The Tenure Elongation Case

Onnoghen JSC identified the main issue for determination thus

It should be noted that the main issue for determination from the trial court to this court remains when does the four year tenure granted by the Constitution to state governors particularly the 1st respondents in the appeals start to run: Is it from the 29th day of May,2007 when they took their first Oaths of Allegiance and Office following the 2007 general elections which they were declared winners or the dates in 2008 when they took their second Oaths of Allegiance and Office following their winning the re-run election ordered by the courts as a result of the nullification of their earlier election.

His Lordship opined and I respectfully agree that

The above issue is of great constitutional importance and does not deserve to be trivialized.

Apart from the fact that this was a very pertinent point to make, his Lordship particularly made this point in response to interlocutory matters raised by way of preliminary objections to the substantive suit. It is my view that this is an extremely important point that was being made by the court. Counsel arguing cases before the final appellate court especially in constitutional matters must understand that the court is fundamentally a court of policy. There is a need to concentrate on fundamental issues of substantive law and the interpretation of the constitution rather than dwell on procedural and adjectival law which does not necessarily add to the real value of law and policy.

The Relevant Constitutional Provisions

The relevant Constitutional Provisions are as contained in Section 180(1)(2) & (3) of the 1999 Constitution. The Section provides thus:

“180 (1) Subject to the provisions of the Constitution a person shall hold the office of governor of a state until:-

(a) When his successor in office takes the oath of that office; or
(b) He dies whilst holding such office; or
(c) The date when his resignation from office takes effect; or
(d) He otherwise ceases to hold office in accordance with the provisions of this Constitution.

(2) Subject to the provisions of subsection (1) of this section, the governor shall vacate his office at the expiration of a period of four (4) years commencing from the date when:-

(a) in the case of a person first elected as governor under this Constitution, he took the Oath of Allegiance and Oath of Office, and
(b) the person last elected to that office took the Oath of Allegiance and Oath of Office or would, but for his death, have taken that oath.

(3) If the Federation is at war in which the territory of Nigeria is physically involved and the President considers it is not practicable to hold elections, the National Assembly may by resolution extend the period of four (4) years mentioned in subsection (2) of this section from time to time, but no such extension shall exceed a period of six (6) months at anyone time”.

The court of first instance and the Court of Appeal held that the relevant point at which the four year tenure of the governors is to be calculated is the date they took their second oaths. The reasoning of the courts turned upon the literal interpretation of Section 180(1)(2) & (3) of the Constitution. The Supreme Court referred to the decision of the Court of Appeal . There the Court of Appeal stated thus:

“The salient point that should be noted in the provisions of the subsection is that a person must have first been chosen as governor in the process of an election which complies with and satisfies the provisions of the Constitution before the provisions would be applicable to the tenure provided therein.

Consequently, the provisions would not apply to a person chosen by the process of an election which was not conducted or held in compliance or accordance with the provisions of the Constitution.

The constitutional provisions cannot be said to contemplate or envisage application to any election which did not comply with or was conducted or held not in accordance with the relevant provisions of the Constitution. Put another way, it is not within the purview of the provisions that the election to which they were applicable would be one or the process of which was not conducted in obedience to the relevant provisions of the Constitution. Election conducted and held in compliance or accordance with the provisions of the Constitution is therefore the foundation the basis and the platform upon which the application of the provisions of the subsection can be premised. Being the grund norm it would be preposterous to suggest that its provisions would envisage that they are applications to any other type of election other than the one conducted or held in compliance with its provisions.

In this regard, only the Oaths of Allegiance and Office taken by a person chosen in the process of an election which complies with or was in accordance with the provisions of the Constitution would be relevant for the purpose of computing the tenure of office of a governor under the provisions of Section 180(2). Oaths of Allegiance and of Office taken in respect of an election which was conducted or held not in accordance with the provisions of the Constitution would not be oaths taken by a person first elected as governor under the Constitution.

In Interpreting Statutes and constitutional provisions, courts have overtime developed aids and canons of interpretation. The main authority in the Nigeria jurisdiction is the case of A.G. Bendel v AGF & Others .

