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Home arrow Africa arrow Amaechi vs PDP: A critical appraisal
Amaechi vs PDP: A critical appraisal PDF Print E-mail
Written by J.A Dada, Senior Law Lecturer, University of Calabar   
Nov 04, 2007 at 05:58 PM
It is an elementary knowledge that the Supreme Court of Nigeria is the highest court of the land. That this is so is provided for in section 235 of the constitution which is the fundamental law, the fons et origo, of our jurisprudence. Ipsofacto, the decisions of the court are not only binding and supreme but final. But the supremacy and finality of the decision of the court do not import infallibility of the court and or its justices. Accordingly, even if it is for academic relevance, a critical assessment of the decisions of the court can be undertaken. It is in light of the foregoing that it is proposed to examine, albelt, briefly, the judgement of the court in the highly contentious and celebrated case of Rotimi Amaechi v PDP with Celestine Omeiha as a Respondent.

By the judgment, the Supreme Court voided the election of Celestine Omeiha and declared Rotimi Amaehi as the elected Governor of Rivers State.

It is respectfully submitted that apart from the political questions which this judgement is certain to generate, there are grave legal puzzles which the decision has thrown up.

First, the constitution clearly and unequivocally stipulates the mechanism by which a person can become the Governor of a state. Simply, by section 178, a person can only become the Governor of a state after an election in which he was duly elected. The pertinent question is: did Amaechi contest the election to the office of Governor of Rivers State to warrant or justify his declaration as the Governor? Certainly not. The argument that PDP won the election in the state and consequently Amaechi should be the appropriate beneficiary of that electoral victory is, with due respect, not legally sustainable.

By the provisions of sections 177-179 of the constitution, it is a person, referred to as a candidate in the constitution, and not a party who is elected Governor. The role of the political party is no more than to sponsor the candidate as there is no room for independent candidates under our constitution – section 177(c). Accordingly, it is a grave assault and a regrettable subversion of legislative intent to declare a man who did not participate in an election, the winner of the election. It is partly for this reason that one finds it extremely difficult to appreciate or rationalise the decision of the court in this case.

Another reason why this judgment is questionable is located in the provision of section 187(1) which makes it mandatory for a person aspiring to the office of Governor of a state to have a Deputy. The question may be asked who is the elected Deputy-Governor of Rivers State? Is he the person nominated by Celetine Omeiha and who ran with him or a person to be subsequently nominated by Amaechi after swearing in? In PDP v INEC (2001) FWLR (pt 31)2735, the Supreme Court held inter alia that a Gubernational candidate alone is not qualified to run and is position is inseparably interwoven with that of the Deputy at the time of election. This position is in tandem with the provision of the Constitution and it cannot be faulted. In the face of this decision, how then would the court justify its present seeming summersault? Does it not constitute a regrettable departure from the explicit requirement of the constitution to allow this judicial imposition of a candidate over the people of Rivers State?

It is also instructive to observe that this judgement failed to take into consideration the interest and rights of all the Gubernatorial candidates for the election.

It is to us, stretching and stressing justice and equity to an unjust and inequitable ends to allow a man who did not contest election to be declared winner over and above those who contested; dissipating in the process, enormous energy, time and financial resources to secure electoral victory. The argument and reasoning of the Supreme Court that since Rotimi Amaechi won the primary and his substitution was illegal, he should be declared winner, is with due respect, untenable. PDP is not the only party in Nigeria and it is an unfortunate speculation and permutation to hold that whoever won its gubernatorial primary must emerge the Governor when he contested against other candidates. The case of Ifeanyi Ararume v Charles Ugwu which the Supreme Court referred to in its judgement clearly supports the view that it is not automatic that he who wins PDP primary must win the Governorship seat.

Presumably, the electoral victory of Celetine Omeiha is a subject of election petition now. One question which becomes eminently inevitable is: What would be the fate of such petitions in view of the fact that a wrong candidate in the person of Celetine Omeiha is the Respondent?

