AMAECHI VS OMEHIA: Waiting for the Supreme Court

19 Jun 2013

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Governor Chibuike Rotimi Amaechi

The Supreme Court has fixed October 3 to hear the appeal filed by Governor Chibuike Rotimi Amaechi of Rivers State to challenge Celestine Omehia’s attempt to unseat him. Davidson Iriekpen reviews some of the intrigues that pushed the case to the apex court
For Governor Chibuike Rotimi Amaechi of Rivers State, his battle to survive the next two years in office is in many fronts. Last week, it was revealed that the Supreme Court has finally fixed October 3 to hear and consolidate the appeals filed in respect of his re-election that took place in April 2011 as against August 2011. The court also fixed November 11 for the adoption of the briefs of arguments by the parties in the case.

Incidentally, it was Amaechi that went to the Supreme Court. While his appeal was filed to challenge the decision of the Court of Appeal to join the sacked governor Celestine Omehia in the matter, his appeal at the appellate court, the second, was filed by his Legal Adviser, Chief Cyprian Chukwu against Omehia on the same grounds.

THISDAY checks revealed that part of Omehia’s motion at the apex court was a plea for it to hear the appeal once and for all, instead of remitting it back to the Court of Appeal for determination from where it would go back to the Supreme Court.
His argument is that since it was Amaechi that ran to the Supreme Court, allegedly to frustrate the timely hearing of the case, taking the case back to the Appeal Court would amount to taking back the hands of justice.

The substantive case started when the Independent National Electoral Commission (INEC), in 2010 published a timetable for the 2011 general election and the governorship election in Rivers State was slated for August 2011.
INEC’s timetable also affected five other states whose governors then were seeking tenure elongation and were caught up with in the staggered elections which the 2007 electoral disputes foisted on the polity.

INEC’s announcement however prompted Chief Cyprian Chukwu, who was Amaechi’s legal adviser in Port Harcourt, to file a suit at the Federal High Court in Abuja against the governor and INEC, and contended that the date on the commission’s timetable was wrong.
Chukwu’s grouse was that since the Supreme Court decision which brought Amaechi to power in 2007 was that it was the Peoples Democratic Party (PDP) that won the April 2007 governorship election in Rivers State, Amaechi’s tenure started counting on May 29, 2007 and not on October 27, 2007 when he was sworn in after Omehia was sacked.

Within 14 days from the date of filing, service and all other court procedures, judgment was entered in favour of Amaechi by Justice Abdul Kafarati, who in his judgment, back-dated Amaechi’s tenure, and said even though the governor was sworn in on October 26, 2007, his tenure would end on May 28, 2011 or May 2015 as the case may.

His reasoning was that since the Supreme Court said it was the PDP that won the April 2007 governorship election in Rivers State, and not the candidate (Amaechi), the tenure started counting on May 29, 2007 when Omehia was sworn in.

The judge held that the period spent in office by Omehia, who was
sacked by the Supreme Court, formed part of Amaechi’s tenure of four years, adding that it was wrong in law for the governor to expect that his tenure elongation would run till October 2011 because his election of April 14, 2007 under PDP platform was never nullified by any court.

The judge ruled that the Supreme Court in its judgment in October 2007 only asked Omehia to vacate office on account of illegal occupation for the rightful person and never cancelled the poll or ordered any fresh one.

Kafarati said though Amaechi took oath of office and oath of allegiance on October 27, 2007, his tenure started from May of the same year when the PDP government was declared winner of the governorship election. He then ordered INEC to conduct a new election for a new occupant to take over from May 29 of the following year when Amaechi’s four-year tenure would have legally expired.

Dissatisfied with the judgment, Amaechi and INEC appealed against the judgment at the Court of Appeal in Abuja. While INEC had every reason to appeal the suit, not many analysts understood the basis for Amaechi’s appeal, knowing full well that it was his call.
However, Omehia who had unsuccessfully tried to get the Supreme Court to review its decision sacking him from office got another opportunity by applying to be joined on the appeal the same time in 2010. Besides, he was considering taking another shot in the August 2011 governorship election.

Nevertheless, his application for joinder was subsequently granted by the appellate court after a long delay, which consequently ordered parties to file their briefs of arguments, and be ready to adopt their same and prepare for judgment.

Not satisfied with his decision, Amaechi headed for the Supreme Court to set aside the decision on the grounds that Omehia was not an original or proper party to be joined. Chukwu also later followed with an appeal to the Supreme Court on the same grounds.
Yet when Kafarati delivered the judgment in favour of Amaechi in 2010, it raised concerns. Even though his counsel, Mr. Lateef Fagbemi (SAN), had indicated that he would appeal the decision, there were beliefs that the governor did not mind the verdict especially that it provided a leeway to overcome the threats supposedly posed by the opposition to his re-election in 2011.

