By Ebun-olu Adegboruwa
ON Monday, June 27, 2016, the country was again thrown into some shock with the news of the judgment of the Federal High Court, Abuja, sacking the Governor of Abia State, Mr. Okezie Ikpeazu. From the reports, it was said that Governor Ikpeazu does not possess the requisite qualification to contest the election as governor, in that he did not furnish credible evidence of payment of tax, to the Abia State Government. Accordingly, the court directed the Independent National Electoral Commission to issue a certificate of return to Mr. John Ogah, the candidate who came second in the Peoples’ Democratic Party’s governorship primary.
Surrender his mandate
This judgment is said to be predicated on section 24 (1) (f) of the 1999 Constitution and the Electoral Act. According the court, the governor did not qualify to contest the election ab initio and PDP was wrong to have presented him as a candidate. On these grounds, he was asked to surrender his mandate to Mr. Ogah. With all due respect to the court, this judgment is wrong, both in law and morality.
Straightaway it should not be difficult to know that the qualifications for candidates seeking the office of governor of a state are as stipulated under section 182 (1) of the 1999 Constitution as follows:
- Dual Citizenship;
- Two previous terms in office;
- A person adjudged to be a lunatic or of unsound mind;
- Conviction by court or tribunal for death or an offence involving dishonesty or fraud;
- Conviction within ten years of contest for dishonesty or contravention of the Code of Conduct;
- Failure to retire from public service;
- Membership of a secret society;
- Indictment for embezzlement or fraud; or
- Has presented a forged certificate to INEC.
In respect of section 182 (1) (i) relating to forged certificate, it must be that the alleged forgery must have been authenticated by the relevant hand writing analysis experts of the Nigeria Police Force and must be shown to have been masterminded by the governor himself. Clearly therefore, the issue of payment or non payment of tax, cannot invalidate an otherwise valid election. Furthermore, the consequences of a failure, by any public officer, to pay tax, are well articulated in the various tax statutes. In this case, it is said that one of the documents furnished by the governor was said to have been forged because it was issued on a Saturday.
Under the Public Holidays Act, all days are working days except the ones specifically declared as public holiday. Indeed section 1 of the said Act states public holidays as New Year’s Day, Good Friday, Easter Monday, Workers’ Day, National Day, Christmas Day, Id el Fitr, Id el Kabir, Id el Maulud or any other day so declared by the President or Governor.
Nullification of official acts
So, Saturday and Sunday are not public holidays to nullify official acts done on those days. This was why the former governor of Lagos State, Babatunde Fashola, a Senior Advocate of Nigeria, signed the appropriation bill of Lagos State on a Sunday. So the fact that a document is signed and dated on a Saturday or Sunday, does not of itself alone, render it invalid.
In any case, any mistake occurring upon a document issued by the Abia State Government, cannot be blamed on the beneficiary of the document itself. The issue of tax evasion or tax default is a matter to be resolved between the citizen and the government, being one affecting revenue. I cannot see how that can lead to the annulment of the votes lawfully cast by the people of Abia State, for their choice of governor.
Section 24 (1) (f) of the 1999 Constitution, which enjoins citizens to pay tax, is part and parcel of Chapter 2 of the 1999 Constitution, under the directive principles of state policy. The chapter is a policy statement, for both the government and the citizens and thus, they are not meant to be enforced by any court. This is clearly stated in section 6 (6) (c) of the Constitution, directly dealing with the powers of the courts. Section 24 (1) (f) is therefore non justiciable and cannot be the basis of nullifying the election of any public officer. It is clearly unenforceable and cannot form the basis of the judgment of any court created under the Constitution.
The other point that makes the judgment totally unacceptable is that it is totally against the tenets of democracy and the rule of choice, for courts to be supplanting pubic office holders that have been conferred with a sacred mandate by the people. This is why matters relating to elections have been limited to election petitions, so that it is only those who canvassed for the votes of the people that should expect to enjoy their mandate. The courts should not be imposing leaders on the people, to annul their mandate, through judgments that have no bearing with and cannot be traced to the votes cast.
Furthermore, this is a case that has been fought and won, even up to the highest court of the land, the Supreme Court. So if one may ask, where was Mr. Ogah, in all of the time that the governorship election of Abia State was in the tribunal, in the Court of Appeal and in the Supreme Court? Was it today that he got to know of the forged certificate? How will a High Court turn around to annul a mandate already confirmed by the Court of Appeal and the Supreme Court, the latter being the highest court of the land?
Presumably, the people of Abia State will be losers in this contest. Investment decisions will be placed on hold, there will now be some kind of uncertainty in policy decisions of the State, until the case is finally decided by the Supreme Court. It is a needless distraction for governance, the State having gone through the rigours of an election petition, up to the Supreme Court.
The worrisome part of this whole drama is the sentiment gaining ground that this may just be the clandestine ploy of the ruling party to entrench a one party state, as it is already being speculated that upon his swearing-in, Mr Ogah will immediately defect to the ruling APC, citing the present factionalisation between Modu Sheriff and Ahmed Markafi. Surely this cannot help our democracy, and it is gratifying that it is all a matter of speculation and conjecture.
We must get to a stage when we must give due respect and honour to the wish of the people as expressed during the election. Section 221 of the Constitution gives the electoral mandate to both the political party and the candidate, such that when the people have exercised their vote for a particular candidate as their choice of leader, such must not be removed through the backdoor under the guise of post election litigation. It is totally unacceptable, as that will become some form of judicial terrorism, for the court to sit over an election conducted over a year ago, to be annulling it, in the name of judicial exercise.
The judge in this case must be leveraging on the Supreme Court decision in Amaechi’s case, whereby Celestine Omehia was asked to surrender his mandate to Rotimi Amaechi, as governor of Rivers State. The difference in the two cases is that Amaechi won the PDP governorship primary fair and square, unlike in this case, where Ogar came second, behind Ikpeazu. So Ogar was not the choice of the party and he was not the choice of the people of Abia State and so he cannot be the choice of the court, against the wish of Abia people. I trust that in no time, the appellate courts will correct this judicial anomaly and restore the mandate of the people of Abia State, to its rightful owner.
Ebun-Olu Adegboruwa, is a legal practitioner and human rights activist and managing partner of Adegboruwa and Company.