FAYOSE'S QUEST FOR A THIRD TERM; ANOTHER SHOW OFF OF EXECUTIVE RAPACIOUSNESS

“I don't know the platform I will use for the 2018 election yet and at the appropriate time, I will tell you”  were the exact wordings of the declaration of the Ekiti state Governor, Mr Ayodele Fayose(Oshokomole) purportedly made in preparation for the guber elections of 2018. Just like other state governors who have relentless appetite for unmerited positions that smacks of morality and legality, he had boastfully made the statement  with utmost conviction of usurping the clear provisions of the constitution in seeking for a third term. A proper understanding of the unique nature of elections in Ekiti state would be apropos given the fact that most other states in Nigeria would have their gubernatorial elections in 2019 And the legal impediments to the unnecessary desire for power by the self declared Lord of the Yoruba race.

Governor Ayodele Fayose sought and obtained the ticket of the people's Democratic party in 2002 to contest the governorship  election of 2003. During such period when the power of incumbency was mightier than the constitution, Fayose, against the run of play, contested and defeated an incumbent governor,  Niyi Adebayo and was subsequently sworn in on May 29th 2003. Also at such moment when house of Assembly members were intimidated to submission by the presidency of Obasanjo, 24 out of the 26 members of the state house of assembly were ferried to the Villa to meet with the president on a perceived plot to impeach Fayose on a ttrumped up allegation that the money meant for poultry were diverted for personal use, 3years after assuming office. When impeachment proceedings were perfected, the 24 members were ferried back to Ekiti, and  amidst tight security, impeached Fayose on 16th October 2006, 11 months to the completion of his tenure. As against the agreement reached with Obasanjo, the house members equally impeached the deputy governor (The earlier agreement was to spare the deputy governor) On 17th of October 2006, Chief Friday Aderemi , the speaker of the state house of Assembly was sworn in as the acting governor of the state. This annoyed OBj, who on the 18th of October declared a state of Emergency and appointed Tunji Olurin, a retired soldier as the sole aadminstrator of Ekiti state and this  ignominious act was ratified by the national Assembly. However, on 16th October 2014, Fayose was elected Governor again ( 8 year after his impeachment ) defeating the then incumbent governor, Kayode Fayemi of the APC. As expected, the APC took him to court and among other issues before the court was the effect of the impeachment of 2006 which according to the APC had robbed him of the opportunity to contest again. The supreme court held his impeachment illegal consequently voided all the acts of the state assembly of 2006 .

It is against this odd, that Fayose purportedly declared that he would be seeking for another term of four years, his first term having been illegally terminated or alternatively, an elongation of term for an additional 11 months to complete the truncated first term by the illegal acts of the state assembly. With him in this line of argument is Chief Mike Ozekhome. He argued that if Fayose could convince the court that his impeachment was illegal, then in the eyes of the law it never existed and therefore he would be given a tenure elongation. This argument rests upon the often cited dictum of Denning LJ, in Macfoy v UAC" if an act is void then it is in law a nullity, it is not only bad but incurably bad, there's no need for an order of court to set it aside,. It is automatically void without much ado" .

As pleasant as the argument may seem, it aches and lacks statutory flavour. This argument is without recourse to the provision of section 180(2) CFRN 1999, which provides for the conditions of vacating office by state governors. Having been elected and administered with the relevant oaths, In the eyes of the law, such a person becomes eligible to "only" another single term of four year. This was the decision reached by the courts in INEC&5 state governors v. Marwa $ ors where the court, terminating the tenure of five PDP governors, held that the state governors having been elected in 2007 and their elections annulled later, the same governors won again in a rerun the next year, the court held that their tenure terminated at the end of 4years counting from the date of adminstration of the first oath and effectively terminating their tenure in 2011 and not 2012 as claimed by the governors. In a well considered judgement by the court, allowing them to continue would amount to enlogating their term which would be against the intention of the framers of the constitution.  In INEC v. Peter Obi, the court held that having been elected and sworn in the person is deemed to have been elected and can nOt seek for another two years nor be administered with a third oath of office.Barr. Ogunye (SAN) puts it succinctly thus “ 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 . ”  commonsensically, if his impeachment has been annulled and voided, he is therefore seen in the eyes of the law as having been the governor of Ekiti from 2003 to 2007 and the issue of contesting for another four years does not even arise as argued in some quarters.

Turning to the littles equitable right left for the governor, which is the 11 months spent out of office to which he seeks for an election to complete or a postpnment of the election to enable him complete it, the question turns into the principle of law that a court should not be bothered by acts or actions which have been overtaken by time. Election and impeachment issues are taken seriously as it involves the mandate of the people and where this is in issue, the affected person must act timeously. In OBi V INEC, the court deeclared the election of Andy Uba  null and void since the impeachment of Obi was void and there was no office to conduct an election into, granted Obi a reinstatement having gone to court immediately. In contrast, where legitimate contestants have been adminstrated oaths and were duly elected some 9 years later, the court can not rewind the hand of Time to give an aggrieved party an equitable remedy of postponement. The court can not even elongate his term for more than one day except in accordance with the provision of section 180(3) CFRN 1999 which evinces a condition where the state is in war as the only condition for postponement of elections. The court has equally held that enlogation of tenure is unknown to the law and can not avail any aggrieved party under the constitution. In senator Rashidi Ladoja v. Inec which has similar facts as the case of Fayose, the court pronounced on this same principle and held that elongation of tenure is unknown to the law.  In that case, The governor had been impeached and was out of office for 11 months. He approached the court and was granted his reliefs, the court held the impeachment invalid but however refused to elongate his term for even a day.on question of whether the interest of justice will be served by enlogating his tenure, The court answered," Taking an overall view of the facts of this case, it is my considered view that the interest of justice will never be served by the grant of the declaratory and injunctive reliefs as they relate to the elongation of the tenure".

Admittedly, the court should do justice to all parties, ubi jus ibi remedium( where there's a wrong there must be a remedy) . Equitably also, the court can not allow an aggrieved party to be without a remedy. The court adverted its mind to this all important point in Inakoju v. Adeleke to hold that such a party should be conpenstated with all salaries accruing to him during the moment of his ouster. Interestingly, a similar fact played out in Ekiti when Fayemi sacked 16 local government chairmen, the court through justice Chima Nweze held that all their entitlement be paid and not elongation of term for even a day. At best that is what the court can do and that is all they should do.

Conclusively, Fayose has no legal nor moral backing to seek for an election nor elongation of tenure in Ekiti, it would constitute a clog in the wheel of progress and democracy. It is unknown to the law that an impeached governor can have his term elongated nor can he be administered an oath for a third time. It is an aberration and should be nibbed at the bud else the greed of state governors would rise to a frightening crescendo.

Franklin Lawrence
Writes from the faculty of law UNIBEN.