The January 27th ruling

One of the major lacunas of the 1999 constitution is that there are certain critical situations that have in no way been anticipated by the constitution. The fallout therefore is that when such scenarios present themselves, in most cases, the polity is put in deep confusion unless and until the courts are approached for interpretation. […]

One of the major lacunas of the 1999 constitution is that there are certain critical situations that have in no way been anticipated by the constitution. The fallout therefore is that when such scenarios present themselves, in most cases, the polity is put in deep confusion unless and until the courts are approached for interpretation.

More often than not, the interpretations by the apex court on some critical issues of political contestation have exerted tremendous pressure on the polity to the extent that in a few cases, the nation was left to lick the gravity of such wounds that were created. The Rotimi Amaechi case, as controversial as it was or still is, is seen by a cross-section of both the bar and the bench as one critical trying judgment for the nation’s judiciary.

When Justice Dahiru Mustapha led a team of the Supreme Court Justice and came up with the ruling that the five governors who re-contested elections after the 2007 polls and won were only eligible to remain in office up till the 29th of May 2011 and not a day longer. The meaning of that is that it was improper for anyone among them to have started afresh after the re-election given the fact that such a person had earlier served for a period of time before the determination of the competent court that he was improperly elected.

When the constitution was been amended between 2009 and 2010, one major area of concern by the legislators was the issue of members of parliament whose elections were rigged and losers or even those who never contested ended up in parliament until courts decided otherwise. Some lost the mandate of the people for over three years and when they eventually reclaimed the mandates, they were in office only for the remaining period of that parliament.

This issue was argued extensively in the classrooms and in the courts of public opinion but the defense from the executive dominated political arena has always been that an executive occupies and office while the legislators are elected to take seats in parliament therefore, the individual has no life of his own but that of the parliament. The constitution again is silent on what punishment or penalty awaits anyone who benefits from such illegalities and the reward for those who were illegitimately excluded.

My position on the tenure issue of the five governors has since been informed by several reasons among which two stand out. One is on the nature of law and the legal system globally and even from the spiritual point of view. Any particular law takes effect when it comes into force. New laws are never applied in retrospect.

It is improper and illegal for instance to make a new law to address certain societal problems and deploy such laws to take effect and catch up with those who committed the offence before it was in force. The spirit in law making is anchored on the desire to rid the society of those offences or crimes that are committed. I stand perfectly well with the judgment of the Federal High Court and Court of Appeal in this respect.

The tenure question in the 1999 constitution as amended in my view was intended to address the very vexed issue of the lacuna in the constitution and I expected that the application of the new law would only be to the extent of when it came into effect i.e when President Jonathan signed the amendment.

I feel very uncomfortable with the new reality that the timing of the law and its effectualization are inconsequential. This is one salient message from the Friday ruling. My thinking which definitely is now inferior is that the most critical question in the whole tenure argument is not necessarily the date of oath or any other mater related to it but the law in relation to time of construction and effect.

In any case, the Supreme Court is final on any matter of law even to those in that direction. This however does not take away our constitutional right to disagree or show dissent over certain pronouncements whether legal or otherwise.

The issue at stake is that I find quite a few things very difficult to comprehend and I think to a great extent that was why there was confusion in the polity especially in those areas directly affected by these judgments.

The ruling which simply directed that the status quo be maintained didn’t go any further to define what constitutes the status quo. Was it the January primary elections of the PDP or the one held later? I can see why it was very easy for both the Attorney General of the Federation and the Independent National Electoral Commission (INEC) come up with various interpretations of the judgment.

While it is dangerous to assume that the activities of these governors since May 29th were illegal, the judgment or ruling failed short of clearly determining what the situation is and what it should be. Yes, the court does not give one what he is not asking but on matters that require explicit definition, I am of the view that the courts must go ahead and chart a course in the interest of the system.

I am happy that on this or similar matter, this is the last time we will be having such a problem to resolve but certainly, the nation will be the better for it.  This is one sign that democracy may after all be taking its roots in the country now. It is difficult putting a system straight but with the right attitudinal frame, it is possible still for Daniel to fight the lion.

God bless Nigeria.