Fayose and the Tenure Debate

In this article, Joe Edet, using judicial precedent, examines Section 180 of the 1999 Constitution of the Federal Republic of Nigeria, and the constitutionality of Governor Ayo Fayose of Ekiti State, seeking another term in office, having served an earlie

RDoes Fayose's Position Make Legal Sense? ecently, Governor Peter Ayodele Fayose of Ekiti State, is reported to have made known his intention to seek what may be described as a controversial third term or tenure elongation. He contended that since the Supreme Court had declared his impeachment by the House of Assembly illegal, null and void, then he is entitled to a remainder of the period that was truncated. His position makes common sense. Does it also make legal sense?

It is pertinent to look at what the law says, in any case. No doubt, Fayose courts controversies, but it will be suicidal, politically at least, not to take him seriously on this issue or to dismiss his rant, as that of an ant. The Nigerian Legal System is founded on the doctrine of stare decisis, lawyers language for 'let the decision stand'. In short, it is founded on the doctrine of judicial precedent. As far back as the 13th century, Bracton the leading common law exponent, had written that “If any unwonted circumstances shall arise, then if something analogous has happened before, let the case be adjudged in like manner, proceeding a similibus and simile”. Parks B had equally expressed a similar view in Mirehouse v Rennel(1833). So what is the precedent of this case and is it applicable in the present circumstances?

Judicial Precedent: LADOJA v INEC

The leading case on tenure elongation, was maybe that of LADOJA v INEC. The issue before the court was whether the tenure of a Governor can be prolonged, to compensate for the period out of office, due to unlawful impeachment. The Supreme Court court held that it has no power to prolong the period of four years prescribed for a Governor beyond the terminal date computed from when he was sworn into office, as to do otherwise will occasion much violence to the Constitution. In this case, the Appellant prayed the court to extend his tenure by eleven months, to cover the period of his illegal impeachment by the Oyo State House of Assembly. In rejecting the prayer, the apex court held, inter alia, that “the Appellant whose assumption of office was on 29th May, 2003 when he was sworn into office to serve his first term of four years as Governor of Oyo State, has not shown anything on record by which the fixed tenure of four years as prescribed in section 180(2) (a)of the Constitution can be extended beyond 29th May, 2007.

PETER OBI v INEC

Clearly the locus classicus on tenure elongation is PETER OBI v INEC. Mr Peter Obi had gone to the Election Tribunal to challenge the declaration of Dr Chris Ngige, as the winner of the Anambra State Governorship election in 2003. He won at the Tribunal and the Court of Appeal affirmed the judgement on appeal. However, it took three years for the resolution of the dispute, before his assumption of office. After barely one year of his assumption of office, the Independent National Electoral Commission purportedly scheduled a fresh election into the Governorship seat, on the ground that his tenure has expired, having spent the first three years of his tenure of office. He went to court seeking the restoration of his normal tenure of four years as guaranteed under section 180(2)(a) of the 1999 Constitution. The Supreme Court, in an unanimous decision, declared that he was entitled to his full four-year term under the Constitution, as a usurper of the office cannot legally spend part of his tenure on his behalf. Peter Obi got his tenure restored. Indeed, the Supreme Court was emphatic that, the tenure of a Governor begins to run from when he is sworn in.

MARWA v INEC

In MARWA v INEC, the Supreme Court delivered its judgement on what was seemingly a constitutional quagmire, over the tenure of five governors whose elections were nullified by the court, but proceeded to win the re-election ordered by the court. The Supreme Court declared that the tenure of the five Governors terminates after four years, from when they took the first oath of office and therefore, ordered the Governors to vacate their offices, which were deemed to have elapsed in May 2011. In the determination, the Supreme Court held that by the provisions of section 180(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, the tenure of a Governor of a State shall be for four years, calculated from the date in the case of a person first elected as Governor, when he took the oath of allegiance and oath of office; and in case of the person last elected to that office, when he took the oath of allegiance and oath of office or would, but for his death, have taken such oaths. The Supreme Court also decided on whether the tenure of a Governor re-elected by a rerun election, begins to run from the second oath of alliance and office that the tenure starts from being sworn in, and in this case, on the 29th of May, 2007. The court reiterated that having regard to the provisions of the Constitution in section 180(2)(a), there was no room for the same person elected Governor, to be elected twice following a rerun election and that a person cannot be said to have been “first elected as Governor under this constitution” except he was not the winner of the earlier or first election.

The Supreme Court equally stated that from the provision of section 180 of the 1999 Constitution, it was intended that a Governor of a State shall have a tenure of four years, from the date he first took the oath of allegiance and of office and nothing more. He may spend even less where he dies, where he resigns or where he is impeached. It follows that, a Governor has a maximum tenure of eight (8) years under the Nigerian Constitution and no more.

