By Jibrin Samuel Okutepa SAN
1.0. In this write up I shall attempt to examine the constitutionality of appointments of caretaker committees to run the affairs of political parties in Nigeria. Yesterday the Supreme Court of Nigeria in the Appeal filed by Mr Eyitayo Jegede SAN vs Oluwarotimi Akeredolu SAN, this constitutional issue came up. There was a split decision. The majority decision of 4 to 3 was based on the failure to join the Chairman of the caretaker committee of APC.
2.0. I am not going into the merit or demerit of that decision. As far as I am concerned the decision of the majority did not answer the question of the legality or constitutionality of caretaker committees heading and running political parties in Nigeria. My main concern in this write up is to examine the constitutionality of the propensities of Nigerian politicians or political class, in appointing caretaker or in devolving elected officers of political parties and appointing caretaker committees to run these political parties in Nigeria. Under the laws of Nigeria political parties must undergo series of processes before it can be registered and licensed to operate as political parties in Nigeria.
3.0. In this case section 222 of the 1999 constitution as amended provides that: No association by whatever name called shall function as a party, unless – (a)the names and addresses of its national officers are registered with the Independent National Electoral Commission; (b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstance of birth, sex, religion or ethnic grouping; (c)a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission; (d) any alteration in its registered constitution is also registered in the principal office of the Independent National Electoral Commission within thirty days of the making of such alteration; (e)the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and (f)the headquarters of the association is situated in the Federal Capital Territory, Abuja.
4.0. The same constitution of the Federal Republic of Nigeria provides what the Constitutions and Rules of political parties shall contain. Again, let us look at what the Constitution of Nigeria provides in section 223 thereof.
5.0. Section 223. (1)(a) and (b) and (2)(a) and (b) of the 1999 constitution provide that: The constitution and rules of a political party shall- (a)provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party; and (b)ensure that the members of the executive committee or other governing body of the political party reflect the federal character of Nigeria. (2) For the purposes of this section –
6.0. (a)the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years. (b)the members of the executive committee or other governing body of the political character of Nigeria only if the members thereof belong to different states not being less in number than two-thirds of all the states of the Federation and the Federal Capital Territory, Abuja.
7.0. From the provisions of the constitution as seen hereof, it is the intention of the draftsman of our constitution that political parties in Nigeria must have constitutions and Rules that provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party; and the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years.
8.0. It is on the basis of the foregoing constitutional provisions that the Electoral Act 2010 as amended provided in section 85 thereof as follows: 85. (1) A registered political party shall give the Commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under this Act. (2) The Commission may, with or without prior notice to the political party attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of -(a)electing members of its executive committees or other governing bodies; (b)nominating candidates for an election at any level; and (c)approving a merger with any other registered political party.
9.0. To clear any lingering doubts that our laws and constitution do not have room for appointment of caretaker committees for Nigerian political parties, section 85 (3) of the Electoral Act 2010 as amended is so clear and emphatic. It provides that: The election of members of the executive committee or other governing body of a political party, including the election to fill a vacant position in any of these bodies, shall be conducted in a democratic manner and allowing for all members of the party or duly elected delegates to vote in support of a candidate of their choice.
10.0. When a community reading and construction of the clear provisions of sections 222 and 223 of the 1999 constitution of the Federal Republic of Nigeria as amended read together with section 85 of the Electoral Act 2010 as amended are taken, the irresistible conclusion which any reasonable lawyer or jurist whose version is not beclouded with partisan and primordial consideration will reach will be that both the constitution and the Electoral Act 2010 as amended do not allow appointments of caretaker committees to run the affairs of political parties in Nigeria. It is unlawful and unconstitutional for political parties registered by INEC to rule their affairs by caretaker committees in Nigeria.
11.0. Indeed where vacancy occurs, it must be filed by elections through democratic means where the will of the members of the political parties are expressed by the choice they make. This is because the Electoral Act provides for the election of members of the executive committee or other governing body of a political party, including the election to fill a vacant position in any of these bodies, shall be conducted in a democratic manner and allowing for all members of the party or duly elected delegates to vote in support of a candidate of their choice.
12.0. The Electoral Act makes it clear that election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party; and the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years.
13.0. From the constitutional provisions and the Electoral Act cited hereof, it will, be clearly idle and wayward arguments to contend that undemocratic appointments of caretaker committees to run the affairs of political parties in Nigeria is legal and constitution as being submitted by some legal minds. The Supreme Court has on a number of occasions frown at and declared appointments of caretaker committees to run local governments in Nigeria not only as illegal but unconstitutional and breach of section 7 of the 1999 Constitution as amended. Before citing the cases in which the Supreme Court came hard on appointments of caretakers it will be necessary to set out the provisions of section 7(1) of the 1999 constitution as amended.
