The ongoing constitutional amendment, particularly the proposed amendment to section 180 (2) and the insertion of a new paragraph ‘c’ has ruffled the legal beehive with the provision that “in the determination of the four-year term, where a re-run election has taken place and the person earlier sworn-in wins the re-run, the time spent in the office before the date the election was annulled shall be taken into account.
Though the proposed amendment of Section 180 (2) has not yet acquired the force of law, it has generated much controversy during the debate in some state Houses of Assembly.
However, another dimension was introduced to the confusion by the recent High Court judgement in the case involving the interpretative jurisdiction of the court to decide whether Governor Segun Oni of Ekiti State was entitled to a fresh four-year term after a re-run which he won. The court held that his re-election after the re-run was a continuation of his earlier mandate and must continue from where he stopped before the re-run.
It is pertinent to note that the facts which gave rise to Segun Oni’s re-run election are materially and factually different from those that gave rise to Governor Liyel Imoke’s re-run and are legally distinguishable. Whilst the re-run in the case of Governor Segun Oni was as a result of part cancellation of the April 14, 2007 election in some local government areas and wards in Ekiti State, the case of Governor Liyel Imoke was different as it was an outright cancellation of the entire governorship election in the state which in legal parlance is tantamount to the nullification and voiding of the entire mandate given to him in the annulled election.
The Governor Segun Oni judgement applies to him alone and is therefore a judgement in personam. It is a judgement in rem as against a general application. Because the cancellation of the Ekiti election was partial, both Governor Oni and his challenger, Dr. Kayode Fayemi had to their individual credit, some parts of the votes cast in the April 14, 2007 election not nullified by the election tribunal. The facts and circumstances of the Ekiti re-run are therefore peculiar to the state and to the parties involved.
By the 2006 Electoral Act, when an entire election is nulified or voided, the proper order to make by the tribunal is to order for a fresh election as was done in the case of Senator Liyel Imoke. Perhaps based on the misunderstanding of the Ekiti judgement or on the proposed amendment to section 180 (2) of the 1999 constitution, speculations are rife that Senator Imoke’s mandate is counted as a continued part of the annulled April 14, 2007 mandate. Assuming for purposes of argument the proposed amended section 180 (2) is conclusive and Mr. President signs the amendment Act into law, Senator Imoke cannot be affected as to be subjected to governorship election contest in 2011 instead of 2012 when his tenure ought to have terminated.
It is trite in our constitutional jurisprudence that once a process is annulled or voided through a proper judicial pronouncement as in Imoke’s case, the process is in law assumed never to have existed at all. There is therefore in the eyes of the law no unexpired term to be continued or counted against Governor Imoke. It is also trite that a null action is a void act abinitio and leaves no legal effect.
This legal and factual impossibility is navigated within the legal compass of an outstanding ancient legal pronouncement
by the Late Lord Denning (Master of Rolls as he then was) in the Locus Classcus case of Savage vs Mactory that, “when an act is void, it is void for all purposes;
one cannot add something to nothing and expect it to stand. Certainly like a pack of cards it will fall. This legal postulation has support in Nigerian case law and also in the sciences, particularly in Newton’s famous law of gravity and gravitation.
It is also a known and acceptable legal postulate that a law once in force particularly at a time a transaction is entered into should bind the parties and regulate all the ensuring transactions and into a law that has come into existence such as the proposed section 180 (2).
Even when section 180 (as amended) becomes part of the Nigerian Constitution, Governor Imoke’s renewed mandate is strictly regimented by the 1999 constitution as it was before the proposed amendment. This argument is in line with one of the legal requirement of a good law, that is, it must not only be certain but must be predictable to guide against mischief.
However, one should not be seen as challenging the law making powers of the National Assembly because section 4 (1 and 2) of the constitution gives the legislature the power to make laws for the peace, order and good pregovernance
of the federation or any part thereof and this powers is vested in the National Assembly.
Like every acquired constitutional powers, limitations are imposed here and there to check abuse. This is so because power when given absolutely corrupts absolutely,
there must be checks and balances which is the hallmark of separation of powers in a constitutional democracy.
The power vested in the National Assembly to make laws excludes power to make laws with retrospective effect. If the amendment of section 180 is premised in such a way that it guides only future elections coming after the amendment has acquired the force of law, no quarrel about that.
As a general principle of statutory interpretation, the effective
date an amendment to legislation takes effect is the date it is signed into law by the authorised authority;
not even the day it was passed by the law making body. The understanding of the issues herein canvassed is that the tenure of Governor Imoke is regulated by the un-amended 1999, not the latter.
Eteng, a lawyer, wrote from Calabar