For those who have been following the politics of the state, the cold war between President Goodluck Jonathan and Amaechi started way before the 2011 elections and not about the 2015 elections.
Thus, sensing that he could not trust President Jonathan with his reelection ticket after he (Jonathan) must have become president in 2011, Amaechi therefore opted for the suit and preferred that his election should come at the same time that other governors' elections were held.

That way, he also benefitted from the general endorsement granted the governors by Jonathan, as a condition to support him during the PDP presidential primaries. The belief was that Amaechi was concerned about the contrived opposition against him in the state and thought it was politically inexpedient to go solo in the election.
This school of thought also believed that if the governor gone for the August 2011 election alone, he would not be able to properly contain the avalanche of forces against him. Besides, the tendency that Jonathan might turn against him and deploy federal might to oust him was high.

Those who shared this belief alluded to some of the current happenings in the state where the governor is said to have been technically stripped of control of the security agencies in the state so much that the First Lady, Patience Jonathan, is alleged to be unilaterally changing the state’s police commissioner at will.

But those in the former’s school wondered that if the governor did not originate the case, why did he not challenge the powers of the court to hear a case especially when the judgment backdated his tenure? They also wondered that knowing the governor’s antecedence as a fighter, why would he allow a judgment to be given against him so cheaply.
They equally questioned why the case went to Abuja when the person who went to court was the Rivers State Legal Adviser of PDP and based in Port Harcourt, where there is a Federal High Court.

Many analysts have faulted the judgment by Kafarati.  First, was its contradiction with the case of Governor Peter Obi of Anambra State versus INEC where the Supreme Court, while sacking Andy Uba, berated INEC for conducting election into an office that was never vacant and held that the tenure of a sitting governor starts the day he was sworn-in.
Analysts held that since Amaechi was sworn on October, 27, 2007, his tenure should have ended on October, 26 2011 and not May 28, 2007 as held by Justice Kafarati.

Part of their argument also was that if the opposition that was trying to unseat Amaechi had got wind of the suit, it would have challenged it on the grounds that in the case involving Peter Obi vs Andy Uba, INEC and others, the Supreme Court held that a governor’s tenure irrespective of which party he rode to power, starts to count the day and date he was sworn in.
Another angle to the argument is that since the Supreme Court judgment that brought Amaechi to power on October 27, 2007, it was PDP that contested and won the election with Amaechi as its candidate, having won the primaries; therefore, it is the candidate that should be sworn-in, and that the candidate’s tenure should have started to count the day he was sworn-in.

Analysts faulted the judgment further when compared with other judgments of the same Federal High Court, particularly the judgment of a Federal High Court in Gusau which upheld the defection of then Governor Aliyu Shinkaffi of Zamfara State, who defected from the All Nigeria Peoples Party (ANPP) to the Peoples Democratic Party (PDP), a platform he rode to Government House in 2008.
Also, attention was drawn to Imo State where then governor, Chief Ikedi Ohakim, who contested and won election on the platform of the Progressive Peoples Alliance (PPA), later defected to the PDP and still maintained his position.

Their argument was that if it was the parties that contested the elections, they should have been made to vacate the seat since it was the ANPP and PPA that won the elections and not PDP. The same thing, they stated, should have applied to Abia, Bauchi and other states where some governor defected from their original parties after winning elections in their respective states.

In these two examples, analysts argued that since the governors defected from the original parties on which they won elections, why did the court not make them lose their positions on the grounds that it is the political party that wins elections in Nigeria and not the candidate?

Perhaps, what Karafati did not tell Nigerians going by his logic was: Can anybody take an oath of office on behalf of another person? Or can an inanimate object (the PDP) take oath of office? In the eyes of the law, shouldn’t Amaechi’s tenure have started counting from the day he was sworn-in? This provides yet another interesting challenge for the Supreme Court.

Interestingly, for legal scholars, the Supreme Court ruling on the matter in October would be nothing other than an academic exercise, just like it did in the case of Ekiti State governorship crisis between Governor Kayode Fayemi and Segun Oni.
But for what they described as technical mischief which is being latched on to by opposition to Amaechi, the case, legal scholars contended is as comprehensible for the layman as it is for the legal luminaries and that as such, no amount of anxiety or antics built up to the October 3 ruling would change the legal literature that naturally would determine the court ruling.

Tags: Nigeria, Featured, Politics, Rotimi Amaechi

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