It is speculative to imagine or suggest that the Election Petition Tribunal would allow an amendment of such a nature and character which will give a new character to the case especially in view of the provisions of the Electoral Act, 2006 and the Practice Direction which provide time limit within which certain steps may be taken in election petition. Yet, it must be remembered that aggrieved candidates cannot now file fresh petitions since they are out of time allowed by the Electoral Act 2006 to file. So what is the implication? The simple implication is that the Supreme Court would have in its wisdom “installed” a Governor in Rivers State, who is also shielded from election petition!

We may further ask: Assuming Rotimi Amaechi, now River State Governor, suffers any of the legal disabilities provided for in section 182(1) of the Constitution, how is this issue to be addressed since matters relating to qualification of a candidate is a matter which is cognizable only by the Election Petition Tribunal? This question is particularly important in view of the fact that it is now too late to file a petition to challenge the competence and eligibility of Amechi to contest the said election?

It is particularly worrisome that the Supreme Court chose to declare Amaechi the elected Governor of Rivers State when he did not ask for such a relief. Undoubtedly, he did not ask because he knew that having not participated in the election, he could not have sought to be declared governor. To have declared him Governor, under the guise of consequential order in the interest of doing substantial justice, the Supreme Court inexplicably turned itself to a father Christmas against its own plethora of authorities that a court cannot give a relief not asked for: Odukwe v Ogunbiyi (1998)8 NWLR (pt 561)344. Ekpenyong v Nyong (1975)2 S.C 71; Fasikun v Oluronke (1999)2 NWLR (pt 589)6 while it is conceeded that the Supreme Court has wide jurisdiction, its jurisdiction is not absolute or untrammelled and the jurisdiction must be exercised according to well established law and precedent. While one is not advocating that the decision of the court must be predictable, we can insist that the court should not lightly depart from its own decisions which have not been shown to be bad law.

Above all, one is constrained to say that by its judgments, the Supreme Court is unduly shielding those who are indicted for embezzlement and financial impropriety which is most unfortunate and regrettable. One is constrained to come to this irresistible conclusion in view of the judgment of the court in the highly contentious case of Action Congress & Anor v INEC, where, in interpreting the provision of section 137(1)(i), the Supreme Court declared ex-cathedral, that the provision is not self – executing and that it is only a court which has the competence to pronounce a person guilty of a crime. While this is so, the Supreme Court unfortunately ignored, for whatever reason, the fact that a court cannot and does not indict accused persons but convict’s and pronounces sentence after a person has been found guilty.

By section 66(1)(h), 137 (1)(i) and 182(1)(i), indictment for embezzlement and fraud by a Judicial Commission of Inquiry or by an Administrative Panel of Inquiry is a ground of disqualification.

Indictment and conviction are not grammatically or legally synonymous and cannot be used interchangeably. If this is so, and the Supreme Court insists that it is only when a person has been charged to court that his indictment can stand, then what do we then make of the express provision of the constitution which provides that a person who has been indicted for embezzlement and fraud by an Administrative panel of Inquiry is not eligible for election into the National Assembly, the office of Governor or President? This question is particularly important in view of the fundamental canons of constitutional construction that, where words are not ambiguous, they must be given their natural meaning and that no word in an enactment should be regarded as superfluous or a mere supplusage? A.G. of Bendel v A.G. Fed. (1981)10 S.C.I. Tukur v Govt. of Gongola State (1989)4 NWLR (pt 117)517; Orubu v INEC (1988)5 NWLR (pt 94) 323 & Garba v FCSC (1988)1 NWLR (pt 71)449.

If the reason for the substitution of Rotimi Amaechi for Celetine Omeiha is his indictment for fraud and embezzlement by EFCC, he should be allowed to challenge the legality or impropriety or otherwise of his indictment. The interpretation of the provision dealing with indictment is a good encouragement and thick shield for public officers to continue to loot our common treasury unabashedly.
The poor who have been dehumanized and the depersonalized and the country which has been rendered prostrate on account of the dubious activities of some public officers also need legal protection!

For us, we believe the justice of the case would have been to nullify the election of Omeiha and order for fresh pool and not to declare a man who did not contest an election the winner!.

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