Fayose's Journey in Futility

Ekiti State governor, Ayodele Fayose has declared his intention to seek an extension of his tenure beyond 2018. In view of the plethora of authorities which render such adventure a waste of resources, Davidson Iriekpen asks why the governor wants to embark on a futile mission

Ekiti State Governor, Mr. Ayodele Fayose, last week stirred the hornet’s nest when he said he might seek an extension of his tenure beyond 2018 in court. The governor, whose posters have already adorned the streets of Ekiti, stated that since his first term of four years was truncated through an illegal impeachment, it was necessary that he was allowed to complete it now.

He was first elected governor in 2003 on the platform of the Peoples Democratic Party (PDP) after he defeated Niyi Adebayo of the Alliance for Democracy (AD). On October 15, 2006, about seven months to the end of his first four-year term, he was controversially impeached by the state House of Assembly. Having lost his immunity, and with threats of arrest staring him in the face, he fled the country to an undisclosed country. He suddenly resurfaced in November 2008 into the waiting hands of the Economic and Financial Crimes Commission (EFCC) which charged him to court over allegations of corruption.

The case dragged on to 2014 when he contested for the governorship election again and defeated the incumbent, Dr. Kayode Fayemi.

In the 2007 general election however, Segun Oni of the PDP was declared winner by the Independent National Electoral Commission (INEC) as governor of the state and sworn in on May 29, 2007.

After about three years of litigation, the Court of Appeal in 2010, nullified Oni’s election and Kayode Fayemi of the defunct Action Congress of Nigeria (ACN) was sworn in as governor. However, Fayose again contested in 2014 against Fayemi who was seeking a re-election for another term. INEC declared him winner and in October 2014, he was sworn in as governor.

Even though Fayemi refused to challenge his victory at the tribunal, his party, the All Progressives Congress (APC) did. One of the grounds the party hinged its suit on was that Fayose was not eligible to contest the election in the first place since he was removed from office via impeachment. Of course, the governor won the case at both the tribunal and the Court of Appeal.

On appeal to the Supreme Court, the APC again raised the issue of Fayose’s impeachment. In its judgment, the apex court in April 2015, held that impeachment was not a ground for disqualification citing section 182(1)(e) of the constitution which listed the grounds for disqualification.

Justice Sylvester Nwali Ngwuta who delivered the lead judgment held that only a court of law or the Code of Conduct Tribunal could find a person guilty before such a person would be disqualified from standing election for ten years.

The court held that the proper thing to have done after Fayose was impeached was to charge him before the Code of Conduct Tribunal and that having not done that, he was not barred from re-seeking election as governor of ‎Ekiti state.

Besides, the court held that since the first panel constituted by the then Chief Judge of the State, cleared Fayose of any wrong doing, the matter ought to have ended there in accordance with the section 188 ‎(8) of the constitution.

‎According to the justices, the constitution of another impeachment panel by the Acting Chief Judge of the State, Justice Jide Aladejana (who was later dismissed by the National Judicial Council) was an illegality.

Explaining why he chose to put his picture in the campaign posters currently circulating in Ekiti, Fayose said since the apex court said his impeachment in 2006 was illegal, he was entitled to approach the same court to interpret what that ruling meant.

“The continuity poster you see my image in and which is spreading across the state can be interpreted in two ways. First, is the need for me to ask the apex court to explain its 2015 ruling that my so-called impeachment in 2015 was illegal, null and void and consider a re-election in 2018 so that I can complete my term. Second is for me to get our own man, one who is like Ayo Fayose to continue after my tenure in 2018,” he said.

Legal experts, however believe that Fayose does not stand a chance in view of previous judgment of the Supreme Court in the case of Governor Rasheed Ladoja v INEC, when the appellant (Ladoja) wanted an extension of his term of office to allow him to spend extra 11 months while he was fighting his impeachment from outside. Though, the court set aside his impeachment, it was held that the relief was illegal and unconstitutional. They wondered if the court did not allow Ladoja who was returned to office after 11 months to enjoy tenure elongation why should it be Fayose who is seeking the same gesture over 10 years after.

The observers also drew his attention to the case of the five governors who were re-elected after their initial election was annulled, where the court equally made it clear that tenure extension was unknown to the constitution.

Just like the reactions Fayose was expecting the issue to generate, lawyers in the country are already expressing different opinions on the issue. While Femi Falana (SAN), Emeka Ngige (SAN); Sebastine Hon (SAN); Paul Ananaba (SAN) and a Lagos-based legal practitioner, Jiti Ogunye, argued that Fayose’s bid was unconstitutional and bound to fail, another senior lawyer, Chief Mike Ozekhome, believes the court could grant Fayose the opportunity to serve out the seven months remaining in his first term before he was impeached.

