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Legal experts divided over Fayose verdict

Posted: Apr 15, 2015 at 7:15 am   /   by   /   comments (0)


•2006 impeachment inconclusive – S’Court 

•PDP, APC differ  on judgement

By Joe Nwankwo, Rotimi Akinwumi (Abuja), Tunde Opeseitan, Augustine Adah, Ifeoma Ononye  (Lagos) and Yaqoub Popoola (Ado –Ekiti) 

After weeks of political unrest culminating in both verbal warfare, destruction of property and one death, the Supreme Court on Tuesday finally put to rest the uncertainty surrounding the victory of Ayodele Fayose as the duly elected Governor of Ekiti State on June 21, 2014.

Fayose, who contested the election under the platform of the Peoples Democratic Party (PDP), defeated the then incumbent governor, Kayode Fayemi of All Progressives Congress (APC), and was sworn in on October 15, 2014.
However, there were divergent views by legal experts who spoke with **Daily Independent** on the import of the judgment.

On his part, rights activist and Senior Advocate of Nigeria (SAN), Mike Ozekhome, noted that the judgement has finally put paid to all the conflicts in Ekiti state arising from the election of Fayose.

“The people and the law have now affirmed Ayo Fayose as governor of Ekiti State,” he said, adding, “all stakeholders should now put an end to the political squabbles in the state and come together to move Ekiti forward.”

But another Constitutional lawyer, Jiti Ogunye said in as much as people would have to live by the judgment considering the fact that the Supreme Court is the final court, the verdict would remain a reference point for lawyers and non-lawyers alike, especially the appreciation of the legal history of the matter.

“If the Supreme Court is saying that the impeachment was inchoate and inconclusive, we may critic the judgment, especially in the light of many acts of brazen impunity of the governor, but like I said, we all have to abide by the apex court judgment, being the final court.”

However, another Constitutional lawyer, Fred Agbaje, insisted that there was nothing wrong with court upholding Fayose’s election.

“What determines the line of action the court takes depends on the facts and evidence presented by parties before the court. The court cannot rule outside what has been presented,” Agbaje submitted.

On the video evidence that proved that the election which led to Fayose’s victory was rigged, Agbaje said the import of the judgment was that such was not established.

“The lesson here is that whoever takes any case to court should be able to substantiate the evidence. Court petitions are based on evidence before the court.”

The immediate past Chairman of Nigerian Bar Association (NBA), Ikeja branch, Onyekachi Ubani said the Supreme Court judgment over Fayose’s election was not unexpected.

He said: “It is difficult for court to upturn the judgment of election petition tribunal judging by past experience,” and that once the election petition tribunal has delivered a judgment on a particular election, it is difficult in most cases to see a different judgment from apex court.

The apex court, in a unanimous judgment on Tuesday, dismissed an appeal filed by the APC challenging the judgment of the Court of Appeal, which had earlier dismissed the party’s appeal against the judgment of the Ekiti Governorship Election Tribunal. The tribunal had upheld Fayose’s election.

A panel of seven Supreme Court justice?s held that impeachment was not a ground for the disqualification of any person, citing Section 182(1)(e) of the constitution which listed the grounds for disqualification.

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

Justice Ngwuta held that: “The proper thing to have been 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 seeking re-election as the governor of Ekiti state.

He further held that: “Since the first panel constituted by the then Chief Judge of the State, Justice Kayode Bamisile had cleared Fayose of any wrong doing, the matter ought to have ended there in accordance with Section 188 (8) of the Constitution.

According to Justice Ngwuta: “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.

The court also dismissed the allegation that the Higher National Diploma (HND) submitted to the Independent National Electoral Commission (INEC) by Fayose was forged.

The court held that: “The allegation being criminal in nature, it must be proved beyond reasonable doubt and that the appellant (APC) having failed to prove the allegation, it could not stand. Secondly, the allegation was dismissed on the ground that the Court of Appeal had held with finality that ‘the certificate was not forged.’ That was in the case filed by the defunct Alliance for Democracy (AD), when the party challenged Fayose when he was first elected as governor of Ekiti State.”

Apart from the lead judgment, all members of the panel took turn to read out their concurrent judgments.
In his judgment, Justice John Afolabi Fabiyi said the Acting Chief Judge was illegally appointed and that the second panel constituted by him was also an illegality.

He said: “It will be recalled that the then CJN and Chairman NJC, Justice Salihu Alfa Belgore wrote to the Acting CJ to inform him that he was illegally appointed. In the letter, the CJN wrote, ‘Any action taken by you will be unconstitutional?.’

“Notwithstanding the advice of the CJN, the Acting Ekiti CJ constituted an illegal panel. An errant illegality. The impeachment was illegal.




