SUNDAY MUSINGS

On April 24, 2002, a meeting was held at Aso Rock which involved President Obasanjo, 36 state governors, Speakers of the State Houses of Assembly, the three political parties, the Independent National Electoral Commission (INEC) and Justice Minister Mr. Agabi. The meeting was to hammer out a deal concerning the upcoming local government elections. The announced agreement was that due to the lack of a new voters’ register, and the need to register new parties – and in light of the Supreme Court ruling that the States and not the National Assembly had the power to legislate on the date of local government elections - it was considered prudent to move the elections from May 18 ( a date previously agreed by all the governors and SIECs) to August 10, 2002, with the new councillors to be sworn in August 29. The election was not to be at a date in 2003 as sought by the National Assembly in an approved (and hence existing) but now largely discredited Electoral Law 2001.

Every one came out of the said meeting smiling, having apparently saved the day. There was a promise that by INEC’s chairman Dr. Abel Guobadia that new parties would be registered by the third week of June 2002, and that a new voters’ list will be out in July. It was thus left to the State Assemblies, working in collaboration with their SIECs, to work towards making August 10 a successful reality.

The controversy over the conduct of local government elections was put to rest yesterday as stakeholders in the impasse agreed on August 10, 2002 for the elections nationwide with a transition committee effective from May 29, 2002. The decision was reached on consensus at an enlarged meeting of the 36 state governors, Speakers of the State Houses of Assembly, the three political parties and the Independent National Electoral Commission (INEC) with President Olusegun Obasanjo at the State House, Abuja.

President Obasanjo presided over the meeting….. He said the enlarged meeting agreed on the August 10 date on common grounds describing the decision as a doctrine of necessity. "The doctrine of necessity made government to work out the new contraption, which is backed by powers vested on the state Houses of Assembly to legislate on the existence, composition and structure of the councils," he said.

The governor said the meeting agreed that from May 29 when the council chairmen would mark their third anniversary, a transition committee would take over for a period of three months, elapsing on August 29, 2002 when new elected council executives would be sworn in. He said membership of the caretaker committees would be determined by the various State Houses of Assembly. In addition, he said that the Houses of Assembly would legislate for the councils so as not to create any vacuum……. Governor Nnamani stated further that the decision was taken in the interest of the nation and sustenance of democracy. "We have to find a solution, and this is the way out. What remains now is for state Assemblies to back it with an enabling law," he pointed out.

There was however a snag – how to take care of the power vacuum between May 30 and August 29 to be created due to the expired tenure of the elected council members? After all, the Supreme Court had ruled that their tenure was indeed three years from May 29, 1999 or thereabout, and not four years as sought in Electoral Law 2001, confirming that they were all electorally dead at midnight (or midday) May 29, 2001 or thereabout. What to do with them?

THE AGABI MANOUEVER

One would have thought that the rational approach to the April 24 meeting would have been for all parties to agree on a broad line of attack of how to handle the May 29 – August 29 interregnum. So imagine the surprise when three days ago – and in quick succession – Agabi, Ezeife, a yet-to-be-registered party and a federal court judge started to sing a dissonant tune:

(i) Justice Minister Agabi stated that any caretaker committee would be illegal and unconstitutional, but refused to advise on which option would be legal and constitutional;

Attorney General of the Federation and Justice Minister, Kalu Agabi, said in Abuja yesterday that it was unconstitutional for any state governor to set up caretaker committees in place of democratically elected local government councils.

Some state governors, bent on holding council elections this month, have set up caretaker committees to stand in for outgoing elected officials pending the results of the elections.

Citing a recent Court of Appeal judgment in Calabar, Agabi told newsmen that the constitution recognised only democratically elected local government councils and not caretaker committees. In its judgment in a case between the governor of Akwa Ibom and six others versus one Hon. Peter Umah, the Court of Appeal held that it was unconstitutional to replace a democratically elected council with a caretaker committee.

"Only democratically elected local governments are recognised by the constitution. Neither the governors nor the State Houses of Assembly can appoint caretaker committees," he said.

The attorney-general said he had a duty to point out what seemed to be a violation of the constitution, adding that the decision as to how to resolve the matter was that of the government……”

(ii) Special Adviser to the President on Political Affairs Dr. Chukwuemeka Ezeife chimed in the same sentiment;

(iii) A yet-to-be registered UNDP official echoed Agabi and Ezeife, stating that the elections should be postponed till December, and suggesting that civil servants should run the councils in the interim:

ABUJA — NATIONAL Chairman of the United Nigeria Democratic Party (UNDP), Alhaji Saleh Jambo dismissed, yesterday, as unattainable the planned August 10 local government elections.

Fielding questions on Vanguard Abuja Hot Seat, Alhaji Jambo said the decision to put in place transitional committees at the expiration of the tenure of the incumbent council executives on May 29 to run the councils until August 10, was unconstitutional…..

“If we are to encourage our nascent democracy, we should postpone that election till December. All the states governors should send a bill to the state houses of assembly to extend the election for three months, allow INEC to re-register voters, identify polling booths.

“The Attorney-General of the Federation who is the chief law officer of the country has said that it is illegal to have caretaker committees; this means it is also illegal to have the elections in August. Let the governors go to their state assemblies and extend it by three months………..”