The canon of interpretation referred to therein by the Supreme Court developed over time in the Common Law jurisdictions especially in the United States where they have a written Constitution. The Court per Obaseki JSC in A.G. Bendel v AGF & Others laid down 12 canons of interpretation as it relates to constitutional interpretation. Onngohen JSC in this tenure elongation case said:

“Over the years the Supreme Court has deviced guidelines to the interpretation of not only statutes but most importantly our constitutional provisions, including the now famous twelve (12) point rule of constitutional interpretation propounded by Obaseki, JSC”.

The canons of interpretations laid down by the Supreme Court per Obaseki JSC are:

“(a) Effect should be given to every word used in the constitution.
(b) A construction nullifying a specific clause in the Constitution shall not be tolerated, unless where absolutely necessary.
(c) A Constitutional power should not be used to attain an unconstitutional result.
(d) The language of the Constitution, where clear and unambiguous must be given its plain and evident meaning.
(e) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety hence a particular provision should not be severed from the rest of the Constitution.
(f) While the language of the Constitution does not change the changing circumstances of a progressive society for which it was designed, it can yield new and further import of its meaning.
(g) A Constitutional provision should not be construed in such a way as to defeat its evident purpose.
(h) Under the Constitution granting specific powers, a particular power must be granted before it can be exercised.
(i) Declaration by the National Assembly of its essential legislative functions is precluded by the Constitution.
(j) Words are the common signs that men make use of to declare their intentions one to another, and when the words of a man express his intentions plainly, there is no need to have recourse to other means of interpretation of such words.
(k) The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its provisions.
(l) Words of the Constitution are, therefore, not to be read with “stultifying narrowness”.

The issue for determination in this case generated a lot of anxiety within the polity and especially amongst those governors and states directly affected. The issue however was not that complex. It turned upon the construction to be given to Section 180(1)(2) & (3) of the 1999 Constitution. The most pertinent of these sections is Section 180(2)(a).

The language of the provision appears to create room or rather created room for differing and different interpretations. The parties directly affected and whom will benefit from an interpretation to elongate their tenure in office (the governors) interpreted Section 180(2)(a) to mean that their term of office commenced upon their taking of a fresh oath of allegiance and oath of office. This meant that although they had been in power for a year or more prior to the order of the election tribunals for a re-run election, their stay in power will be extended having won the re-run elections.

The Independent National Electoral Commission (INEC) was of the view that the four year term was static and it could not be extended especially in this particular case where the parties (governors) that won the re-run elections had all been previously elected. They canvassed what can best be described as the intent of the framers (even though they did not quite put it in this way).

The problems faced by the courts and counsel when dealing with the interpretation of statutory and particularly (in this case) Constitutional provisions, is that they have to deal with provisions that are enacted that may relate to present, past or futuristic circumstances. Indeed, in many cases, the provisions may have lacunas and circumstances that were not and could not possibly have been envisaged by the drafters of the statutes or the framers of the Constitution. Courts and lawyers overtime have had to rely on canons of interpretation which have been extremely helpful and have become handmaids in the interpretative process. These canons are varied but with regard to the Constitution and particularly the Nigerian Constitution, it is fair to say that the decision of the Supreme Court in A.G. Bendel v AGF & Others (supra) has assumed a locus classicus status and has become the starting point when dealing with the interpretation of the Constitution.

The question is what is the true meaning of Section 180(2)(a)? I think there is really no right answer to that in view of the differing factual circumstances that different interpretations can lead to. What the court strives to achieve and indeed what the Supreme Court in this particular case was striving to achieve in my humble opinion is an adequate answer. The Court of Appeal reasoned that the words “in the case of a person first elected as governor” in Section 180(2)(a) meant that a person who was duly elected in law. Therefore a person whose election was nullified could not have in law been first elected as envisaged by this provision. In my humble opinion, this is a sound proposition. If the literal meaning is followed that is “effect given to every word used in the Constitution” or indeed “the language of the Constitution being clear and unambiguous”, there is no reason why a court of law could not possibly arrive at the decision the Court of Appeal arrived at.

