Obiechina Vs Chime And Matters Arising
Three components of Nigerian laws are: The Constitution, Laws made by the legislature since the adoption of the constitution and Supreme court’s decisions. The constitution expressly prohibits the legislatures from making what is known in legal parlance as ex post facto laws. By implication Supreme Court is also barred from making the same ex post facto laws via its decisions.
It is therefore pleasing that the Supreme Court has agreed to reopen the case of Obiechina Vs Chime (Enugu Gubernatorial Election) filed about five years ago. One of the panelist judges, Hon. Justice Dattijo Muhammad, asked of the relevance of the suit considering that another general election has been conducted and somebody has been sworn-in into the office under contest.
Justice Dattijo Muhammad’s question is the subject of this follow up to my earlier essay on Obiechina Vs Chime. If the Supreme court wants an easy way out, it will answer the honourable Justice’s question by saying ‘‘it is too late to reopen the suit.’’ If the Supreme Court adopts this easy way, apart from being a bad precedent, it will also be a miscarriage of justice. It will also make the Defendant (INEC) in the case both the defendant and the judge – a condition the Supreme Court cannot allow in the court.
The defendant (INEC) knew very well that it has a case pending in the court and proceeded to conduct another election thereby creating the condition that prompted Justice Muhammad’s question. It ought to be the duty of the Supreme Court to make sure that such cleverness is never attempted by any person or body to take the laws into their hands. The Supreme Court ought to proceed with its current plan as ruled by the former Chief Justice Mahmud Mohammed which is to serve all the parties a new set of hearing Notices and hear the case.
Supreme Court decisions (precedents) become part of the laws of our land for justice rendered on the present cases become the basis for similar future cases. If one were to accept this premise ( that it is too late to adjudicate Obiechina Vs Chime), it follows that INEC could in future ignore a pending case in court and conduct elections and such elections become legal. This will exactly be an ex post facto law. This is very worrisome particularly for the Executive (Governors and President) pre-election cases which political reliefs are not constitutionally time barred.
Ex Post Facto Laws are generally forbidden in both written constitutions and by international organisations. Since the Supreme Court decisions are considered laws until another legislation is passed vacating the decisions, it follows that this provision should apply: ‘‘Notwithstanding the foregoing provisions of this section, the National Assembly or House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect. Nigerian constitution section 4(9).
This can be interpreted that ex post facto laws are not allowed by the Nigerian Constitution. If so, Obiechina Vs Chime must go on in accordance with existing laws when it was brought to the court. An ex post facto law ( in this case a Supreme Court decision not to review Obiechina Vs Chime) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. It would be miscarriage of justice and the precedence will carry into future overrides of judicial status of election petitions by INEC or other institutions. This is perhaps the most important rationale for bringing up and adjudicating the suit on its merit
The Supreme Court of Nigeria should not allow its powers to be usurped by INEC or any other institution in Nigeria or Nigeria is lost. It is worthy of note that this is not the first time that INEC conducted election when a matter was before the court. INEC had received a serious reprimand when it conducted election when Governor Peter Obi’s term was before the court. That election was not known to the laws of Nigeria. The election conducted by INEC in 2015 for the Gubernatorial seat in Enugu state while Obiechina Vs Chime’s case is pending at the Supreme Court for same seat is also not known to law.
Many minds are agitated at the undue delay of Obiechina’s case through long adjournments at the Supreme Court and at the apparent lackadaisicalness of the Supreme Court in hearing the case. Is it because the undue delay of the case–ifthe case is found meritorious–has unfortunately, given it potential to spin a precedence which the Apex court is reluctant to allow? In this sense, if Obiechina’s appeal has merit, the court being unwilling to grant his reliefs because of precedence, will recourse to mischief interpretation that all tenure mandates shall expire after four years from the commencement date of the tenure the mandate was derived for both the Executives and Legislators despite the clear differences in their constitutional provisions.
But then, unfortunately, this interpretation shall yield constitutional crises. Because if you interpret that tenure mandates shall end for Governors (Presidents) at the end of four years from the onset date of the tenure from which they derived their mandate, while section 180(2) of the Constitution provided that a Governor shall serve four years from the date he takes his Oaths of Office, then, there shall be two dates for the end of tenure for any Governor (President) who took his Oaths of Office midstream the tenure he derived his mandate. This double mouthed interpretation for the end of tenure for a Governor shall be ridiculous.
The interpretation for the end of tenure for Legislators yields only one date not two!! Both the Governors who took their Oaths midstream and are serving across Republics and the ones who took their Oaths of Office after four years from the commencement date of the tenure they derived their mandate are protected by same law –Section (180(2)) of the Constitution. You cannot also say it shall terminate only for Governors who did not take their Oaths within four years as this is the clear provision for Legislators (Section 64(1)) and not Executives.
Luckily, the recently inaugurated Electoral Reform Committee, after reviewing Obiechina’s case, set up a Committee to recommend whether to give a time frame for completion of pre-election cases like in Election Tribunal ones or leave the provisions as existing in tandem with our federalism, to make inviolate a core mandate of a federating unit (state). This is solution to Obiechina’s case. The Supreme Court should urgently hear Obiechina’s Appeal, where it is meritorious, declare the Gubernatorial election done by INEC in Enugu state in 2015 null and void and of no effects as it was conducted during the pendency of a case to that office, thus a gamble on the final decision of the Court in Obiechina’s case.
INEC actions can never silence or jettison the powers and authority of the Supreme Court. Obiechina as serving Governor shall seriously underscore the need for the already sitting Electoral Reform Committee and the National Assembly to act on the law expeditiously. Where the lawmakers, representing all Nigerians, feel that the law is good as existing, then Obiechina’s case is not a bad precedence; where otherwise, they stop it by legislating on time framework for completing pre-election cases.
In this latter alternative, Obiechina’s case sets no precedence as the new Electoral Act will come into effect before 2019 general elections. This is certainly better than applying Ex Post Facto law to the case which our Constitution prohibited, more so, when the law is already being reviewed by the appropriate authority.
– Aduba wrote from Boston, Massachusetts
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