The Supreme Court emphatically stated that, the Nigerian Constitution has no room for tenure elongation or a move aimed at self-succession for a cumulative tenure exceeding eight years. It emphasised that since there was an election in 2007, of which the Governors won and were sworn in, the oaths administered to them cannot be wished away, so also their actions, duties and functions which they discharged and acquitted while occupying the seat.

The Governors may not have been de jure Governors, but they were certainly de facto Governors in actions and deeds, during the period they acted ostensibly in accordance with the provisions of the Constitution and Electoral Act. It therefore, follows that the period they so served as Governors has to be counted in their favour in determining the terminal date of their tenure following, what the Court referred to as their second missionary journey vide a rerun election, particularly as the Constitution unequivocally grants a tenure of four years to a person elected Governor of a State. The Court further held that, calculating the tenure of office of the Governors from the date of their second oaths, while ignoring the first oaths, is to extend the four-year tenure constitutionally granted the Governors, which would be unconstitutional. Consequently, and with an air of finality the court held that, the second oaths taken in 2008, though necessary to enable them function in that office, were clearly superfluous, pointless, otiose and purposeless in determining the four-year tenure under the 1999 Constitution.

The judgement in the MARWA case was said to constitute a volte-face and a departure from the principle that the Supreme Court had established earlier in the Peter Obi’s case whose facts were fac simile and in pari-materia with the Marwa case. Emmanuel C. Ukala, SAN, had wondered how a nullified election can give rise to a valid oath of office? According to him, the Supreme Court has over the years expounded and relied on Lord Denning’s obiter dictum in MCFOY v UAC - that, If an act is void, then it is in law a nullity, and that it is not only bad, but also incurably bad, and every proceeding, which is founded on it, is also bad and incurably bad. The Court had concluded that you cannot put something on nothing and expect it to stay there. Equally in SKENCONSULT (NIG) LTD

v UKEY, the Supreme Court relied heavily on this dictum when it held that void acts are void for all purposes, and that they do not count for anything. Same in LABOUR PARTY v INEC where the Supreme Court stated on the effect of nullification of an election that: A nullified election is a voided election leaving a complete void...thus, once an election is declared null and void, the law regards whatever was purportedly done in the name and guise of an election as not having taken place at all. In the eyes of the law, the election is void ab initio, and fresh election is conducted as if the earlier one did not take place at all.

In the opinion of Femi Falana, SAN, a fresh tenure will reward electoral fraud. He suggested that, instead of endorsing tenure elongation, the appellate court should have recommended the purported beneficiaries for prosecution pursuant to section 149 of the Electoral Act, 2006. Clearly, the legal reasoning in UAC v

MCFOY, when applied to the Marwa case, seems quite logical, but when applied against the other provisions of the 1999 Constitution, which stipulates a maximum tenure of eight years for Governors, it falls like a pack of cards. The framers of the Constitution, couldn’t have contemplated a tenure elongation in whatever guise. The Constitution and the apex court are in total agreement that a tenure is four years and nothing more pretentious.

First Alteration Act, 2010

The judgement in the Marwa’s case was given greater impetus by the amendment of the Constitution by the First Alteration Act, 2010, particularly by the insertion of the new section 180(2) (a) which provides that, in determining the four year tenure, where a rerun election has been ordered and the person earlier sworn in wins again, the time earlier spent in office by him before the election was nullified shall be computed in his favour. Itse Sagay, stated that the very idea of the amendment of section 180(2) to eliminate tenure elongation is clear evidence that the legislature wanted to put beyond doubt, a situation that was already implied in the section.

The very refreshing words of Onnoghen, CJN, summarised the judgement in respect of the tenure elongation issue thus: "It is settled law that the time fixed by the Constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded or stretched beyond what it states". From the foregoing, the Supreme Court had effectively overused the Ladoja’s case, thus, it will be unwise to dismiss Fayose’s claims. Clearly the arguments against tenure elongation is applicable in respect of tenure truncation , after all, 'what is good for the goose, is good for the gander'. The Supreme Court couldn’t have been against tenure elongation, but supportive of tenure truncation. Fayose deserves his full tenure. The tenure is immutable like the rock of Gibraltar.

"IT IS PERTINENT TO LOOK AT WHAT THE LAW SAYS, IN ANY CASE. NO DOUBT, FAYOSE COURTS CONTROVERSIES, BUT IT WILL BE SUICIDAL, POLITICALLY AT LEAST, NOT TO TAKE HIM SERIOUSLY ON THIS ISSUE OR TO DISMISS HIS RANT, AS THAT OF AN ANT"