(iv) Finally, a Federal Court in Benue State, gave an ex parte injunction to the sitting local government chairmen of that state, who were insisting that they would hand over ONLY to a democratically elected councilmen.

MAKURDI: A Makurdi federal high court has granted an order of interim injunction restraining President Olusegun Obasanjo, the Independent National Electoral Commission (INEC), the Federal Attorney-General and Minister of Justice, the Governor of Benue State, the Attorney-General of Benue State and the Benue State House of Assembly and their agents/servants from dissolving the 23 local government councils in the state. Ruling on an ex-parte motion brought before it by counsel to the 23 local government chairmen in the state, Mr. Ocha Ubegede, the presiding judge, Justice M. A. Edet also gave an order restraining the respondents from appointing caretaker committees to take over the running of any local government council in the state or tampering with/interfering with or impeding the free administration of the applicants’ local government councils in the state. Justice M. A. Edet further told the government not to compel the applicants to hand over the affairs of any local government council in the state to anybody other than a democratically elected local government council in line with the constitutional provisions pending the determination of the motion on notice. He similarly gave an order that the matter be given accelerated hearing and that the order be drawn up and served on the respondents immediately. Justice M. A. Edet said the respondents shall maintain the status quo which existed on the date the applications were filed. In the motion on notice, the local government chairmen in Benue State are asking the court to declare that it is unlawful to entrust the management of the affairs of any local government council in the state in the hand of anybody/committee by whatever name or nomenclature other than a democratically elected local government council as guaranteed by the constitution of Nigeria. They are also urging the court to declare that the fourth defendant has no power to dissolve any democratically elected local government council in the state just as they are seeking for a declaration that the defendant especially the sixth one lacks competence to enact any law for the purpose of administering the affairs of any local government councils in the state by anybody/committee other than a democratically elected local government council as guaranteed by the 1999 constitution of Nigeria.

Being a federal court, it can embolden other local government councils in other states to take similar measures, and cite the Makurdi precedence.

It appears here therefore that a bad-faith script is being played primarily and particularly by Attorney-General Agabi, possibly to prepare to use the courts to delay the local government elections past August 10, 2002 until next year if the states carry out ANY unsupportable illegality! The PDP government is most probably un-ready to test its popularity at the electoral polls at this particular time, what with the Resource Control rulings and plane crashes, etc. It would therefore like some more time to “spend” itself into that popularity and put some respectable distance to the present uncertain atmosphere.

(i) Keep in place the same elected councillors as before – that is extend their tenure – for the period. This would be IN VIOLATION of the Supreme Court ruling, but that simply would be because there is no EXISTING law to extend their term in the case of some well-defined emergency situation. It appears that the State Assemblies can simply pass a new law that would stand assault in court to extend elected councillors in the case of an emergency, examples of which they can enumerate to include the present no-voter-register. If nobody sues, everybody is happy. If someone sues, it might be a sticky option. This is apparently the option that Imo State and Kwara State have now taken:

…Imo State House of Assembly last Thursday fixed elections into the 27 local governments for October. Kwara State had earlier declared that chairmen and councillors would remain in office till September. The Imo State Assembly which sat last Thursday said it was compelled to postpone the election to make room for compilation of new voters' register and for new political parties to emerge.

(ii) Replace the elected committee with a new set of people – the so-called “caretaker committee.”

(a) A new set of unelected persons. The snag here is that the 1999 Constitution clearly stipulates that “democratically elected persons” shall run the local government councils. Of course, new state law could be written to empower the Governor working with the State Assembly to appoint such persons, but that would appear to be in violation of the Constitution, and would therefore be nullified and voided if contested in court.

(b) This is a suggestion that I have made elsewhere: let the governor (as ex-officio) and the state assemblymen that come from each local government run the local governments for the period, being the only current “democratically elected” officials who have votes coming from the local governments after the councillors’ terms have expired. One of the state assemblypersons can be designated as Caretaker Chairman without compensation (WOC), the others from the same local government (if any) can form the other membership of the Council. If there is insistence that all council positions be filled, assemblymen from neighboring (contiguous) local governments can fill those positions. In fact, there is nothing wrong with designating the governor as ex-officio chairman of ALL the local governments during the period.

(c) A third option suggested by Saleh Jambo: declare the local government council seats VACANT during the entire period, but have the councils to be run, with state assembly and gubernatorial oversight, by senior civil servants who retain their current civil service titles, rather than “Caretaker Chairman” or “Caretaker Secretary”, etc. After all- and pardon the rather morbid turn of thinking – if ALL the local government councillors died at the same time on May 28, the show would still go on – and it is these administrative officers that would have kept it on. So we might consider the local government councillors “electorally dead” on May 29 for all intents and purposes!

EPILOGUE

For obvious reasons, my order of choices is (ii) b - (ii) c - ( i ). It is INCONCEIVABLE that ALL states will choose just one method. That would be in the spirit of democracy.

There must be great care not to derail August 10 if the entire Project 2003 Democracy project is not to be derailed. On the one hand, the states must be very careful about the choices that they make. On the other hand, win or lose, one of the legacies that Obasanjo can leave behind for himself is if he can conduct a successful transition from a civilian administration to another. Pointers to that success will definitely begin with the local government elections.

INTRODUCTION

THE AGABI MANOUEVER

EPILOGUE

BIBLIOGRAPHY