For instance, Falana described the governor’s intention as anomalous, saying the bid would amount to a tenure elongation which no court could grant.

He said: “Tenure extension by a governor under any disguise is anomalous. No court can prolong the tenure of a sitting governor barring the two terms prescribed by the constitution. In the case of Governor Rasheed Ladoja v INEC, the appellant wanted an extension of his term of office to allow him to spend extra 11 months while he was fighting his impeachment from outside.

“Although the Supreme Court had set aside his impeachment, it was held that the relief was illegal and unconstitutional. Similarly, the governors who were re-elected after their initial election was annulled, the Supreme Court made it abundantly clear that tenure extension was unknown to the constitution. In view of the settled position of the law on the matter, Fayose cannot be granted by any court in Nigeria.”

On his part, Ngige argued that antecedents showed that the court could not grant the request of the governor. He added: “My own understanding is that based on the Supreme Court decisions on former governor Peter Obi versus INEC, and former governor Ladoja against the state House of Assembly, Fayose is not eligible to contest another term.

“The then Oyo State governor had complained to the court about his impeachment by the state House of Assembly, which truncated his tenure, and later voided, and sought to extend his tenure by the number of days to reclaim his mandate; but the Supreme Court told him pointedly that it was not possible.

“The same thing applies to Fayose. He had taken an oath of office, whether rightly or wrongly but he was impeached along the line and later, the impeachment was voided by the court. But that is not to say that the tenure did not run.

“However, I think the governor is perfectly entitled to seek judicial interpretation of his eligibility to contest another term of office. It is a democratic sense to do that. He can try his luck.”

Hon also agreed citing the cases of Ladoja and Obi.

According to him, the apex court had settled the issue that wrongful impeachment could never serve as grounds to extend a statutorily defined term of office. He contended that the Supreme Court would not likely to overrule itself if Fayose approached the court.

Hon said: “The four years which a governor is entitled to for a term cannot be broken just because of impeachment or because the election of somebody was nullified and the person was outside and later came back. Those issues have been settled by the Supreme Court and I don’t see the court overruling itself and I don’t think Fayose has any right to come back under the law.”

Ananaba also said Fayose could not seek re-election, having taken the oath of office for the office of the governor twice. Although Ananaba said it was an issue that should be tested in court, he expressed doubt whether Fayose was actually serious about seeking re-election.

He added: “The issue is whether he has taken the oath of office for the position of a governor twice. If the answer is no, then he can seek re-election but if the answer is yes, he cannot seek re-election.

“But I think it is a matter that should be tested in court. Although I’m aware that that certain principles have been settled, the law is being developed every day. But I don’t think he actually wants to run.”

However, Ozekhome who has been Fayose’s lawyer lately, said if the governor could convince the court, he might be compensated for seven months to fulfill his constitutional two terms.

He said: “The truth is that if I remember carefully, Fayose won the matter that his impeachment was illegal. And if it was declared illegal by a court, it means then that it never was. If a competent court declared the impeachment as null and void, it then means that the seven months for which he was impeached were illegally taken from his two terms. Therefore, I will say that where there is a right, there is a remedy.

“So, once Fayose can prove that he was illegally removed and that illegality has been confirmed by a court of law, it means that in the eyes of the law, he was still a governor but was prevented from acting during the impeachment. He can therefore seek for recompense for those months to enjoy the unexpired residue of seven months for which his governorship was truncated.

“Fayose may have said the statement as a politician to fly a kite, but I can assure you that he has touched on something of serious constitutional import. Fayose is not looking for four years, but seven months. In the worst scenario, he can be entitled to only seven months which was taken from his first term.”

Ogunye, on his part, advised Fayose to talk to his lawyers so that he could be properly guided in his ambition. He noted that the constitution did not make provision for an extension when a governor’s tenure was truncated to allow such person to contest and make up for the lost time.

He said: “Assuming he wins the election in 2018, will he then govern mathematically or arithmetically up to the month or the year when his first term was truncated?

“The little law that I know, in the case of Obi and INEC, in relation to the provision of the constitution on tenure and the qualification to contest a governorship seat, if you were elected into office twice and has taken the oath of office twice, the emphasis is on being elected twice and being sworn into office twice, you will not be able to contest another term. The constitution does not provide for a truncated tenure to enable a person, whose tenure is truncated, to come back and have another bite at the cherry.”

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While Femi Falana (SAN), Emeka Ngige (SAN); Sebastine Hon (SAN); Paul Ananaba (SAN) and a Lagos-based legal practitioner, Jiti Ogunye, argued that Fayose’s bid was unconstitutional and bound to fail, another senior lawyer, Chief Mike Ozekhome, believes the court could grant Fayose the opportunity to serve out the seven months remaining in his first term before he was impeached.