Governors and Deputies: Should the Siamese Twins be Separated?
Matters arising from the February 13th, 2020 judgement of the Supreme Court on the Bayelsa State Governorship election, nullifying the election of David Lyon on account of his Deputy, Biobarakuma Degi-Eremienyo’s disqualification, have refused to die. Like the proverbial Dodo, it keeps resonating, almost haunting Nigeria’s judicial landscape relentlessly. This reverberated at the Court of Appeal last week, when the President of the Court, Hon Justice Monica Dongban-Mensem urged the Legislature to amend the Constitution to stop Governorship designates suffering the loss of their mandates in the event that their Deputies are disqualified. As unsettling and controversial as this subject-matter is, it has the potentials of creating a huge political divide in the nation. Professor Mike Ozekhome, SAN; Chief Ferdinand Orbih, SAN; Chief Anthony Aikhunegbe Malik, SAN; SAN; Daniel Kip and Dr Mudiaga Odje critique the Court of Appeal’s proposition that Section 187 of the Constitution should be amended to allow a Governorship Candidate, Governor-Elect or Governor nominate another Deputy in case of disqualification. Will this proposal fly with the National Assembly? Will it bring the much deeded panacea to the political conundrum that has since sometimes affected State Gubernatorial elections?
Should Disability Affecting a Gubernatorial Running Mate, Nullify the Entire Ticket?
Prof Mike Ozekhome, SAN
This poser is prompted by the recent proposal by the Court of Appeal at a Workshop, to change the existing status quo graphically illustrated by the case of David Lyon in Bayelsa State in the last but one electoral cycle. That position itself owes much to the earlier decision of the Supreme Court in the face-off between former President Olusegun Obasanjo and his Deputy, Alhaji Atiku Abubakar, when the Apex Court famously compared the relationship between the holders of such a joint ticket to siamese twins. The Apex Court held that they sink or swim together. The fresh proposal by the Court of Appeal to the Constitution, is to the effect that a Governor whose Deputy has been disqualified by a competent court of law should be sworn in and allowed to nominate another running mate.
What is curious, however, about the proposal is its source: why is it coming from the intermediate appellate court and not the political class itself, or the Apex Court that decided the locus classicus on the issue, that is, the case of PDP & 2 ORS v BIOBARAKUMA DEGI- EREMIENYO (2020) LLJR-SC? In that case, the Supreme Court had on Thursday, February 13, 2020, sacked David Lyon of the APC as Governor-elect of Bayelsa State barely 24 hours to his inauguration. The sight was heart-rending, beholding the disqualification of an already duly elected Governor who was physically at the Yenagoa Stadium, practising his parade salute steps and swearing-in rituals for the following day when he was expected to take office. Lyon sniffed power but never enjoyed it for infractions committed not by him, but by his running mate, Degi-Eremienyo.
The 5-member Apex Court led by Justice Mary Peter-Odili had nullified Lyon’s election because his said deputy, Biobarakuma Degi-Eremienyo, had presented false information to INEC. The Apex Court, per Ejembi Eko, JSC, held as follows:
“Section 31(5) of the Electoral Act compliments Section 182(2)(j) of the Constitution. It empowers any person who has reasonable grounds to believe that any information given by a candidate (like the 1st Respondent in the affidavit, that is, Form (F001) submitted by that candidate, is false, to file a suit at the Federal High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false. The sanction for presenting to INEC Form (F001) containing false facts about the personal particulars or information of the candidate, by virtue of Section 31(6) of the Electoral Act is an order issued by the HighCourt disqualifying such candidate from contesting the election. The sum total is that the joint ticket of the 1st and 2nd Respondent sponsored by the 3rd Respondent, was vitiated by the disqualification of the 1st Respondent. Both candidates disqualified are deemed not to be candidates at the Governorship elections conducted in Bayelsa State.”
Given the centrality of relevant provisions of both the Constitution and the Electoral Act to the decision of the Apex Court in the locus classicus on the issue, it is clear that any change to the status quo will invariably entail amending both provisions, especially the Constitution, to clearly indicate that only the specific candidate who is found to have lied on oath, submitted forged particulars or otherwise violated the legal requirements for his eligibility or qualification for the office concerned will be affected, and not his or her innocent partner under a joint ticket such as Governors/their Deputies and President/Vice President. The proposed amendment to Section 187(1)(a) of the 1999 Constitution reads:
“The removal of a Deputy Governor or Deputy Governorship candidate on account of qualification or disqualification by a court or Tribunal, shall not affect the election of a governorship candidate or Governor-elect”.
Section 187(1)(b) of the proposed amendment provides that:
“If a deputy governor or deputy governorship candidate is removed by a court or Tribunal, the governor or governorship candidate shall have the right to nominate another person as deputy-governor or deputy governorship candidate”.
Governors/The Deputies
In the case of Deputy Governors, Section 191 of the Constitution provides as follows:
“(1) The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with Section 188 or 189 of this Constitution.