14.0. Section 7 (1) of the 1999 constitution reads: The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.
15.0. What has been the attitudes of the Supreme Court for appointments of caretaker committees for local Governments in Nigeria. Let me just cite one of these cases. In the case of Governor Ekiti State & Ors vs. Prince Sanmi Olubunmo & Ors (2016) LPELR-48040(SC) the question before the Supreme Court was whether Section 23B of the Ekiti State Local Government Administration (Amendment) Law, 2001 granting power to the Governor of Ekiti State to remove democratically-elected Chairmen of Local Government Councils and replace them with caretaker committees is inconsistent with Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 16.0. His lordship Hon Justice Nweze, JSC at PP. 26-39, paras. F-A) made these lengthy profound statements of the law which provides complete answers to the question of caretaker Committees to rule political parties when the Constitution and Electoral Act says leaderships selection shall be through democratic means. This is what Nweze JSC said: I will in this judgment, confine myself to the constitutional issue whether the provisions of Sections 23B(I) and (II) of the Ekiti State Local Government Administration (Amendment) Law, 2001 are inconsistent with Section 7 (1) of the Constitution and, if so, whether the lower Court, rightly nullified them? Now, Section 7(1) provides thus: The system of Local Government by democratically-elected Local Government Council is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils. Unarguably, the Ekiti State House of Assembly derived its powers for enacting its said Local Government Law from the above constitutional provision. Indeed, at page 49 of the brief, counsel for the appellants conceded that the “Ekiti State House of Assembly, pursuant to the provisions of Sections 4(6) and 7(1) of the Constitution of the Federal Republic of Nigeria (as amended) enacted the Local Government Administration Law Cap. L11, Laws of Ekiti State.”
In the said Law, sundry matters relating to the establishment of Local Government Councils are provided for in Sections 2-5. In particular, Section 5 consecrates a tenure of three years for the offices therein. The cassus belli in this matter which culminated to this appeal was however, Section 23B of the Ekiti Local Government Administration (Amendment) Law, 2001, which provided for the Governor’s power of dissolution in these terms: 1. Provided always that the Governor is by this law empowered to dissolve Local Government Councils for over-riding public interest subject to the two-thirds majority approval of members of the House of Assembly; 2. Such dissolution shall not exceed a period of twelve calendar months wherein the Governor shall have power to appoint a seven-member caretaker committee out of which a Chairman shall be appointed pending the conduct of election to occupy the office of the Chairman.
Somewhat, most curiously, the Honourable Attorney-General of Ekiti State, for the appellants, in what appears to be an unwarranted sacrilege on the canons of constitutional interpretation, submitted that: “…if the draftsmen wanted the Local Government to be independent of the States, they would have included it under Section 2(2) of the Constitution and the draftsmen would have empowered the House of Assembly to legislate on the existence, structure among others. It will be incongruous if a Court interpret the provision of Section 23B viz-a-viz Section 7 of the Constitution and now come to the conclusion that it contradicts or is inconsistent with the Constitution. The House of Assembly is the Alpha and Omega as far as the issue of Local Government is concerned and any law validly made by them to regulate and control the Local Government ought not be questioned by Court because the Constitution donated such wide powers to the House of Assembly”. (Paragraph 10.10, page 50 of the brief; italics supplied for emphasis). With respect to the Honourable Attorney-General, this submission is an unbridled affront to the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is, indubitably an elementary proposition that the said Constitution is the supreme law of the land, Section 1(1) thereof; N.U.E.E v. B.P.E (2010) All FWLR (Pt. 525) 201, (2010) 7 NWLR (Pt. 1194) 538; Nigerian Army v. Yakubu (2013) All FWLR (Pt. 677) 592, (2013) 8 NWLR (Pt. 1355) 1; Udenwa v. Uzodinma (2013) All FWLR (Pt. 674) 1, (2013) 5 NWLR (Pt. 1346) 94; Amadi v. INEC (2012) All FWLR (Pt. 621) 1415, (2013) 4 NWLR (Pt. 1346) 595; Attorney-General, Federation v. Attorney-General, Lagos (2013) 16 NWLR (Pt. 1380) 249, (2014) All FWLR (Pt. 740) 1296. From the very ipssissima verba of Section 1, Sub-sections (1) and (3) of the Constitution, it is evident that it is the fons et origo, that is, the provenance, from which all sub-constitutional norms derive their source and sustenance; Attorney-General, Abia State v. Attorney-General, Federation (2007) 1 CCLR 104; Attorney-General, Lagos State v. Attorney-General, Federation (2013) 12 NWLR (Pt. 833) 1, (2014) All FWLR (Pt. 740) 1296; INEC v. Musa & Ors. (2003) All FWLR (Pt. 145) 729, (2003) 8 ANLR 322. Even as a simple logical postulate, since all other laws owe their source to the Constitution, it (the Constitution) would not brook any sort of competition with them. As such, not in the event of any conflict, it operates proprio vigore to invalidate them to the extent of their inconsistency, Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999. The authorities on this point are just too numerous to delay us here. All the same, I shall refer to one or two of them; F.R.N. v. Osahon & Ors. (2005) LPELR-3174 (SC) 27-28, (2006) All FWLR (Pt. 312) 1975; E-A; Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130; N.U.E.E. v. B.P.E. (2010) All FWLR (Pt. 525) 201, (2010) 7 NWLR (Pt. 1194) 538; Nigerian Army v. Yakubu (2013) All FWLR (Pt. 677) 592, (2013) 8 NWLR (Pt. 1355) 1; Udenwa v. Uzodinma (2013) All FWLR (Pt. 674) 1, (2013) 5 NWLR (Pt. 1346) 94; Amadi v. INEC (2012) All FWLR (Pt. 621) 1415, (2013) 4 NWLR (Pt. 1346) 595; Attorney-General, Federation v. Attorney-General, Lagos (2013)16 NWLR (Pt. 1380) 249, (2014) All FWLR (Pt. 740) 1296. My lords, it would seem evident that counsel for the appellants, the Honourable Attorney-General underrated the trenchat provisions of Section 7. For our immediate purpose, I will reproduce the relevant provisions: “The system of Local Government by democratically-elected Local Government Council is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils”.
