National Assembly Elections Tribunal and Governorship and Legislative Houses Election Tribunals on any question as to whether - the term of office of any person has ceased or the seat of any such person has become vacant". Section 246(3) ices the cake by insisting that "The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final". Given this information, is there any doubt that the Supreme Court over-reached itself in the Peter Obi tenure case when it gave judgment on a matter it had no jurisdiction to address.

As if enough havoc had not been done to the basic structure of the 1999 constitution when viewed against the backdrop of its declaration on Peter Obi's tenure, the Supreme Court went ahead to ask Andy Uba to vacate the seat of government in Anambra State. The Supreme Court declared "that the 5th Respondent (now Applicant) Dr Emmanuel Andy Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the Plaintiff/Appellant, Peter Obi, to exhaust his term of office." Now, we are talking about an Andy Uba who, after being sworn in as Governor of Anambra State on May 29, 2007, started to preside over the affairs of the State as its chief executive. And as the Governor of Anambra State, the constitution is quite specific that the only way to remove a sitting Governor from office is by impeachment by the State House of Assembly. There is no provision in the constitution that a sitting governor could be ordered out of office without the realization of a re-run election. So, from where did the Supreme Court derive the powers to remove Andy Uba from Government House, Awka, on June 14, 2007?

The point being made here is that the Supreme Court is a creation of the constitution; the grundnum of the country that gave it defined powers and responsibilities. There is no place where the constitution provided that the Supreme Court can determine when the tenure of a governor is to end or whether the governorship seat of any State has become vacant. The constitution is quite emphatic that it is only in the case of the presidential seat of governance that the Supreme Court has the final say as to tenure or vacancy. Section 233(2)(e) says; "An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right . On any question whether the term of office of President or Vice-President has ceased; whether the office of President or Vice-President has become vacant".

The truth is that since the appropriate courts did not adjudicate or rule on Peter Obi's case with INEC, his tenure of office as Governor of Anambra State ended on May 29, 2007. Similarly, since no court of law in Nigeria restrained INEC from conducting the 2007 governorship election in Anambra State, the election that brought Andy Uba to power on the basis of which he was sworn in on May 29, 2007, stood on the firm legs of the law. The attempt by the Court of Appeal to give a consequential declaration that will give practical effect to the position of the law earlier sanctioned in its judgment of February 18, 2008, cannot under any circumstances tantamount to an act of upturning the ruling of the Supreme Court on the Peter Obi tenure case or undermining the provisions of the constitution of the Federal Republic of Nigeria.

Peter Adindu, Abuja