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Andy Uba's Judicial Adventurism

By: Lawrence Chinedu Nwobu - Published 2009-11-06

In Nigeria’s recent history, judicial abuses in the form of frivolous court verdicts has led in great part to the fall of governments and thereby nurtured the general trend of instability that continues to haunt the nation. It is thus in this light that Andy Uba’s appeal court charade in an issue that has been rested by the Supreme court, deserves further scrutiny, because of its potential to truncate Nigeria’s nascent democracy and further the image of the nation as a failed state.

It should be recalled that the court injunction by Justice Bassey Ikpeme of the Abuja high court on June 10, 1993 which granted a motion brought by the then ABN (association for better Nigeria) restraining the then national electoral commission (NEC) from conducting elections in spite of the ouster clauses in Decree 13 of 1993 and Decree 19 of 1987 played a great role in instigating the confusion and crisis that eventually led to the invalidation of the June 12 elections.

The interim national government (ING) headed by Chief Ernest Shonekan which was created in the aftermath of the cancellations of the June 12 election as a stop-gap to achieving a measure of stability following the June 12 crisis and in organising elections was also truncated by the November 10,1993 ruling by Justice Dolapo Akinsanya of the Lagos High Court which declared the interim national government (ING) illegal. This ruling set the stage for General Sanni Abacha’s overthrow of the interim national government.

Dr Andy Uba’s case at the Enugu appeal court where he is seeking to be declared governor in waiting in an issue since settled by the Apex court is a crass judicial abuse reminiscent of the court processes that plunged the nation into a protracted political crisis since 1993 from which she is yet to recover.

The facts of the matter as established are that; Andy Uba was in 2007, declared winner of an election which in itself was mired in controversy. Peter Obi the incumbent governor after seeking several reliefs from lower courts had gone to the Supreme Court to interpret section 180(2) of the 1999 constitution and therefore his tenure of office. On the 14th of June 2007, the Supreme Court gave its verdict. The supreme court judgement expressly declared that “ the office of the Governor of Anambra State was not vacant as at 29th May, 2007, that the tenure of the office of the appellant (Mr. Peter Obi) as Anambra State governor, which is four years, will not expire until 17th March, 2010 for the reason of the fact that he, being a person first elected as Governor under the 1999 Constitution, took Oath of Allegiance and Oath of Office on the 17th March, 2006, that the 5th Respondent (now Applicant), Dr. Emmanuel Andy Uba, should vacate the office of the Governor of Anambra State with immediate effect to enable the Plaintiff/Appellant, Peter Obi, to exhaust his term of office.”

The Supreme Court verdict even to a layman is clear enough. If as the Supreme court ruled there was no vacancy as at when the election was held, whose implication obligated Mr Andy Uba to vacate the office of governor, it is then obvious beyond all doubt that whatever election conducted was done illegally and therefore null and void. A further implication is that an election conducted when there was no vacancy did not comply with section 178(2) of the constitution. For the avoidance of doubt, section 178 (2) of the constitution clearly establishes that “An election to the office of Governor of a state shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office”.

This section clearly stipulates the time frame for the conduct of an election, and specifically used the word “before the expiration of the term of office of the last holder of that office”. The wordings of section 178(2) is specific as it concerns expiration of tenure of the last office holder before any election can be validly held. When reconciled with the Supreme court judgement which declared that Peter Obi’s tenure of office will not expire before 17th of march 2010, it further establishes beyond all reasonable doubts the nullity of Andy Uba’s election.

Andy Uba’s election held in 2007 for the office of governor of Anambra state, when the tenure of office of Peter Obi as governor of Anambra state which began on the 17th of March 2006 for a four year tenure to expire on the 17th of March 2010 as established by the Supreme court is at variance with section 178(2) that stipulates the conditions under which a valid and legal election must be held. It is clear that the conditions which stipulates the conduct of an election not earlier than sixty days and not later than thirty days before the expiration of the tenure of office of the last office holder was not complied with. The supremacy of the constitution necessarily dictate that Andy Uba’s election or any election for that matter held in breach of the constitutional provisions as established in section 178(2) is automatically null and avoid.

The Supreme Court was clear in its judgement, and the constitutional meaning of vacancy is sufficiently established in section 178(2) of the constitution. Andy Uba’s Plea to be declared governor in waiting is thus the height of judicial abuse. “A governor in waiting” as he seeks to be declared is unknown in Nigeria’s constitution as it would technically mean that there were two governors at the same time. In other words, it would mean that at the same time that there was a governor in Anambra state exercising his tenure of office, another governor for the same office of Anambra state legally existed. Such a scenario where there can be two governors or indeed two presidents at the same time in whatever guise was never envisaged and does not exist in Nigeria’s constitution.

Once again, let me repeat for emphasis that declaring Andy Uba Governor in waiting to the same office of governor of Anambra state that stemmed from an election in 2007 while Peter Obi’s tenure as governor of Anambra state which according to the Supreme Court judgement was never vacant in the first instance, technically means that Anambra state has two governors at the same time. This is a scenario that does not under any form or definition exist in Nigeria’s 1999 constitution.

Furthermore, Peter Obi at the expiration of his four year constitutional tenure, has the constitutional right to seek a further four year tenure and therefore to seek re-election to that effect. Any judgement to the contrary would deny Peter Obi his constitutional right to seek re-election. Andy Uba’s plea can only therefore be actualised through a coup or a Decree to be invented by the Enugu Appeal court.

To buttress the point further, if a man for example marries a second wife in a European country where marrying more than one wife is not legally allowed while he had not formally nullified or divorced his first wife, will his marriage to the second wife be valid when there was no vacuum? The principles of common law and indeed common sense dictates that since he is not legally allowed to marry more than one wife at the same time the marriage to the second wife will be automatically illegal and a nullity as he had not divorced his first wife before marrying the second. Indeed the man even risks going to jail under the penal code in Europe for marrying a second wife illegally when his marriage to the first still subsisted. And to the extent that the second marriage was nullified, the man would naturally seek to legally commence anew a process to marry afresh the second woman, and not declare her “a wife in waiting” on the basis of the nullified marriage for which he might possibly have gone to jail.

This is the same scenario that applies to the Andy Uba case. Based on the Supreme court judgement and the stipulation of section 178 (2) of Nigeria’s constitution, a valid election can only be held not earlier than sixty days and not later than thirty days before the expiration of Peter Obi’s constitutional tenure on the 17th of march 2010. Andy Uba rather than continuing to abuse the judicial process by seeking through an unconstitutional means to be illegally declared “governor in waiting,” a scenario which is capable of truncating Nigeria’s nascent democracy, should rather avail himself of the opportunity to participate afresh in a valid election since proposed by INEC to hold on the 6th of February 2010.

The judiciary must understand their importance in safeguarding democracy and avoid being high jacked, intimidated or bribed into giving a judgement that could consolidate the nations image as a failed state in the eyes of the world, cause severe crisis and even truncate the nascent democracy.

Comrade Lawrence Chinedu Nwobu

Email: lawrencenwobu@yahoo.com

Article Source: http://nigerianarticles.com

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