(2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Deputy Governor of the State is also vacant, the Speaker of the House of Assembly of the State shall hold the office of Governor of the State for a period of not more than three months, during which there shall be an election of a new Governor of the State who shall hold office for the unexpired term of office of the last holder of the office.
(3) Where the office of the Deputy Governor becomes vacant –
(a) by reason of death, resignation, impeachment, permanent incapacity or removal in accordance with a Section 188 or 189 of this Constitution;
(b) by his assumption of the office of Governor of a State in accordance with subsection (1) of this section; or
(c) for any other reason, the Governor shall nominate and with the approval of the House of Assembly of the State, appoint a new Deputy Governor.”
The President/Vice-President
In the case of the President and Vice-President, the provisions of which are in pari materia with those dealing with governor and deputy governor, the face-off between former President Olusegun Obasanjo and his erstwhile deputy, Alhaji Atiku Abubakar, is notorious for its antecedent circumstance. It will be recalled that following the spectacular fall-out between the two men, former President Obasanjo was reported to be planning to remove Vice President Atiku as his vice. The latter pre-empted his removal by challenging it in court all the way to the Supreme Court. The apex court held (ATTORNEY- GENERAL OF THE FEDERATION & 2 OTHERS v ALHAJI ATIKU ABUBABAKAR & 3 OTHERS, S.C.31/2007, delivered on the 20th April, 2007) that since both of them were elected together in a joint ticket, their fates were tied together in the sense that President Obasanjo could not suo moto discard or dump Atiku at will.
This might seem to be slightly at odds with the situation in DEGI-EREMIENYO’S case above referred which was decided by the same Supreme Court. Upon closer look however, it becomes clear that the similarities are more apparent than real. This is because unlike in the Atiku/Obasanjo scenario, the Bayelsa case involved a pre-election anomaly in the documents submitted to INEC in furtherance of a candidate’s eligibility to contest and election on a joint ticket. By contrast, former President Obasanjo and Vice-President Atiku had already crossed that hurdle, having been successfully elected and sworn into office as President and vice president, respectively. There was no challenge ab initio to the validity of their joint candidacy vis-a-vis the statutory and constitutional requirements to stand for office. This is the crucial difference.
Consequently, the scenario in both cases is clearly different. It would have been otherwise if the candidate of another party had challenged either former President Obasanjo or Atiku on the same or grounds similar to that of Degi-Eremienyo in Bayelsa. Hence the truism in the principle that a case is only authority for what it actually decides and it should not be quoted for a proposition that seems to flow logically from it: O’ODUA INVESTMENT v TALABI (1997) IONWLRpt.523 pg. 1 per Kutigi, JSC, as he then was.
Is the Coury of Appeal on a Sound Wicket?
I dare say the proposal by the intermediate appellate court is correct in all its ramifications because the question is, is it fair that the bad half of a joint candidacy should taint the entire ticket to the point of disabling both candidates, one culpable, the other innocent? Should the one bad apple in the cart so spoil the pair and make both uneatable? Is that really the intention of the makers of the Constitution which stipulates for two candidates – the substantive one and his/her running mate? Does any post- election disability which afflicts one of the occupants of the relevant offices invariably affect and disqualify the other? If for instance, the Deputy Governor of a State (or the Vice-President) is indicted and successfully impeached by the Legislature, will that automatically affect and disqualify his or her principal, the Governor or the President, as the case may be? The obvious answer is no. This, it is submitted, is the key to unraveling the wisdom or propriety of the proposal by the intermediate appellate court.
I humbly submit that the mere fact that a Deputy-Governor or Vice-President is impeached does not translate to the Governor or President being automatically disabled and disqualified from continuing in office. That would be a travesty and indeed an aberration, as it would be manifestly unjust. Accordingly, there is no reason why any legal mishap which befalls their running-mates in the run-up to the election should disqualify them. To hold otherwise would be taking the myth of their joint ticket too far. This is neither desirable nor contemplated by the framers of the Constitution. It is in this light that the Court of Appeal ‘s well thought out proposal must be seen – a veiled, but valiant effort to upturn David Lyon’s case through legislative intervention by preventing a situation which had done manifest injustice to an innocent Governor-elect.
In other words, both candidates should stand and fall on their own merit and fate as individuals. Any defect, infraction, anomaly or misconduct which taints or afflicts any of them should be endured only by him or her alone and no other. To hold otherwise would be tantamount to awarding guilt and punishment by association; an unjust form of vicarious liability in criminal matters. Such a situation is abhorrent and constitutes an anathema to our criminal justice system (See section 7 of the Administration of Criminal Justice Act 2015; section 36 of the Police Act 2020; and, ODOGWU V. STATE (2013) 14 NWLR pt. 1375 pg.74).
Notwithstanding that electoral and pre-election matters are sui generis, there is no reason why a different set of rules should apply to gubernatorial and presidential candidates and their running-mates. Such discrimination is patently and unjustifiably unfair. To that extent, I respectfully submit that it violates the right to equal protection of the law under Article 3(2) of the African Charter on Human and People’s Rights. See FAWEHINMI VS. NNPC (1998) 7 NWLR Pt. 559 pg. 598 at 616; ABACHA VS. FAWEHINMI(2000) 6 NWLR pt. 660, pg. 228; IGP V. ANPP(2007) 18 NWLR pt.1066 pg. 457 at 500; and, Black’s Law Dictionary, 8th edition. Page 554. I applaud the Court of Appeal.