This is given more force by the fact the no governor can legitimately commence work as governor without taking the Oath of Office. Indeed, the Supreme Court at page 40 of its judgment said: “It is therefore clear and I hereby hold that the second oath of allegiance and of office taken in 2008, though necessary to enable them continue to function in that office, were clearly superfluous in the determination of the 4 year tenure under Section 180(2) of the 1999 Constitution.” With profound respect to the Supreme Court if it is necessary to engage in an act, it cannot be said to be superfluous. They are mutually exclusive. Therefore if it was necessary to take the oath, the oath taking itself must be an imperative, when that is tied to the reasoning of the Court of Appeal, it seems to me that there is a nexus that gives the decision of that court solid foundation in its decision.

However, the Supreme Court being the final court and a policy court has the wisdom to look at such Constitutional problems broadly. The court said:

“To accede to the argument of the Respondents is to bring uncertainty into these clear provisions of Section 180(2) of the 1999 Constitution which will render the tenure of governors indefinite and what it will take an elected governor whose election is nullified to remain in office almost indefinitely or for life is continue to win the re-run elections which would then be nullified to continue the cycle of impunity”

In my view, this is a clear indication of the Supreme Court applying principle 7 stated in AG Bendel v AGF case (supra). “A Constitutional provision should not be construed in such a way as to defeat its evident purpose”. And of course principle 12 which states that “words of the constitution are therefore not to be read with stultifying narrowness”. The court also relied on their decision in Ishola v Ajiboye where Ogundare JSC added 4 points of construction to the 12 points in AG Bendel v AGF (supra). The most relevant point to the subject matter was the first point which stated that “Constitutional language is to be given a reasonable construction and absurd consequences are to be avoided”.

The Supreme Court in this tenure elongation case held that; “from the language used in Section 180 of the 1999 Constitution, it is very clear that the Constitution, intended that a Governor of a state shall have a tenure of four years from the date he took the oaths of allegiance and of office and nothing more. Though he may spend less where he dies, resigns or is even impeached. In all, a Governor has a maximum tenure of eight years under the Constitution”.

In my respectful view, the provision is not so clear. It is actually the use of the aids and canon of interpretation that helps the court to reach a just and reasonable decision.

There were technical legal arguments as to whether the decisions of the governors who erroneously extended their tenure engaged in void or voidable acts. Whether the acts of governance such as administrative functions carried out in that period were all void because in law, they were not supposed to be in office. Very heavy weather was made of this and indeed the court gave this point in my view an undue credence and importance. The court said:

“However when you consider the nature and consequences of an election which produced a winner who was sworn in on the presumption that the election that produced him was regular and legally valid than when that election is set aside or nullified, the nullification is only limited to the election and does not affect acts done while the person occupied that office. In effect, what it all means is that the election that was later nullified was only voidable, not void because if it is to be taken literally as void abinito as is being contended by some of the parties, it means the country would be plunged into chaos as all acts done by the governors must of necessity be null and void and of no effect whatsoever”.

This is a distinction without a difference. There is in my humble view no need for the courts to get caught in the booby trap of void and voidable. These are concepts more apt to Contract Law. In Administrative and Public Law, it is obvious that its application is not practical. It cannot also be lost on the learned minds of the Justices of the Supreme Court that law is prescriptive. Rather than state that the acts of these public officers are voidable, it is safer to say that the concepts of void and voidable do not apply in this particular situation. If you state that the decisions are voidable, this leaves open the possibility of the decisions made by a governor or administrative officer who lacked capacity being challenged legally. This in itself will lead to chaos. It is important to stress that a distinction must be made with situations where public officers act ultra vires or commit errors within their jurisdiction. That is an entirely different proposition.

Problems Presented by the Tenure Elongation Decision

The end result of the decision of the Supreme Court in this case is that elections into the governorship positions in the five states affected ought to have been held in April, 2011. The Court held that the consequence thereof is that the continued tenure of the affected governors without an election in April, 2011 was illegal. The further consequence is that the Independent National Electoral Commission (INEC) should conduct elections into those positions within ninety days of the judgment of the Supreme Court.

