Akeredolu: Supreme Court gives APC hint and wink

Babatunde Ogala

Babatunde Ogala (SAN)

Babatunde Ogala(SAN)
Babatunde Ogala (SAN)

Senior Advocate of Nigeria Babatunde Ogala examines the impact on the APC leadership of the split decision of the Supreme Court in the case filed by Eyitayo Jegede of the PDP against the election of Governor Rotimi Akeredolu of Ondo State.

By Babatunde Ogala

In this moment of grave legal uncertainty regarding the fate and future of our political party; the All Progressives Congress (APC), it is incumbent on me just like all other leaders and administrators in our party as well as a legal minds to proffer solutions that are altruistic, non-self-serving and ultimately capable of preserving the sanctity of the APC. It is upon this premise that I write.

I must confess that I have not seen the Judgment and my opinion is premised upon reports, snippets and listening to counsel in the matter speak to the media.

The decision of the Supreme Court in JEGEDE V AKEREDOLU in SC/481/21 was a victory for Arakurin Rotimi Akeredolu, SAN the incumbent Governor of Ondo State and I congratulate him and the people of Ondo State for this great victory as another 4 years of phenomenal work is guaranteed.

However, in granting His Excellency Arakurin Rotimi Akeredolu, SAN victory, the learned Justices of the Supreme Court had to touch on the question of whether the office and powers of National Chairman can be exercised by Governor Mai Mala Buni who is the sitting Governor of Yobe State?

In response to this question, it would seem that the 7 Justices of the apex court were not unanimous in viewing the nomination of His Excellency Arakurin Akeredolu by Governor Mai Mala Buni acting as National Chairman of APC as a violation of Section 183 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and Article 17(iv) of the APC Constitution. However, the Court seemed divided as to how to treat this violation. Three Justices agreed that it contaminated the nomination process whilst 4 other Justices did not seem to have pronounced on same but rather dismissed the Appeal on other grounds.

This creates a legal quagmire for APC in respect of all elections and actions carried out by the Governor of Yobe State in his acting capacity as Chairman as there seem not to be a clear position of the Apex Court on same. A close reading of Section 183 of the 1999 Constitution provides a basis for the attitude of the Supreme Court. It states that:

“The governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever”.

Just in case this Section of the Constitution is not self-explanatory enough for anyone, the minority in the apex court cleared any ambiguity when it relied on Article 17(4) of the APC Constitution which provides thus:

“No officer in any organ of the Party shall hold executive position office in government concurrently”.

These provisions were not directly pronounced on by the majority decision of the Supreme Court and that creates a bigger problem in view of the minority decision which extensively discussed this point and resolved same against the APC. It safe to conclude that the judicial attitude of the apex Court is that APC would be dealt a fatal blow should Governor Mai Mala Buni remain at the helms of affairs of the APC and he is joined in a future suit.

Therefore, in response to the well publicised opinion of my brother silk Chief Niyi Akintola, SAN the apex Court gave the APC both a hint and a wink at the same time.

The minority decision backed by the majority’s action of not ruling otherwise on this point sends a strong message which we cannot ignore.

Without equivocation, the law is not on the side of perpetuating serving Governors including Governor Mai Mala Buni in the leadership of the Caretaker Extra-Ordinary Convention Planning Committee. So what do we do as a party?

Without equivocation, the law is not on the side of perpetuating serving Governors including Governor Mai Mala Buni in the leadership of the Caretaker Extra-Ordinary Convention Planning Committee. So what do we do as a party?

I have read suggestions by my brother silk, Festus Keyamo, SAN to the effect that the National Executive Committee (NEC) of the Party as well as its Board of Trustees (BOT) should take charge of the affairs of the Party through a committee set up by either organ. This is a very wise proposition except that NEC alongside all other organs of the Party were purportedly dissolved at a meeting convened and presided over by Governor Mai Mala Buni. Sadly, the Notice for the NEC meeting was issued by the same tainted leadership of the party.

Therefore, it is my view that the meeting may not have been properly convened in the eyes of the law and its resolution(s) may have been void ab initio. This gives a leeway for the NEC to resume its duties and convene meetings immediately where it will decide the future of the party.