Professor Mike Ozekhome, SAN
Should Disqualification or Non-Qualification of a Deputy Governor Affect the Governor?
Chief Ferdinand Orbih, SAN, FCArb
The Court of Appeal dropped a bombshell on the electoral jurisprudence of Nigeria, in proposing an amendment to Section 187(1) the Constitution to the effect that the disqualification or non-qualification of a Deputy-Governor should not affect the Governor-elect or Governorship candidate of a political party. The proposed Section 187(1) (a) should read thus:
“the removal of a Deputy-Governor or Deputy-Governorship candidate on account of disqualification or non-qualification by a Court or Tribunal, shall not affect the election of a governorship candidate or governor-elect.”
To give teeth to the proposed amendment, the Court also proposed a new Section 187(1)(b) to the effect that a Governor or Governor-elect should have a right to choose a new Deputy-Governor or Deputy-Governorship candidate if a deputy-governor of deputy-governorship candidate is removed by a Court or Tribunal. The proposed amendment is herein reproduced as follows:
“if a deputy-governor or deputy-governorship candidate is removed by a Court or Tribunal, the governor or governorship candidate shall have the right to nominate another person as deputy-governor or deputy-governorship candidate”.
Before we proceed to analyse the pros and the cons of this bombshell of proposed amendment, it is perhaps, not only necessary, but also important to refresh our minds about the extant law about disqualification of a deputy-governor elect or deputy-governor by a Court or Tribunal in order to appreciate why the proposed amendments are nothing short of the revolutionary.
The Extant Law on Disqualification of a Governor and his Deputy
Section 187 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
(1).Nomination and election of the Deputy Governor (1) In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.
(2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor.
The Courts have been consistent in their interpretation of the constitutional provisions, pertaining to the joint ticket of a Governor and his deputy. They stand or fall together. The rationale behind this stance is not far fetched, in that if a Governor cannot validly be nominated without a running mate as Deputy-Governor, it follows that if running mate is disqualified, the ticket becomes incomplete, and as a result, becomes automatically invalid. This was dramatically and tellingly brought to fore in the celebrated case of PDP & ORS v DEGI-EREMIENYO & ORS (2020) LPELR-49734(SC) (Pp. 8-16 paras. D-D)
In that case, the PDP and its governorship candidate, Mr Diri filed a suit against Messrs Lyon, Degi-Eremienyo and INEC, seeking disqualification of the APC deputy-governorship candidate for the November 16th, 2019 governorship election in Bayelsa State. They claimed that Mr Degi-Eremienyo gave false information in his CF 0001 Form submitted to INEC. The Supreme Court in its judgement sacked David Lyon of the All Progressives Congress (APC) as governor-elect, less than twenty-four hours to his swearing in as Governor, on the ground that his deputy, Biobarakuma Degi-Eremienyo presented false information to the Independent National Electoral Commission (INEC). In the eyes of the Supreme Court the governor-elect and his deputy were glued together like a set of inseparable Siamese twins. Consequently, the Supreme Court concluded the judgement as follows:
“The sum total is that the joint ticket of the 1st and 2nd Respondent sponsored by the 3rd Respondent was vitiated by the disqualification of the 1st Respondent. Both candidates disqualified are deemed not to be candidates at the governorship election conducted in Bayelsa State. It is hereby ordered that INEC, (the 4th Respondent herein) declare as winner of the governorship election in Bayelsa State, the candidate with the highest number of lawful votes cast with the requisite constitutional (or geographical) spread. The 4th Respondent (INEC) is hereby further ordered to forthwith withdraw the certificate of return issued to the 1st and 2nd Respondent, and issue certificate of return to the candidate who had the highest number of lawful votes cast in the governorship election and who also had the requisite constitutional (or geographical) spread.” per Ejembi Eko, JSC (Pp. 8-16, para. D-D)”
The Implication of the Amendments Proposed by the Court of Appeal
As we saw in PDP & ORS v DEGI-EREMIENYO & ORS (Supra), the Supreme Court could not perform any legal surgery to separate Mr Lyon from his deputy-governor elect- Mr Degi-Eremienyo. Since Mr Eremienyo could not swim because of the false information contained in his INEC Form, Mr Lyon was compelled to sink with him. The stance of the Supreme Court that in PDP & ORS v DEGI-EREMIENYO & ORS (Supra), on the point that a governor and his deputy hold a joint ticket, is in perfect fidelity with extant constitutional provisions dealing with the subject. However, if the recent proposed constitutional amendments are passed, a governorship candidate or governor elect shall no longer be adversely affected if his running mate (the deputy-governorship candidate or deputy-governor elect) is disqualified for any reason. In PDP v DEGI-EREMIENYO (Supra), Mr Lyon’s Governorship victory in the Bayelsa 2019 Gubernatorial election, evaporated on the altar of the sin committed by Mr Degi-Eremienyo who gave wrong information to INEC. Even though as we opined earlier, the case was decided according to law, the decision was not in accord with common sense. It never makes sense, that a man should undergo punishment for a crime committed by another. The principle of vicarious liability, only operates in the realm of civil law. Vicarious liability is defined as the imposition of liability on a person for actionable conduct of another, based solely on a relationship between the two persons such as the liability of employee or principal for the tort of an agent. See FIRST BANK OF NIGERIA PLC v ERNEST ONUKWUGHA (2005) 16 NWLR (PT. 950) 120 at 155 – 156.” Per SHUAIBU, JCA.