The questions thrown up by this decision are, what is the legal position of the situation in Kogi State, where the governor had extended his tenure by one year and elections had just been conducted by the Commission in 2012 to elect a new governor. Indeed, the newly elected governor was just about to be sworn in when the Supreme Court gave its judgment. The effect of the Supreme Court decision is that a new election will be conducted. The situation in Kogi is further complicated by the fact that the Peoples Democratic Party (PDP) had conducted primaries in January, 2011 in preparation for April 2011 General Elections which did not hold. The primaries were not cancelled and another set of primary elections were held in December 2011 pursuant to general elections for the position of Governor of that state in February 2012. The winner of the December 2011 primaries apparently won the February 2012 elections. It is important to stress that the February 2012 elections had become void as a result of the decision of the Supreme Court in this tenure elongation case. It follows that the primaries that was held pursuant to the said elections had also become irrelevant.

The question that follows is what becomes of the primaries held in January 2011 (which was never cancelled). Does that candidate become the flag bearer for the party in the new elections to be held or should the party hold fresh primaries. This whole scenario is further complicated by the fact that if the candidate for the Peoples Democratic Party (PDP) wins the election, will his tenure be four years certain or three years, considering that the person that had elongated his tenure was also a PDP Governor. In this tenure elongation case, the court has held that four years is four years. It is important to stress that if the literal interpretation of section 180(2)(a) of the 1999 Constitution is followed, it means that the newly elected Governors will be in power for four years but there will have been a tenure elongation for the political party because it is the same party that will have produced the persons in power.

In four of the affected states, Bayelsa, Cross River, Sokoto and Adamawa, fresh primary elections were held by the party and the persons that emerged as candidates for the re-run elections ordered by the Supreme Court were the same candidates that had elongated their tenure previously. The questions that arise are, when does their tenure commence, does it commence from the period in office when they were not supposed to be there or does it commence from the date in which they were subsequently elected pursuant to the Order of the Supreme Court.

If one follows the decision of the court, it appears that the tenure of these four governors who were exactly the same persons who held office prior to the court ordered elections will commence from the new date. Note that no elections were held in April 2011 so it cannot be argued that their tenure commenced in April 2011. The ludicrous result is that there has been an extension of tenure achieved by default. Although they were not supposed to be in power legally in the period preceding the decision of the Supreme Court in this tenure elongation case, the cold facts are that they were indeed in power. In effect, although the Supreme Court has reached an adequate result in the circumstances of the case, the factual results thrown up by the ambiguity and perhaps lacuna in Section 180(2)(a) has still produced an absurd result. However, the comfort provided by the present decision of the Supreme Court is that it corrects the problem for future purposes.

There is a powerful distinguishing factor between the factual situation presented in Kogi State and that in the four other states. In Kogi State, the primary elections held in January 2011 in preparation for the April 2011 governorship elections were not in any form or manner cancelled. In the other three states, no primary elections were held and in Bayelsa in particular, the primary elections held were cancelled. There are therefore very strong arguments to the effect that the Peoples Democratic Party (PDP) is bound by the results of the primaries held in January 2011 and that the winner of that primary should be their governorship candidate for the new election ordered by the Supreme Court.

Conclusion

There is no doubt that litigation would arise following some or all of the issues identified above. This is good for democracy. What is certain however is that the Supreme Court has laid down a definitive rule of law regarding Section 180(2)(a) of the 1999 Constitution. The decision though guided by policy captures the spirit of the Constitution. It can and could not have been the intention of the framers of the Constitution to draft a provision that will lead to an ad infinitum tenure for elected officials. Although great legal minds like the United States Supreme Court Judge, Antonin Scalia has argued very strenuously and powerfully that the use of the term intention of the framers is not an efficient tool for interpreting the Constitution. Whilst not wishing to join issue with the great jurist, (indeed that task is not one that anyone should take lightly) it is my humble view that the perversity presented by a literal interpretation necessitates the use of a constructive canon of interpretation.

Disclaimer: The views represented in this article are the views of the author and does not necessarily reflect the view of the law firm.