The Board of Trustees of the Party was never and has still not been constituted till date. So in effect, the Party does not have a BOT that could convene even a meeting of the BOT, talk more of convening a National Convention or indeed any statutory meeting of the Party.

The reinstatement of the dissolved National Working Committee (NWC) without the erstwhile Chairman who was suspended from office by Order of a court of competent jurisdiction should be seriously considered in other to cloak the impending Ward, Local Government Area and State Congresses as well as National Convention with the imprint of legality. Many of the NWC members have since moved on to better things and would be reluctant to return to their positions but this is the hard decision we must all take for the sake of saving our dear party.

The reinstatement of the dissolved National Working Committee (NWC) without the erstwhile Chairman who was suspended from office by Order of a court of competent jurisdiction should be seriously considered in other to cloak the impending Ward, Local Government Area and State Congresses as well as National Convention with the imprint of legality

It is my opinion, that in this moment, there is no place for parochial ground-standing. Just as the former NWC accepted their dissolution without much hassle, it is time for the current Caretaker Committee to sacrifice for the posterity of APC.

The fate of APC is at stake in that all successes, victories and triumphs gained by the party will continue to hang on a very thin thread in the face of the progressive attitude of our courts on election and political matters.

Meanwhile, the decision of the Supreme Court has opened the flood gates for endless litigation challenging every action and decision of the APC leadership as presently constituted.

In closing, I acknowledge the Supreme Court for its’ decision and specifically note the hint the Court gave to us to clean our acts and come into the bounds of legality before the worse happens at the forthcoming general elections.

Further thoughts on the issue:

Once again, I am compelled to offer my opinion on the above subject following several recent developments.

My decision to be actively engaged in this process of helping the party find a solution is also driven by my sense of responsibility because after the dissolution of the National Working Committee, many senior colleagues reached out to me to express disappointment that I did not do more to offer guidance to the process.

It is of no moment whether or not my guidance is accepted, as far as I offered it.

In this instance, I will illuminate the issues with my legal understanding and hope that our party leaders find guidance in them.

Firstly, I hold the view that it is incorrect (factually and contextually) to state that the Supreme Court upheld the decision of the Tribunal regarding the impact of Section 183 of the 1999 Constitution (as Amended) and Article 17(iv) of the APC Constitution. If this was the case, the Court would not require that Governor Mai Mala Buni ouggr to have been joined as the Court would have already determined the question in his absence.

That opinion most respectfully stands logic on its head, and it is therefore misleading in my opinion.

Also, it is not correct to insist that the opinion of the minority in this case in meaningless taking into account the fact that the majority rested its decision on a technical point.

The technical point which is non-joinder is one that can be cured in any subsequent suit and that is why the failure of the majority decision to directly disagree with the substance of the minority decision presents an existential threat to the All Progressives Congress.

As I noted in my earlier opinion, the Court gave a hint by the silence of the majority and a wink by the decision of the minority.

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Therefore, the purport of the advice of the learned Attorney General of the Federation (with respect) is akin to asking a Pastor or an Imam who is watching on his CCTV camera in his house as 3 (Three) strange men armed with guns and cutlasses scale over his fence, heading for his back door, not to alert the Police but to instead allow them enter his sitting room so he can confirm if they came to rob him or they came to seek deliverance at 2 am in the night. I would have thought that the smart money would be to call the police so that they can seek deliverance in the presence of the Police.

It is my view that it is wrong and unfair on APC and all those who seek office through its platform to be asked to face the risk faced by our Governor, Arakurin Akeredolu. This can be avoided by doing the right thing.

The PDP and its candidate did not challenge the votes cast in that election but rather zeroed in on the nomination of the APC candidate and the nomination process and in response to that the apex Court said “Governor Buni ought to have been joined”.

Does this not say it all?

In another breath, those who compare APC to a club, or an association of elected officers miss the point completely.

Beside being a constitutional entity provided for in Sections 221, 222 and 223 of the 1999 Constitution (as Amended), APC has presence of party leadership through its Polling Unit Committee in over 170,000 Polling Units in Nigeria. The Chairman of the NWC and his team are responsible for the day-to-day running of this huge statutory entity and that is the role being played by Governor Buni and his team today.

How can this not be an executive position as contemplated by Section 183 of the 1999 Constitution?