The principle that there is no vicarious liability in the realm of criminal law, is enshrined in our jurisprudence by a long unbroken chain of decided authorities. In In APC v PDP & Ors (2015) 15 NWLR (Pt. 1481) 1 at Pg. 73, the Supreme Court of Nigeria had per Fabiyi, JSC stated inter alia, thus:
“It is basic that there is no vicarious liability in the realm of criminal law. Anyone who contravenes the law, should carry his own cross. The 4th and 5th Respondent cannot therefore, be found answerable to the alleged crimes committed by their unknown soldiers and policemen in an election petition”.
In Adams v The State, Hon Justice Danjuma, JCA espoused the principle lucidly in the following terms:
“I cannot fathom any concept of vicarious liability in criminal responsibility under the Criminal Law of Nigeria, as there is none! A party is a party criminis if he falls under any of the parties to the commission of an offence as enshrined in Sections 7 and 8 of the Criminal Code, failing which he cannot by mere notion of vicarious liability be held accountable for the alleged criminal acts of any other person including even his own proved and ascertained agents where he is proved to be the Principal”.
Conclusion
The Court of Appeal’s proposed amendments to Section 187 of the Constitution, seek to separate the joint nature of the ticket of a Governor and his deputy in such a manner that the disqualification of a Deputy Governor by a Court or Tribunal will not automatically lead to the disqualification of a Governor or Governor-elect. We saw the devastating adverse consequence of the current state of the law in the case of PDP & ORS v DEGI-EREMIENYO & ORS (Supra), where a man who was given a popular mandate in a governorship election by people, had his mandate retrieved and given to another person by the Supreme Court on account of an offence committed by his running mate.
The proposed amendments are steps in the right direction, as they will permanently cure the mischief embedded in the current state of the law and the Constitution that gave birth to the decision in PDP & ORS v DEGI-EREMIENYO & ORS (Supra) and other similar cases.
If a man cannot be held liable for an offence committed by his wife and vice versa, a mother or father cannot be held liable for the offence committed by their children or vice versa, brothers or sisters cannot be held responsible for offences committed by their siblings, why should a Governor or Governor elect be disqualified on account of the disqualification by a Court or Tribunal?
It is on this note that we commend the Court of Appeal and its President, for this very positively bold step to amend the provisions of Section 187 of the Constitution of the Federal Republic of Nigeria.
Chief Ferdinand Oshioke Orbih, SAN, FCArb, KSG, Constitutional Lawyer
Governorship Sword of Damocles:
A Bird’s Eye View of the Proposals for Constitutional and Electoral Reforms by the PCA
Anthony Aikhunegbe Malik, SAN
Introduction
The Retreat put together by the “Joint National Assembly Committee on Electoral Matters” in collaboration with the “Policy And Legal Advocacy Centre (PLAC)” could have passed silently as another everyday well-worn signature jaw-jaw that characterises discourses in the Nigerian Public Service and Civil Society Organisations, save for the presence of one Special guest invited to the event, and her proposals.
The Special Guest at the event was the current President of the Court of Appeal of Nigeria, Honourable Justice Monica Dongban- Mensem (PCA), whose proposals embody some insightful constitutional and statutory reforms in our electoral law and jurisprudence presented at the event have continued to reverberate and dominate discourses within the electoral and legal spheres. This piece, therefore, is one’s modest punditry, to the national interest and consciousness raised by the said proposals.
A good and pertinent starting point, in my respectful view, will be an attempt at finding a correlation between the PCA and her interest in electoral reforms in Nigeria. Only but a few who operate or ply their trades within the corridor of the law or electoral enterprise, may be aware that My Lord, the PCA, has the exclusive constitutional responsibility of appointing and constituting the panels for both the National and State Houses of Assembly Election Tribunals. Additionally, it is His Lordship’s exclusive prerogative to determine who and who sits on Governorship Election Tribunals across the country. Furthermore, with the designation of the Court of Appeal as the court of first instance in the determination of an election petition challenging the election of the President of the Federal Republic of Nigeria, the role of the PCA in the Constitution of the Panel to hear the petition as a trial court, again further adds to the pride of place that the PCA occupies in the nation’s electoral sphere.
It did not, therefore, come as any wonder that the PCA has so much on her chest and up her sleeves, in the agitation for the nation’s electoral governance system, that one year after the 2023 General Election in Nigeria, My Lord the PCA, could not afford but to pour out her heart in what she may have conceived as effective remedies for the clogs that have for long bedevilled the nation’s electoral legal process.