Jide Aladejana was dismissed for accepting the illegal appointment as Acting CJ.”
For Justice Bode Rhodes-Vivour, Section 188(8) of the 1999 Constitution was very clear: “Where allegations against the governor were not ?proved, the matter ended there and no further steps should be taken. To set up a second impeachment panel amounted to an illegality.
“Assuming the second panel was legally constituted and Fayose was convicted of stealing and impeached. The proper thing to do was for the authority to arraign him before the Code of Conduct Tribunal.  A governor impeached of stealing should have been tried and convicted at the Code of Conduct Tribunal. It is after then can he be disqualified from seeking re-election until after ten years.
“Impeachment is not a ground for disqualification. Fayose was impeached and was allowed to go home. He should have been charged, tried and convicted. This is laxity on the part of our institutions. “
Justice Bata Ogunbiyi held that to use impeachment as ground for dis-qualifying Fayose from seeking re-election would amount to a violation of his fundamental right to fair hearing.
Shortly after news of the judgment filtered in, Ado- Ekiti, the Ekiti State capital erupted in wild jubilation.
Local musicians, artisans and vehicle and commercial motorcycle operators stormed the major streets of Ado-Ekiti in solidarity with the governor.
Many of them, who sang solidarity songs for Fayose, also warned the opposition party to desist from what they described as an alleged evil plot against their governor.
The state’s factional speaker, Dele Olugbemi, expressed joy over the development and described the verdict as victory for Ekiti people.
He warned his colleagues in the opposition to sheath their sword and respect the will of the people expressly manifested through the ballots.
The victorious governor walked through the major streets and flash points, acknowledging cheers from his admirers.
Reacting, Fayose thanked Ekiti people for their support and loyalty, and dedicated his victory to them and God.
“Having voted for me ten months ago, and confirming the victory by the subsequent elections in the last few weeks, they have shown that they are unequivocal about their choice and their determination to protect and defend that mandate.
“I cannot but appreciate the Apex Court for protecting democracy and also for living to the expectation of the Chief Justice of Nigeria, Hon. Justice Mahmud Mohammed, who had assured that under his leadership, the judiciary would not subscribe to any plot to change the outcome of elections through the instrumentality of the Court.
“I think the necessary lessons must have been learnt and it is obvious that Nigeria is evolving democratically.
“To my opponents, I plead with you to sheath your sword and join me in the development of Ekiti State. If truly our struggle is about service to our dear State, it is time to come together and channel all our resources towards the development of the State,” Fayose stressed.
Also, the PDP applauded the verdict and described it as a “triumph of democracy and the rule of law.”
The party further described the ruling as “a testimony that the judiciary is still the last hope of the common man having sustained the wishes and aspirations of the people of Ekiti State as expressed in the June 21, 2014 governorship election.”
PDP National Publicity Secretary, Olisa Metuh in a statement on Tuesday, expressed delight at the verdict, but warned the outgoing lawmakers from the state elected on the platform of APC, who he accused of making efforts at impeaching the governor, to back down in the interest of peace.
The PDP noted that the verdict had “given hope to the survival of democracy especially coming at a time when some officials of key institutions of democracy such as INEC and some security personnel, have already started compromising their independence apparently under the dictates of an obsessive APC.
“In this regard, we warn all anti-democratic forces hiding in the state, especially the outgoing APC lawmakers against any action intended directly or indirectly to destabilize the state or undermine this democratically elected PDP government under Governor Ayo Fayose.”
But Ekiti State chapter of APC, in a statement by its Publicity Secretary, Taiwo Olatubosun, said even though the party had accepted the verdict because it had no choice, there were however moral issues arising from the judgment.
“As at the time Mr. Fayose filled his form at INEC and lied he had never been indicted by any panel, no judgment had been delivered to reverse his impeachment until the Supreme Court verdict of today. This implies that it is profitable to lie and cheat as the end will always justify the means.
“We had expected that the judgment will serve as a deterrent to the likes of Mr. Fayose who believes in impunity and extra judicial method of doing things. We are shocked that a man who did not allow a case of eligibility against him to be heard till today at the state High Court after assaulting judges and desecrating the judiciary would come out clean at the topmost temple of justice.
?”We know the law is an ass but we had expected that those who trampled on it will have their comeuppance but this was not to be.
“We accept the judgment of the Supreme Court as a law abiding party even though the moral questions it raised have refused to go.
“We call on our party members to be law abiding and not to despair. The present wind of change which is blowing across the country will soon be felt in Ekiti as there will be an end to impunity, brigandage and gangsterism. This is the time for our party members to come together and strengthen our resolve to rescue Ekiti from her present abyss under the iron grip of a dictator,” Olatubosun said.
However, the Speaker, Adewale Omirin, appealed to APC members and Ekiti people to accept the verdict.
Omirin, in a statement by his Special Adviser on Media, Wole Olujobi, said the Supreme Court as the last authority on the matter had spoken and urged the people to respect the verdict.
?”This is an opportunity for Nigerians to ask questions whether it is morally right for an alleged thieving governor to be impeached this month and next month he is re-contesting the same position he lost over breach of public trust and alleged stealing.”