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Author: chukwuka eze
Posted to the web: 6/5/2008 11:14:08 AM

INTRIGUES: THE NIGERIA SUPREME COURT AND ROTIMI AMAECHI’S JUDGEMENT

  On the night of Thursday, 25th October 2007, I read with shock the breaking news on the Thisday Newspapers (online) that the Nigeria Supreme Court has sacked former Governor of Rivers State - Sir Celestine Omehia and installed Honourable Rotimi Amaechi (erstwhile Speaker of the Rivers State House of Assembly) as the Governor of Rivers State. The apex court, in an unanimous decision, held that Amaechi was wrongly substituted by its party (PDP) and that the indictment on which his disqualification was anchored could not stand in the face of law. His Lordship, Hon.Justice Aloysius Katsina-Alu, who read the lead judgment, consented to by the remaining six justices of the court including Justices George Oguntade, Dairu Mustdapher, Tanko Muhammad, Aderemi and others on the panel said the candidate of the PDP in the election was Amaechi.

 According to Justice Katsina-Alu:

In the eyes of the law, he (Amaechi) remains the candidate and this court must treat him as such. The appellant and not the respondent must be seen as having won the election. The argument that the appellant must be held to his claim overlooks the fact that this court has the wide jurisdiction to give circumstantial orders and grant reliefs, which the circumstances and situations dictate

 

He also went further to state that:

This court shall rise up to do substantial justice without regard to technicalities. We would not make an order which does not address the grievances of the party before this court. The only way to accord recognition to his right not to be trampled upon is to declare him and not the 2nd respondent to have won the April 14 gubernatorial election. (Emphasis supplied)

 

I have always respected the judgments of the Supreme Court in many cases like (1) the Peter Obi reinstatement; (2) that INEC could not unilaterally disqualify a candidate nominated by a Political Party in Atiku Abubakar’s case; (3) that the President cannot remove his vice etc, but unfortunately, I find myself unable to take the same position in this particular judgment. What is the ratio decidendi of this decision, by the way? The apex court has promised to give its full reasons for the judgment on January 18 2008.

 

With the greatest respect to the learned justices of the Supreme Court, I find this judgement bizarre, particularly the aspect of installing Amaechi, who never participated in the April 14, 2007 gubernatorial elections, as the Governor of Rivers State. This is strange! It raises a number of legal and political questions:

1.                  Who did Rivers State indigenes vote for during the April 14 gubernatorial election – Sir Celestine Omehia, Hon. Rotimi Amaechi or PDP?

2.                  What becomes of the pending election petitions in Rivers State against former Governor Celestine Omehia? Can those challenging Omehia’s election challenge Amaechi’s… and on what basis?

 

While I admit that these are not the only legal and political questions raised by this judgment, I shall confine discussions in this work to only these two questions. At this very outset, I consider it pertinent to enter this caveat … “my position in this piece does not stem from any preference for either Amaechi or Celestine as Rivers State Governor, but a modest contribution for a focused judiciary and for the deepening of democracy in Nigeria.”

 

Who did Rivers State indigenes vote for at the April 14 Gubernatorial Election?

In order to lay a good foundation for a meaningful discussion herein, it is pertinent to understand the series of events that resulted in the resort to the court by Amaechi and the eventual decision of the apex court. Preparatory to the April 2007 elections, Hon. Rotimi Amaechi, a two-time Speaker of the Rivers State House of Assembly on the platform of the PDP took part in the Party’s gubernatorial primaries in December 2007. At the primaries, Amaechi scored 6,527 of the 6,575 votes cast, leaving the other seven aspirants to share the remaining 48 votes. Subsequently, on December 14 2006, Amaechi’s name was forwarded to INEC, which duly published Amaechi’s name as the PDP gubernatorial candidate for Rivers State. In a curious twist, Amaechi was accused of corrupt practices and purportedly replaced by PDP as its candidate in the then forthcoming elections. Amaechi immediately rushed to court.

 

During the pendency of Amaechi’s action, PDP substituted Amaechi’s name in INEC with that of Sir Celestine Omehia, a man who did not take part in the Party’s primaries. Sir Celestine Omehia contested the April election as the PDP candidate for the polls and was declared winner of the election by INEC. Amaechi doggedly continued his struggle for justice with the Nigeria judiciary, amidst frustrating and turbulent circumstances. His never-say-die attitude paid off, culminating in this controversial decision of the Supreme Court on Thursday 25 October 2007.