Urgent Need to Review Some Sections of the Constitution
While speaking at the opening session of a two-day workshop organised by the “Joint National Assembly Committee on Electoral Matters” in collaboration with “Policy And Legal Advocacy Centre (PLAC)” the PCA advocated for an urgent review of some sections of the 1999 Constitution with a view to strengthening our unstable electoral jurisprudence. My Lord cited some incongruities in the provisions of the law regulating the electoral process as the elixir for the far-reaching proposal. Among the Sections of the law identified are, Sections 187, 233, 246, and 285 of the Constitution and Paragraph 85(2) of the First Schedule to the Electoral Act, 2022 (as amended). She particularly noted that Section 285 of the Constitution is either a process of poor legal draftsmanship, or a desire that was not properly expressed and appreciated.
Although the PCA presented a bouquet of proposals for constitutional amendments, this piece, however, shall be limited in scope to the proposal as it relates only to Section 187 of the Constitution with a view to determining the propriety or otherwise of the proposals.
Section 187 of the Constitution in Particular
Section 187 of the Constitution of the Federal Republic of Nigeria as amended relates to the nomination of Deputy Governor. It provides as follows: “In any election to which the foregoing provisions of this part of this Chapter relate, a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions”.
(2) The second limb of the provisions of this Section relates to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities, and Oath of Governor to apply to the office of Deputy Governor as if references to Governor were references to Deputy Governor.
In seeking for an amendment to the provisions of Section 187 of the Constitution under reference, the PCA pushes for the insertion to the said Section, a new subsection (1) (A) & (B) that should state clearly that the disqualification or non-qualification of a deputy governor shall not affect the governor-elect or governorship candidate of a political party. According to the PCA, the proposed Section 187(1)(A), should read thusly: “The removal of a deputy-governor or deputy-governorship candidate on account of qualification or disqualification by a Court or Tribunal, shall not affect the election of a governorship candidate or governor-elect.
“Section 187 (1) (B) If a deputy governor or deputy-governorship candidate is removed by a Court or Tribunal, the governor or governorship candidate shall have the right to nominate another person as deputy-governor or deputy-governorship candidate.”
Upon a thorough examination of the afore-referenced constitutional proposal, it is not difficult to observe that indeed, Section 187 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is of a wayward allegiance to the true spirit of the Constitution, requiring therefore, an urgent need for an amendment, just as several other constitutional provisions are currently yearning for amendments, either for reason of incongruity with the spirit underlying the provision in the Constitution or for inelegance in draftsmanship.
Now, overtime, the provisions of Section 187 (1) & (2) have come up for interpretation before the courts, the Supreme Court inclusive, where, curiously, the courts have maintained unanimity in their positions in the interpretation of that piece of legislation to suggest that the validity of a governorship candidature is dependent on the qualification of his associate (the running mate) who will emerge Deputy Governor upon the return and declaration of the governorship candidate as the winner.
Sadly, a scrutiny of the provisions of Section 187 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which has now been made a whipping boy of the amendment proposal, does not contain any shred of indication nor a pointer to any suggestion that the validity of a governorship candidature lies with the competence or qualification of his associate). For a strange reason that one cannot attempt to fathom in a public forum as this, the courts have come with the strange and ruinous interpretation of those provisions as indicated above, by which not a few, have had their hard-earned candidature or victory, crushed on the altar of that strange interpretation.
Furthermore, the said provision of Section 187 of the extant Constitution currently stands wearing the toga of that interpretation, when read with other constitutional provisions relating to the office of the Deputy Governor, grossly offends the underlining spirit of the Constitution that underpins the creation of the office of Deputy Governor. Take, for instance, Section 188 read together with Section 191 of the Constitution of the Republic of Nigeria, 1999 (as amended) vests on the Deputy Governor the right to assume and hold the office of the Governor upon the removal of the substantive Governor by reason of the process of impeachment, death, resignation permanent incapacity.
The Court of Appeal in UMAHI & ANOR v PDP & ORS (2022) LPELR-58994(CA) on who qualifies for the office of Governor of a state, opines, per HARUNA SIMON TSAMMANI, JCA (now JSC) (Pp 66 – 67 Paras D – A), thus:
“Now, the offices of the Governor of a State and Deputy Governor of that State are creations of the Constitution, which is the grundnorm that regulates the conduct of government. Thus, Section 176 (1) of the Constitution stipulates that there shall be for each State of the Federation, a Governor. The qualifications of a person to be elected Governor of a State are laid down in Section 177 of the Constitution. Where a person qualifies to contest for the Governor of a State, he will be declared duly elected if he satisfies the requirements of Section 179(1) (a) and (b), or 179(2) (a) and (b), or 179(3) (a) and (b), or 179(4) (a) and (b) of the Constitution. The equivalent provisions of the Constitution relating to the office of Deputy Governor of a State are Sections 186 and 187 (1) and (2).”
