“Fayose’s bid to seek re-election would amount to tenure elongation which no court could grant” - Falana

Governor Fayose was impeached in 2006, but the Supreme Court, in 2014, nullified the impeachment that ousted him from office about seven months to the end of his first term, describing the removal as illegal.

A number of lawyers share another view on the possibility of the Ekiti State Governor, Ayodele Fayose, getting the nod of the court to contest the state governorship election in 2018.

Fayose had said on Monday that he would contest the 2018 governorship election so that he could serve out his first term which was truncated in 2006.

Speaking on a live broadcast on Ekiti State Television in Ado-Ekiti, on Monday, Fayose argued that since the apex court had declared that his impeachment in 2006 was illegal, he would then have to approach the same court to interpret what the ruling meant and also consider seeking re-election in 2018.

But human rights lawyer and Senior Advocate on Nigeria, Mr. Femi Falana, described as anomalous the likely bid by Fayose to seek re-election in the Ekiti State governorship poll in 2018.

While Falana, Emeka Ngige (SAN); Sebastine Hon (SAN); Paul Ananaba (SAN) and a Lagos-based legal practitioner, Jiti Ogunye, argued that Fayose’s bid was unconstitutional and bound to fail, another SAN, Chief Mike Ozekhome, believed the court could grant Fayose the opportunity to serve out the seven months remaining in his first term before he was impeached.

Falana said Fayose’s bid to seek re-election would amount to tenure elongation which no court could grant.

The senior advocate stated, “Tenure extension by a governor under any disguise is anomalous. No court can prolong the tenure of a sitting governor beyond the two terms prescribed by the Constitution.

“In the case of Governor Rasheed Ladoja v INEC, the appellant wanted an extension of his term of office to allow him to spend extra 11 months while he was fighting his impeachment from outside.

“Although the Supreme Court had set aside his impeachment, it was held that the relief was illegal and unconstitutional.

“Similarly, the governors who were re-elected after their initial election was annulled, the Supreme Court made it abundantly clear that tenure extension was unknown to the Constitution.

“In view of the settled position of the law on the matter, Governor Ayo Fayose’s request cannot be granted by any court in Nigeria.”

Ngige argued that antecedents showed that the court could not grant the request of the governor.

The senior advocate added, “My own understanding is that based on the Supreme Court decisions on former governor Peter Obi versus the Independent National Electoral Commission, and former governor Rasheed Ladoja against the (Oyo) state House of Assembly, Fayose is not eligible to contest another term.

“The then Oyo State governor had complained to the court about his impeachment by the state House of Assembly, which truncated his tenure, and later voided, and sought to extend his tenure by the number of days to reclaim his mandate; but the Supreme Court told him pointedly that it was not possible.

“The same thing applies to Fayose. He had taken an oath of office, whether rightly or wrongly but he was impeached along the line and later, the impeachment was voided by the court. But that is not to say that the tenure did not run.

“However, I think the governor is perfectly entitled to seek for judicial interpretation of his eligibility to contest another term of office. It is a democratic sense to do that. He can try his luck.”

Hon, who spoke with one of our correspondents on the telephone on Wednesday, cited the cases of Ladoja and Obi, saying the apex court settled the issue that wrongful impeachment could never serve as  grounds to extend a statutorily defined term of office.

He said the Supreme Court was not likely to overrule itself if Fayose approached the court.

Hon, an author, added, “The four years which a governor is entitled to for a term cannot be broken just because of impeachment or because the election of somebody was nullified and the person was outside and later came back.

“Those issues have been settled by the Supreme Court and I don’t see the court overruling itself and I don’t think Governor Fayose has any right to come back under the law.”

Ananaba also said Fayose could not seek re-election, having taken the oath of office for the office of the governor twice.

Although Ananaba said it was an issue that should be tested in court, he expressed doubt whether Fayose was actually serious about seeking re-election.

The SAN added, “The issue is whether he has taken the oath of office for the position of a governor twice. If the answer is no, then he can seek re-election but if the answer is yes, he cannot seek re-election.

“But I think it is a matter that should be tested in court.

“Although I’m aware that that certain principles have been settled, the law is being developed every day. But I don’t think he actually wants to run.”

But Ozekhome said Fayose could convince the court and be compensated for seven months to fulfil his constitutional two terms.

Ozekhome argued that Fayose could only seek to serve out in 2018 the seven months subtracted from his first tenure.

He said, “The truth is that if I remember carefully, Fayose won the matter that his impeachment was illegal. And if it was declared illegal by a court, it means then that it never was. If a competent court declared the impeachment as null and void, it then means that the seven months for which he was impeached were illegally taken from his two terms. Therefore, I will say that where there is a right, there is a remedy.

“So, once Fayose can prove that he was illegally removed and that illegality has been confirmed by a court of law, it means that in the eyes of the law, he was still a governor but was prevented from acting during the impeachment. He can therefore seek for recompense for those months to enjoy the unexpired residue of seven months for which his governorship was truncated.

“Fayose may have said the statement as a politician to fly a kite, but I can assure you that he has touched on something of serious constitutional import. Fayose is not looking for four years, but seven months. In the worst scenario, he can be entitled to only seven months which was taken from his first term.”

Ogunye, on his part, noted that the constitution did not make provision for an extension when a governor’s tenure was truncated to allow such person to contest and make up for the lost time. 

Ogunye said, “Assuming he wins the election in 2018, will he then govern mathematically or arithmetically up to the month or the year when his first term was truncated?

“The little law that I know, in the case of Obi and INEC, in relation to the provision of the constitution on tenure and the qualification to contest a governorship seat, if you were elected into office twice and has taken the oath of office twice, the emphasis is on being elected twice and being sworn into office twice, you will not be able to contest another term.

“The constitution does not provide for a truncated tenure to enable a person, whose tenure is truncated, to come back and have another bite at the cherry.” 

Ogunye, however, advised Fayose to talk to his lawyers so that he could be properly guided in his ambition.