 

From the above exposé, it is clear that Amaechi did not participate in the April 14 gubernatorial elections in Rivers State. Thus, ordering his installation as the Governor of a state he never contested its elections is intriguing! As the reason for the Supreme Court’s judgment is still awaited, it may not be outlandish to assume that the apex court took the view that since PDP won the gubernatorial elections in Rivers State, the right PDP candidate (i.e. Amaechi) should be installed as Governor of Rivers State. With due respect, this is a careless assumption which seems out of tune with reality. In Nigeria, who do the electorates vote for – the party or the individual candidate? Specifically, who did Rivers State vote for in April 14 gubernatorial elections PDP or Omehia?

 

I am convinced that this is one of the simplest questions any sane Nigerian can answer – Nigerians vote for the individual, not the party. Moreover, there is no ideological difference among the plethora of parties in Nigeria, whether PDP, ANPP, AC, APGA, Accord Party etc. Nigeria political parties are mere platforms for clinching political offices. This point is aptly buttressed by the manner politicians change parties in Nigeria e.g. former vice president Atiku Abubakar. Thus, since Rivers State indigenes voted for Omehia during the April polls, what is the basis for transferring the victory to Amaechi? In my humble view, upon discovering the injustice perpetrated by PDP against Amaechi, the apex court should have nullified the April gubernatorial polls in Rivers State and ordered a bye election with Amaechi as the PDP candidate. This approach would have sufficiently corrected the injustice meted out to Amaechi by the PDP. But, by going the extra mile of ordering the installation of Amaechi is, in my view, ultra vires the powers of the apex court. Come to think of it, are we meant to assume that Amaechi won the April 14 gubernatorial election in Rivers State, which he never participated in? It is either that the Supreme Court voted him into office or wants Nigerians to believe that he was voted into office by Rivers state indigenes indirectly or by proxy … what a decision!

 

What becomes of the pending election petitions in Rivers State against Sir Celestine Omehia?

This judgment of the Supreme Court has created confusions on the fate of the pending election petitions in Rivers State against the purported election of former Governor Celestine Omehia. Can those challenging Omehia’s election challenge Amaechi’s, and on what basis? The Nigeria Electoral Act, 2006 recognises four grounds for challenging the purported election of any candidate in an election, viz:

 

(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;

 

(b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of the Electoral Act;

 

(c) That the respondent was not duly elected by majority' of lawful votes cast at the election; or

 

(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

Under which of these four grounds can Amaechi’s ‘election’ be challenged? The answer is NONE - he cannot be challenged as he never contested the election. It is impossible to find any misfeasance in him. The apex court judgment has created uncertainties on the pending cases. The most likely effect is that the pending cases will die since the foundation of their existence has been removed. Since the subject-matter of those cases has been destroyed, namely, the declaration of Omehia as the winner of the April 14 gubernatorial election in River State, there is no basis upon which to sustain those cases. Moreover, since Amaechi is a total stranger to the April elections, he remains a ‘saint’ to the evils of the April 2007 polls in Nigeria. Thus, the candidates of other parties who are challenging PDP’s victory at the polls will have to chicken out. As things stand, challenging Amaechi’s election is tantamount to undermining the Supreme Court which “elected” him. This cannot be justice, but injustice by Nigeria’s apex court.

          

The multiplier effect of this judgment in constituting precedence for lower courts in Nigeria is more worrisome. Does it mean that where an aspirant is wrongly excluded by his/her party, upon success in court, he should be eligible to take over from the incumbent that replaced him as the party’s candidate? This is a strange principle. This is one situation where the Supreme Court should not hesitate to overrule itself. The deprivation of River State indigenes of their rights to choose a leader of their choice is, with respect akin to judicial disenfranchisement. Also, depriving candidates of other parties the opportunity of challenging an election result which they believe was rigged against them is a grave violation of the hallowed principle of fair hearing enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and other international human rights treaties to which Nigeria is a party.

 

I am persuaded that the apex court did not set out either to create confusions or uncertainties in the Nigeria Legal System or to mete out injustice on the candidates of other parties at the April polls in Rivers State or to disenfranchise the good people of Rivers State. In this light, the most expeditious step should be taken to nip in the bud the danger which this case portends. In fact, if the Supreme Court could correct itself when giving reasons for its judgment in January 2008, that will be commendable. Such step, I believe, will not undermine the hallowed integrity of the apex court, but rather will portray the disposition of their lordships to doing justice. It will not only save our electoral system of the distortion which the Amaechi precedence represents, but will spare the Nigeria legal system of odium and ridicule before the international community.