The question that begs for an answer therefore, is why should the same provisions of Section 187 (1) &(2) of the extant Constitution, circumscribe the competence of the candidature or qualification for the office of Governor of a state to his nomination of an Associate (who will contemporaneously emerge as Deputy Governor upon successful emergence of the candidate as Governor, when the same Associate does not go down with the Governor in the same circumstances where the Governor is up against the odds that warrants his removal but saved in such circumstances to go on to the benefit of the provisions of Section 191 of the Constitution to proceed to assume and hold the office of Governor?
While the above scenarios could be explained away on the basis that removal of both the Governor and his deputy in one fell swoop, could trigger a constitutional crisis, it however does not explain why the candidature for the office of Governor of a state will remain inchoate, dependent on and complemented by the valid qualification of his associate, who is inferior in the hierarchy of office to that of the office of Governor of a State.
The above scenarios played out in a sadder dimension, in PDP & ORS v DEGI-EREMIENYO & ORS (2020) LPELR-49734(SC) when the candidature and victory of David Lyon who had been returned elected Governor-elect of Bayelsa State was invalidated a few days to his inauguration and assumption of office. This was in spite of an earlier decision of the apex in WADA & ORS v BELLO & ORS (2016) LPELR-47015(SC) where it was held that qualification for governorship of a Sate is as contemplated under Section 177 and 182(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Having regard to the factual realities that party politics in Nigeria, nay, Africa, come with diverse intra-party interests of various stakeholders within the political party sponsoring a candidate to the office of Governor of a State by reason of which the nomination of deputy governorship candidature is not usually at the absolute discretion of the governorship candidate, and in further juxtaposition with the attendant humongous resources required in the prosecution of electioneering, it will only amount to pretentious justice to still continue to retain the provision that circumscribes the validity of a governorship candidature to the qualification of his associate, otherwise variously referred to as, “Running mate” or “Deputy governorship candidate”.
Conclusion
Finally, it will be a disservice to let off the submission on the note that appears to suggest a hook-line-and-sinker agreement with the position of My Lord, the PCA, without making the point that my agreement with His Lordship’s proposal is on principle that a piece of legislation for which a judicial interpretation has been given wears the colour and toga of that judicial interpretation, requiring therefore, only but a legislative action for its amendment. Otherwise, all things considered, the nation does not need to go through the tortuous route of legislative amendment of the Constitution for a wrong interpretation given to it by the very judiciary now proposing same, when the courts can achieve the same result by a reversal of its current position on the interpretation of the much-beleaguered Section 187 (1) & (2) of the extant Constitution by sheer ingenuity of creative and or purposive interpretation of the Section to reflect the people’s spirit, or what the German legal philosopher, Friedrich Carl Von Savigny, refers to as “Volksgeist”. Methinks that the option of judicial activism preponderates over the proposed constitutional amendment route. While I am not unaware of the near eye-of-the-needle-Camel-passage requirement procedures of our court in reversing itself, methinks that by the privileged position occupied by My Lord, the PCA, she is in a better position than anyone else, to take up the gauntlet and be the chief proponent of this option by proposing to her brother Justices at the Apex Court, to do the needful whenever the opportunity for a pronouncement which attunes more with justice presents itself.
Chief Anthony Aikhunegbe Malik, SAN
The Disqualification of Deputy Governorship Candidates: A Call for Constitutional Reform by the Court of Appeal
Daniel Kip
Introduction
In our political history as a nation, Nigeria has borne witness to numerous court rulings that have shaped the trajectory of our political landscape. However, only a handful of such rulings have had the seismic impact on the political class, like those disqualifying a deputy governorship candidate and, in turn, nullifying the entire ticket. These rulings have not only shaken the political class, but have also sparked intense debates about the fairness of punishing a governorship candidate for the failings of their running mate. Such judgements have changed the course of elections, overturned hard-won victories, and left political parties grappling with the unintended consequences of an intertwined ticket system. This issue has become a lightning rod for calls for urgent constitutional reforms. The Court of Appeal, in a bold move, has called for an urgent constitutional amendment to address this burning issue. This article delves into this issue, examines its broader implications, and highlights the need for reforms.
Case Law
In the recent Court of Appeal judgement in Oyetola & Anor v INEC & Anor (2023) CA/ABJ/CV/1099/2023, the court took a bold step to tackle the situation where the disqualification of a deputy governorship candidate led to the invalidation of the entire ticket, resulting in the disqualification of the governorship candidate. The ruling was reminiscent of the David Lyon v Douye Diri and Biobarakuma Degi-Eremienyo & Anor v People’s Democratic Party & Ors (2020) 1 NWLR (Pt. 1706) 391 case in Bayelsa State, which highlighted the electoral risk posed by the actions or inactions of deputy governorship candidates.
In the Bayelsa case, David Lyon, the candidate of the All Progressives Congress (APC), was disqualified after winning the election. His deputy, Biobarakuma Degi-Eremienyo, was found to have presented forged certificates to the Independent National Electoral Commission (INEC). The Supreme Court held that since the governorship and deputy governorship tickets were one and inseparable, the disqualification of the deputy also affected the governor. Lyon lost his victory, and the People’s Democratic Party (PDP) candidate, Douye Diri, was declared the winner.