The apex Court has not left anyone in doubt except those who choose to ignore them.

In the light of the foregoing, how do we proceed as a political party?

I hold the view that the untenable position of Governor Mai Mala Buni as de facto APC National Chairman is the smallest of APC’s problem.

The bigger issue is the fact that the entire Caretaker Committee structure is unconstitutional as it runs counter to the spirit of *Section 223 of the 1999 Constitution* which mandates political parties to have only democratically elected leadership.

It states inter alia in *Section. 223. (1)* that :

*The constitution and rules of a political party shall 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 –

(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;”

This provision is very similar to that contained in *Section 7 of the 1999 Constitution (as Amended) which states that”

The system of local government by democratically elected local government councils is under this Constitutional guarantee; 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.”

This mandatory provision for democratically elected leadership was held by the Supreme Court not to admit of replacement by Caretaker Committees. This was the decision in *GOVERNOR EKITI STATE & ORS V PRINCE SANMI OLUBUNMI & ORS (2016) 3 NWLR (PART 1551).*

To clear any further doubt on this point, the apex Court stated this position in respect of the case brought by ALGON against Oyo State Government. It is instructive, that this case arose after the Oyo State Government disregarded the advice of the Attorney General of the Federation stating that Caretaker Committees could not replace democratically elected officers as contemplated by Section 7 of the 1999 Constitution.

The Supreme Court agreed with the Attorney General of the Federation then and nothing has changed in respect of that position of the law in relation to APC leadership which the same Constitution mandates to be a product of democratic elections.

Therefore, without a doubt, APC must use this opportunity to correct all mistakes by going back to that dissolution of its NWC and all democratically built structures and re-instate the democratically elected NWC members, and other structures of the party.

I implore us to adopt the admonition of the Attorney General of the Federation, Abubakar Malami, SAN to Oyo State Governor on the dissolution of democratically elected structures of the Local Governments in the state in contravention of Section 7 of the Constitution and which said admonition was given an imprimatur by the Supreme Court in dealing with our own current challenge.

Sections 7 and 223 of the Constitution are almost on all fours that only democratically elected leadership shall be vested with responsibilities for the management of affairs of Local Governments and Political Parties.

The Supreme Court spoke on Section 7 and validated the warnings of the Attorney General to the Oyo State Government.
The same warning by one of our own is also available to us in APC.
Let us take heed and do the needful and respect the country’s Constitution.

Furthermore, all other structures of the party hitherto dissolved must be re-instated from NEC to Ward Executives. This is absolutely necessary because the question of whether APC can still be referred to as a political party in its current state in view of its lack of vital organs as required by law is of a very poignant concern.
Without a doubt many may feel they maintain an advantage today because of their access and control of levers of the APC. Yet they must be reminded that 100% of zero is still zero.

Also, admittedly the CECPC has done some work since coming on board. However, all that now stand voidable.

It is my view that we save all that and more by taking the bold step now.

Finally, we must recall that our electoral laws are rapidly progressive. Until recently, political parties were held to be the ones who owned votes cast at an election so it did not matter if there was a candidate or not (See *AMAECHI v. INEC & ORS (2008) LPELR-446(SC)*

All that changed in Zamfara State where in *APC V MARAFA (2020) 6 NWLR (1742)* the apex Court held that APC votes were wasted for not having duly nominated candidates.

Also, the Court did not use to intervene in party congresses but in *APC v. UMAR & ORS (2019) LPELR-47296(SC*) the Court intervened and by so doing APC lost out even before the election in Rivers State was conducted.

The Courts did not also use to intervene in leadership crisis of political parties since the days of *Onuoha V. Okafor (1983) 2 SCNLR 24* but that changed in *PDP V SENATOR ALI MODU SHERRIF & ORS. (2017) LPELR-42736(SC)* and was recently reaffirmed in *ADAMS ALIYU OSHIOMHOLE V COMRADE MUSTAPHA SALIHU & ORS (2021) 8 NWLR (PART1778)*.

Indeed, the trajectory of our Courts in respect of political matters is fairly apparent and therefore predictable when examined without bias and vested interest.

I urge our leaders to take heed while the party still can.
Thank you.

*Babatunde OGALA, SAN was a former National Legal Adviser, All Progressives Congress