The Trial Of Governor Fayose Of Ekiti State: When The Rules Run Out

By

Ajayi Olatunji Olowo

Ajayi.olowo@buckingham.ac.uk

The political melodrama going on in our dear Ekiti State of Nigeria brings to focus the preponderance of the overlap in the various jurisprudential tenets of law.  It is clearly a practical struggle of supremacy between the Liberal Legalism which tends to proffer the importance of the process of legal adjudication over the result as opposed to the Critical Legal theoretical school of thought which propounds that the law is but a tool of the political class in a given environment and that the liberal legalistic web of rules and principles are mere camouflage and weapons in the hands of the powerful class to oppress and suppress the plebeians.

Since Governor Ayodele Fayose and his deputy, Mrs Abiodun Olujinmi, have been served a notice of impeachment on Friday, 29 September 2006, lots of political and legal gymnastics have been displayed by the dramatis personae involved within and outside Ekiti State.  In the first instance, 24 out of the 26 Ekiti State House of Assembly members served an impeachment notice on the governor and his deputy over fraudulent activities unearthed by the report of the Economic Finance and Crime Commission (EFCC).  The initial reaction of the governor was bravado that nobody could remove him, except God, nonetheless the determination of the state legislators to impeach him.   That was followed by his denial of ever receiving the impeachment notice.  The next thing was that the ruling Peoples Democratic Party (PDP) spearheaded by the rest South West PDP governors and the South West Deputy Chairman of the party, Chief Olabode George, were reported in the media of making frantic efforts to reach out to the Presidency to save the embattled governor on the sentiment that an impeachment of both the governor and his deputy might spell doom for the party in the 2007 elections which is less than seven months away.  At that point the pro Fayose politicians had found a potent weapon in the political exigency that there would be a constitutional crisis in view of the constitutional requirement that if the governor and deputy were impeached, it would become mandatory for a bye-election to be held within 90 days.  Their contention was that such might be impracticable in view of the closeness to the 2007 general elections.  At a point the public was fed with the news that based on that argument, the Federal Government had counselled the parliamentarians to spare the deputy governor in order to avoid the imperative constitutional gap that was brewing.

The Ekiti Assembly men however remained undaunted and unbowed.  And since they remain the most clear representative of the people in a scenario where the governor and deputy have lost their political morality on the reign of power, and the retinue of security apparatus around them were conducting multipurpose role of protecting life and public property in the state house against stripping and possible unexpected escape of the fugitive political office holders, the House of Assembly trudged ahead.

Rather than file a response to the notice of impeachment, Governor Fayose headed for the court in the first week of October 2006.  As expected, his request for exparte motion to stave off the impeachment process suffered a huge set-back as two judges earlier assigned to the case declined while the one who sat concurred with the lawyer of the legislators that such a motion could not be granted without first considering the issue of the ouster of the jurisdiction of the court by the provisions of section 188 (10) of the constitution.  While the court had adjourned for a week for arguments to be canvassed on the issue of jurisdiction, the Assembly pulled a fast one by reconvening on 05 October 2006 during which they adopted a motion directing the Chief Judge (CJ) of the state Justice Bamisile to set up a panel of seven members within seven days, in accordance with the provisions of section 188 (5) of the constitution, to probe the allegations against the governor and his deputy.  That directive of the House set off the singular largest constitutional crisis ever experienced in Nigeria since 1999.  And from whichever angle the chains of events that followed that directive is viewed, such would have a lasting effect on the democratic dispensation in Nigeria in a way never experienced before.  This is more so because the judiciary at the highest echelon has been wittingly or unwittingly drawn into the ongoing political crisis in a way that exposes the so called objectivity of the law as mere demystification and reification as the Critical Legal school of thought would assert.

The substantive CJ of Ekiti State (now as a matter of defacto suspended by the House of Assembly) initiated the conflagration when he appointed a 7-man panel, which was immediately condemned as comprising persons of  ‘questionable’ character who were identified as kith and kins of Mr Ayodele Fayose – the embattled governor under probe.  The House, citing contradiction of the process adopted by the CJ, rejected the panel and summoned the CJ to appear before it the following day in pursuant of its constitutional powers under section 129 (1) (c) of the constitution.  That step set off the final stage for the deepened political crises and paved way for the law to be overstretched to a paradigmatic level which Hartinian school of thought refers to as the stage when the rules run out in hard cases.  The erstwhile CJ defied the House, inaugurated the panel and spurred it to operate in defiance to provisions of section 188 (7) (a) of the constitution which provides thus: “…A panel appointed under this section shall…have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly;”

In response to the extra legal posturing of the erstwhile CJ, the House immediately took a decision to suspend the CJ and in his place directed Justice Jide Aladejana to fill-in the temporary vacuum in the Ekiti State Judiciary in an acting capacity and further directed him to set up a fresh panel to investigate the allegations against the governor and his deputy.  Almost simultaneously, the discredited ‘Bamisile Panel’ which stood non-existent upon its rejection by the House, addressed a press conference that they (panellists) had concluded their assignment and arrived at the conclusion that the House was deemed to have abandoned the case against the governor in which case they had no option than to clear Fayose and his deputy of the grave allegations.  The activities of the discredited, disbanded Bamisile panel is nothing short of further contravention of the constitution because if it had done any job at all, its next point of call should have been a submission of a report to the House of Assembly and not a face-saving measure of addressing a press conference which gives probative weight to the allegation that they were stooges of Fayose. As the news debut Fayose and his motley crowd reportedly drove round town but were confronted by irate youths in opposition who protested against them in a manner that only narrowly fell short of open brawl.