Interestingly, In Oyetola & Anor v INEC & Anor (Supra), the Court of Appeal in a bold departure from the Supreme Court’s precedent, questioned the fairness of disqualifying a governorship candidate due to issues related to their deputy, particularly in cases involving academic qualifications, forgery, or other disqualifying grounds. The court opined that disqualifications that arise from the conduct of deputy governorship candidates should not automatically nullify the entire ticket.
The crux of the Court of Appeal’s argument is that the Nigerian Constitution needs to be amended to separate the fate of the governorship candidate from that of the deputy governorship candidate, in cases of disqualification. The court held that, while the Constitution binds the governorship and deputy governorship candidates as a joint ticket, this provision is prone to abuse and can lead to unintended consequences.
It is important to note that the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 187 requires that governorship and deputy governorship candidates run on the same ticket. This means that their fates are tied together. The courts have historically upheld this provision, as seen in the Lyon v Douye Diri case, where the disqualification of the deputy also affected the governor.
However, the Court of Appeal argued that the current constitutional framework does not adequately protect the governorship candidate, who may be innocent of any wrongdoing, but loses their position because of the deputy’s disqualification. The call for constitutional amendment is thus, aimed at preventing governorship candidates from being penalised for the mistakes of their running mates.
The court’s call is supported by other notable case laws, including:
1. Action Congress v INEC (2007) 12 NWLR (Pt. 1048) 220: The Supreme Court upheld that the relationship between a governorship candidate and his deputy is inseparable, as they run on a joint ticket.
2. Labour Party & Anor v INEC (2009) LPELR-8864 (CA): This case emphasised the principle that once a deputy governorship candidate is disqualified, it affects the entire joint ticket.
3. Degi-Eremienyo v People’s Democratic Party (2020) 1 NWLR (Pt. 1706) 391: This case reaffirmed that the disqualification of a deputy governorship candidate renders the entire joint ticket void.
The Need for Constitutional Reform
The joint ticket principle as established under the 1999 Constitution and interpreted by the courts, has created a situation where the fate of a governorship candidate is intrinsically linked to their running mate. While the intention of the framers of the Constitution was likely to create a seamless governance process, where both the governor and deputy governor work together as a unit, the practical realities have revealed a potential for miscarriage of justice.
The Court of Appeal’s judgement in Oyetola & Anor v. INEC & Anor (2023) calls for a separation of the ticket, particularly in situations where the governorship candidate is innocent of the disqualifying conduct. This position is supported by a growing consensus that the current constitutional provisions place undue risk on governorship candidates.
Proposed Constitutional Amendment
The Court of Appeal’s call for reform, highlights the need to amend the Constitution to protect governorship candidates from disqualification due to the actions of their deputies. The proposed amendment could include:
1. Separation of Responsibility: The disqualification of a deputy governorship candidate should not automatically lead to the disqualification of the governorship candidate, unless it is proven that the governor was complicit in the disqualifying conduct.
2. Independent Verification of Candidates: There should be stronger mechanisms for independently verifying the credentials of both governorship and deputy governorship candidates before the election, to prevent post-election disputes.
3. Re-run Elections for Deputy Candidates: In cases where a deputy governorship candidate is disqualified, the governor-elect should be allowed to nominate a new deputy, subject to the approval of the electorate or the legislature.
Conclusion
The Court of Appeal’s recent judgement in Oyetola & Anor v INEC & Anor (Supra), has reignited the debate on the fairness of disqualifying a governorship candidate due to the actions of their deputy. As seen in the Lyon v Douye Diri case and other cases, the current constitutional provisions are ripe for reform. The call for constitutional amendment is timely and necessary, to ensure that governorship candidates are not unfairly penalised for the misdeeds of their deputies.
It remains to be seen whether the National Assembly will heed the call for reforms, and make the necessary changes to the Constitution to address this pressing issue. Nonetheless, the Court of Appeal’s judgement has brought much-needed attention to the matter, and may be the catalyst for future changes to Nigeria’s electoral laws.
Daniel Kip, Immediate Past NBA Assistant General Secretary
A Governor and His Deputy Run Simultaneously Under One Ticket
Dr Akpo Mudiaga Odje
Where Either One is Disqualified, Both are Deemed Disqualified Under the Constitution
Introduction
This issue has arisen again on the front burner, following the recent attempt to amend and reverse the above caption this proposing, that where a Deputy Governor is disqualified and/or unqualified on grounds of academic insufficiency or otherwise, same should not also disqualify an otherwise qualified and elected Governor.
Logical as this decision may sound, with the profundity of respect, that conclusion will divest the electorates the right to elect their own Deputy Governor, if he is replaced by another person nominated solely by the Governor. The prolific Wali, JSC held infra that “a Governor and his Deputy Governor both have their respective supporters who voted both of them simultaneously under the provisions of Section 187(1) and (2) of the 1999 Constitution as amended”. Thus, the germane Section pungently accentuates to wit “187(1)……. candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor, and that candidate shall be deemed to have been duly elected to the office of Deputy Governor, if the candidate who nominated him is duly elected as Governor.” 187(2) posits thus:
“The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor”.