Having thus guaranteed the system of Local Government by democratically-elected Local Government Councils, the Constitution confers a toga of sacro-sanctity on the elections of such officials whose electoral mandates derive from the will of the people freely-exercised through the democratic process. Put differently, the intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically-donated to them; Eze & Ors. v. Governor, Abia State & Ors. (2014) 14 NWLR (Pt. 1426) 192. In the apt and eloquent postulation of the Court of Appeal in Attorney-General, Benue State v. Umar (2008) 1 NWLR (Pt. 1068) 311 at 354-358, which I approvingly adopt in this judgment: “Elections like in any other country should be held sacrosanct. Representatives of the people through an election (at whatever level) cannot just be removed or their Councils dissolved at the pleasure of other elected office holders. Democracy is growing or should grow in this country and with it, the attendant pitfalls and hiccups. However, the Courts are poised to chaperon the many contenders through the straight and narrow of democracy…” Simply put, therefore, the election of such officials into their offices and their tenure are clothed with constitutional force. They cannot, therefore, be abridged without breaching the Constitution from which they derive their force. The only permissible exception, where a State Governor could truncate the lifespan of a Local Government Council which evolved through the democratic process of elections, is “for over-riding public interest” in a period of emergency. As my lord, Aka’ahs JCA (as he then was) put it most, admirably, in Attorney-General, Plateau State v. Goyol (2007) 16 NWLR (Pt. 1059) at page 94 [views I entirely agree with]: “The Governor swore to preserve, protect and defend the Constitution and not to mutilate it. Although the House of Assembly has power to make laws, (it) has no powers to make any law by giving the Governor power to truncate a democratically-elected Local Government Council. The penchant by State Governors in dissolving Local Government Councils is clearly undemocratic. It is only when a state of emergency has been declared that can warrant the suspension of democratic institutions on the polity. See also, Akinpelu v. Attorney-General Oyo State (1982) 2 FNR 248; Akpan v. Umar (2002) 7 NWLR (Pt. 767) 701, 732, paragraph G-H”. In effect, where such is the situation, as even nature itself abhors any vacuum, the Governor would be entitled to empanel a caretaker committee. Anything outside that is an unwarranted affront to the Constitution, Eze and Ors v. Governor, Abia State and Ors. (supra). Unarguably, the Ekiti State Local Government Administration Law, Cap. L11, Laws of Ekiti State was enacted in furtherance of the constitutionally mandated obligation in Section 7 to “ensure their existence under a law which provides for the establishment, structure, composition…” The said law provided for the establishment of Local Government Councils in Ekiti State and consecrated a tenure of three years for the elected officials. ?There can be no doubt, as argued by the appellant’s counsel, that the Ekiti State House of Assembly is empowered to make laws for Ekiti State. However, the snag here is that, in enacting Section 23B of the Ekiti State Local Government Administration (Amendment) Law, 2001 which empowered the first appellant to abridge the tenure of office of the respondents, it overreached itself. In other words, Section 23B (supra) is violative of, and in conflict with, Section 7(1) of the Constitution (supra). Hence, it is bound to suffer the fate of all laws which are in conflict with the Constitution, Section 1(3) thereof Nigerian Army v. Yakubu (supra). By employing the mandatory auxilliary verb “shall”, the draftperson of Section 7(1) (supra), surely intended to impose [and, actually, imposed] an obligation on the States to ensure the continued existence of Local Government Councils which are democratically-elected. In my view, the use of the auxilliary verb “shall” in the said section connotes a command; an imperative requirement: a constitutional direction which yields no room for discretion; Tanko v. Caleb (1999) 8 NWLR (Pt. 616) 606; Abimbola v. Aderoju (1999) 5 NWLR (Pt. 801) 100; Adewumi v. Attorney-General, Ekiti State (2002) FWLR (Pt. 92) 1835, (2002) 2 NWLR (Pt. 751) 474; Amadi v. NNPC (2000) All FWLR (Pt. 9) 1527, (2000) 10 NWLR (Pt. 674) 76. The implication therefore is that Section 23B (supra), which was not intended to “ensure the existence of” such democratically-elected Councils, but to snap their continued existence by their substitution with caretaker committee, was enacted in clear breach of the supreme provisions of