By Dayo Benson &Okey Ndiribe
LAGOS—PROMINENT lawyers including two former presidents of Nigerian Bar Association, NBA, Chief Wole Olanipekun, SAN, and Rotimi Akeredolu, SAN, yesterday, rose in support of the Independent National Electoral Commission, INEC, to conduct 2011 Governorship Election in 32 states in January, excluding Edo, Ondo, Rivers and Anambra States.
They said the commission’s decision was perfect and in order, noting that anything contrary will amount to fraud and a negation of the spirit of democracy.
Chief Wole Olanipekun, SAN, said: “INEC is perfectly in order and it is acting in tandem with the spirit of the Constitution and the tenet of democracy. In the case of Ekiti, I am surprised that the Ekiti governor is joining other governors to protest because his own case is different.
“There was only a re-run in two local governments so that means the Court of Appeal accepted the remaining results, and now he wants extension for two years. If it is allowed it will be fraudulent and antithetical to every law of democracy.”
Immediate past President of NBA, Rotimi Akeredolu, SAN, in his submission said the decision of INEC to restrict the tenure of the affected governors to four years was correct.
He said: “The tenure of the affected governors should begin when they took their first oath of office. This is backed by Section 180 (2) of the 1999 constitution.”
He maintained that if the affected governors didn’t like the decision of the electoral commission, they could go to court.
Also speaking, Lagos lawyer, Mr. Bamidele Aturu said: “As far as I am concerned, INEC has reached a correct decision but unfortunately, it has arrived at that decision on the basis of a wrong premise or reason. The premise is the amended constitution that they are relying on, the procedure of the amendment and the fact that the President has not signed it, (S.180(2)(a).
“As far as I am concerned, the interpretation of S.180(2)(a) of the Constitution regardless of the illegal amendment by the National Assembly, does not support the contention or position that a governor who won a general election and whose election was nullified but later subsequently won a re-run would start a tenure from the date of the re-run.
“So, because S.18 (2)(a) uses the word first elected, the tenure would start when he was first elected not when he won the re-run. So, INEC does not need to use illegal amendment to justify its decision because it would be unreasonable to expect that a man would be in office perpetually just because his election is being challenged. That will be encourage rigging and discourage people from going to court to challenge such elections.”
In his comments, Mr Jiti Ogunye, who also endorsed the decision of INEC pointed out that apart from the recent Federal High Court judgment on the tenure case which was filed by Governor Segun Oni of Ekiti State in which the court held that his tenure would not be extended, there was no other contrary judicial pronouncement on the matter.
He said: “So, the Jos Federal High Court decision still stands especially because section 287 of the constitution provides that decisions of courts are binding on authorities of government at all levels.”
He also advised any governor who didn’t like INEC’s decision to go to court.
In his reaction, Dr. Sam Amadi said that considering the constitutional provision on the matter which stipulates that a governor’s tenure should begin when he took his oath of office, the best approach to adopt in arriving at a sound conclusion on the issue is that of applying the position of pure law and that of legal policy.
He explained that if the issue was considered from the perspective of pure law alone, the affected governors who are demanding that their tenure ought to begin when they took their second oath of office would be justified in their position.
But he explained that if the matter was viewed from the perspective of legal policy, the position of INEC would be justified since it must have been taken to apply the actual intention of the law.
Amadi said: “INEC must have taken this stand in order to prevent mischief makers who might want to exploit the law in order to extend their tenure in office which would amount to a negation of the original intention of the law.”
He further maintained that the position is correct since it was backed by the Electoral Act.