Governor and His Deputy Run on One Ticket
Having thus had the benefit to ruminate the law on this matter as adumbrated above, it becomes legally axiomatic that a Governor for the purposes of elections is deemed to also be a Deputy Governor, and a Deputy Governor also deemed to be a Governor as well.
In other words, both are the same sides of a coin. The Supreme Court had the veritable opportunity to pontificate the law on this issue, in the crystallised case of INEC v PDP 1999 11 NWLR PT 624 174 AT 249 Paras E -F. In that case, Wali JSC ruled that the Governor and his deputy run on one and the same ticket. That they are intertwined by the Constitution like biological siamese twins, and each must thus, possess the same requirements to contest for their offices, as well as also having their own supporters too. So, where one fails to meet his own constitutional requirements, he/she will afortiori, disqualify the other.
This position was further judicially augmented by the Apex Court in the Diri v Lyon case, arising out of elections conducted in Balyesa State for the office of Governor. It was found as a fact, that the Deputy Governor was disqualified after the Governor Lyon was elected, on grounds of falsification of identity and lack of academic qualifications. Thus, the Court, as expected, also disqualified Lyon, the Governor-elect, because of his Deputy’s disqualification.
It must be highly emphasised that, these decisions are premised on the clear and unambiguous provisions of the said Section 187 of the 1999 Constitution. And, the law is well tested and rested, that the Courts should give words used in a statute, (such as in our Constitution), and that are clear and unambiguous like Section 187, their literal and natural meaning.
Emordi v Igbeke 2011 9 NWLR (PT 1751) 24 AT 35 Paras, per Fabiyi, JSC;
Obiuweubi v CBN 2011 7 NWLR(PT 1247,465 AT 491 Paras E, per Rhodes-Vivour, JSC.
Flowing from the above, the only legal ground to contend otherwise, is to amend Section 187 thereof, to separate and set different qualificationsT for both the Governor and the Deputy Governor to be qualified for their offices. Be that as may, it is forcefully postulated that this distinction in office as that office will thus require different qualifications from that of the Deputy Governor to succeed the Governor.
So, there has to be a fresh election to that office of Governor again. Thus, anytime a Governor dies whilst in office, there will be a fresh election, rather than the Deputy Governor succeeding him as is operational now under our Constitution.
We appositely therefore, propound that any attempt by a court to extricate the Governor from the leprous hands of his Deputy Governor in contesting for elections under the present Constitution, is merely a welcome obiter and ought not be followed as a ratio decidendi to be applied, for as long as the said Section 187 remains in force.
An amendment, as suggested above, may offer succour to a Governor, but at the same time, inflict devastating impact on government and governance. This is because anytime a Governor is declared unqualified to the office, there must be a fresh election as the Deputy Governor cannot succeed him, as both offices will require different qualifications to be elected.
I think this is the danger the present Section 187 seeks to cure, no matter the injustice it will cause to an elected Governor.
New Proposed Amendment to Section 187 to Protect the Governor Where his Deputy Governor is Disqualified
This is of one of the raison d’etre of this presentation. The new Section 187 seeks to protect the Governor from the disqualification of his Deputy. And, that such a disqualification will not affect the candidacy of the Governor.
Brilliant as this idea may seem, it has the effect of disenfranchising the electorate who hitherto voted the replaced Deputy Governor, from voting in the new Deputy Governor, as that power will be given to the Governor to nominate a replacement.
This is a setback on this proposed amendment, and, as such, weakens the peoples power in a true Democracy
Section 187 of the Constitution is a Political Decision Based on Public Policy
We recall the proficient Elder Statesman, Okwadike Chukwuemeka Ezeife, former Governor of Anambra State posited that :
“Deputy Governors are Spare Tyres”, meaning sarcastically and humorously that the Deputy Governor can only come on board if one of the tyres of a car goes burst! That is to say, on the death or removal of a Governor.
So, this the political decision implanted and embedded in Section 187, in order to prevent the conduct of a fresh election anytime a Governor dies whilst in office, because such will overstretch both the electorate and the regulator (INEC), including inflicting severe financial burden and deep logistics on the Government. And, the present amendment will disfranchise the electorate.
Conclusion
As the dispute raging continues on this apparently politically sensitive issue, one wonders as a critical closing remark, as to how a differentiation of the qualifications of the Governor and his Deputy Governor for election, will positively impact or benefit our people?
If both candidates and their political parties play by the rules and implant transparency and honesty into their operations, there will be no need to amend the said Section 187, as the parties will ensure that whoever they are fielding as a Deputy Governor meets all the requisite requirements for that office, than selling same to Highest Bidding Deputy Governor who they know risks disqualification after the election of the Governor.
Dr Akpo Mudiaga Odje LLD, LLM (London)(Merit); Constitutional Lawyer; Member of the British Council