Section 7(1) of the Constitution (supra). To that extent, it (Section 23B, supra) cannot co-habit with Section 7(1) of the Constitution (supra) and must, in consequence, be invalidated, Eze and Ors. v. Governor, Abia State and Ors. (supra) and the Court of Appeal’s decisions in Attorney-General, Plateau State v. Goyol (supra); Attorney-General, Benue State v. Umar (supra) which I approvingly, adopt in this judgment. As shown above, such is the potency of the constitutional provisions that they operate proprio vigore to invalidate inconsistent laws to the extent of inconsistency, Section 1(3) of the Constitution (supra); FRN v. Osahon and Ors. (2005) LPELR- 3174 (SC) 27 – 28, (2006) All FWLR (Pt. 312) 1975, paragraph E-A; Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130; N.U.E.E. v. B.P.E. (supra); Amadi v. INEC (supra); Attorney-General, Federation v. Attorney-General, Lagos State (supra). The reason is simple. By his oath of office, the Governor swore to protect, and not to supplant the Constitution. Hence, any action of his which has the capacity of undermining the self-same Constitution (as in the instant case where the first appellant, purportedly dissolved the tenure of the respondents and replaced them with caretaker committees), is tantamount to executive recklessness which would not be condoned; Eze and Ors. v. Governor, Abia State and Ors. (supra); Attorney-General, Plateau State v. Goyol (supra). The net effect of it all is that I find considerable merit in the contention of the counsel for the respondents in this regard. As shown above, he had argued that in exercising its law-making authority, the House must act within the ambits and limits of the Constitution. To that extent, therefore, the laws of the House of Assembly which are inconsistent with constitutional provisions are bound to be nullified. ?Instructively, as counsel for the respondents pointed out, the appellants neither deposed to any fact of any emergency nor to any over-riding public interest that would have warranted their action, citing page 118 of the record. As my lord, Aka’ahs JCA (as he then was) held in Attorney-General, Plateau State v. Goyol (2007) 16 NWLR (Pt. 1059) 94, the only permissible situation that could have justified the interference with the life-span of an elected council was absent; Eze v. Governor, Abia State (2010) 15 NWLR (Pt. 1216) 324, 350; 361-363. I therefore hold that having been elected for a tenure of three years under the Ekiti State Local Government Administration Law Cap. L11, the respondents could only “be removed from office if found to be in breach of the rules governing the office…” Eze v. Governor, Abia State (supra), 215- 216 or by proof that it was in the overriding public interest. That was not shown in this case. Accordingly, I agree with the lower Court’s decision nullifying Section 23B (supra) for being inconsistent with the mandatory provisions of Section 7(1) of the Constitution (supra). In consequence, I resolve this issue against the appellant and in favour of the respondent, Eze and Ors. v. Governor, Abia of State and Ors. (supra); Attorney-General, Plateau State v. Goyol (supra); Attorney-General, Benue State v. Umar (supra).
17.0. For me until our judiciary is prepared to hold the political class responsible and teach them good sense in judgments on how to operate under the rule of law and imbibe the finest democratic principles in their sub-conscious and direct politicians to allow the will of the people to prevail in the running and in the selections of officers of political parties and or those who should lead political parties in Nigeria, political class and parties will always engage in political insubordination and constitutional iniquities of grave proportions. And this is why militarization of democracy continues to be the orders of the days in Nigeria democratic journey.
18.0. This is my stake on this matter. We profess to operate the rule of law, but in reality, we operate the rule of convenience and not the rule of law. No one respects the law. The executive does not, the legislature does not and indeed, it sad to say but the reality is that even the judiciary too appears not to respect the law. Time will not permit me to demonstrate this but search your souls and consciences and you will appreciate the points being made here. In order words, in Nigeria because there are no consequences for misconduct or misbehaviour, everyone appears to worship what is wrong instead of doing what is right. The consequences of all of these are staring every one of us on the face. And that is why in our so-called democracy, Impunity of grave propositions is our daily fare and no one is ready to discipline political misbehaviour.