By Friday, 13 October 2006, the new panel inaugurated by the House-appointed Acting CJ had commenced work and summoned 10 witnesses, which included the governor and his deputy.  While a counsel represented the deputy governor, the governor stayed away.  However, the witnesses gave startling revelations of how the Ekiti State treasury was looted through a phoney poultry project that was never executed. 

Legal opinions have been divided on the propriety or otherwise of the legality and consequences of the act of the Ekiti State House of Assembly to suspend the substantive CJ and direct another judge to stand in acting capacity without recourse to embattled Governor Fayose.  While the President of the Nigeria Bar Association (NBA) Olisa Agbakoba SAN, and Chief Gani Fawehinmi, SAN, thought the process was unconstitutional and not in compliance section 292 of the constitution, the President of the West Africa Bar Association – Mr Femi Falana took an opposing view.  He premised his counter argument on the inherent powers of the House under sections 128 and 129 of the constitution.  To further complicate issues, as at press time on Friday 13 October 2006, the Chief Justice of Nigeria (CJN), Justice Belgore had unfortunately joined the fray of opinionists.  In a letter addressed to the Ekiti State Acting CJ, Justice Aladejana, the CJN declared the position of the Acting CJ and the fresh panel constituted by him illegal. 

It is obvious at this juncture that the rules had completely run out and the process turned to a hard one in the perspective of Hart and Dworkin jurisprudential theories of law.

Starting with the misconduct of the suspended CJ Bamisile in setting up a panel of questionable integrity contrary to section 188 (5) of the constitution – it is unfortunate that the suspended CJ has debased his highly regarded office, got enmeshed in corruption allegations himself, and dragged the Ekiti State Judiciary and by extension the National Judicial Council (NJC) into the political crises in the state.  The most honourable thing for Justice Bamisile would have been to, on rejection of the panel by the House, disqualify himself from the process and direct the next judge to him in hierarchy to set up a new panel or in the extreme case of him being uncomfortable with the situation resign his judicial position outright.  What did we have instead?  It was a CJ who refused to honour invitation of the House in contravention of section 129 of the constitution and a public boast that he was not answerable to anybody.  If it could be arguable that he was not answerable to the House members, why then was he responsive to their directives of 05 October that he should set up the (discredited) panel?  While it is expedient to state that he responded because the directive made pursuant to section 188 (5) of the constitution empowers him to so act, would the provisions have come to play without the House of Assembly invoking it? The answer would definitely not be in the affirmative. 

The next pertinent question is does the constitution empower the House to suspend a CJ and appoint an Acting CJ?  Section 292 1 (a) (ii) requires the removal of a CJ by the Governor while acting on “…an address supported by two thirds majority of the House of assembly.”  It is a two-test approach: the first being a resolution by two thirds majority of the House; and second, the defacto removal of the CJ by the Governor.  But in an extraordinary circumstance where the governor and his deputy are the culprit, can the second leg of the test be deemed operate-able to correct the rot in which the judiciary of the state had been plunged into? While some legal juggernauts, including the Chief Justice of the Federation seem to be applying a substantive liberal legalistic approach to the revolutionary political development in Ekiti State, those who associate with the act of the House of Assembly are more of the Critical Legal point of view.  As long as Governor Fayose and his deputy remain on the ‘firing range’ of the probe initiated by the House, the duo cannot be deemed to have the political morality to fulfil the second test required in the suspension of the CJ.  The critical legal argument is in favour of the House of Assembly which remains the only one of the three major tripod of government (among the executive, legislature and judiciary) still creditably standing and the most efficacious that can channel the proper pragmatic step to move the political machinery of the stated forward and far away from total chaos.  The suspension of CJ Bamisile would in this light be deemed to be constructively in order in the absence of a politically moral credible occupant of the executive post of a governor to make the notional pronouncement required in the second leg of the test under section 292 because nothing in the aforesaid section indicate that the governor can ever refuse the two thirds majority pronouncement of the House to remove an erring CJ.  It would in effect be unconscionable for the House to allow the gap precipitated by the illogical act of the suspended CJ Bamisile to persist to create a vacuum that can lead to lawlessness, overt political crisis of an unimaginable dimension the flame of which is capable of engulfing the entire nation. What happened in Ekiti State is not different from two earlier instances in Kwara and Oyo States where the House of Assembly had effectively suspended Chief Justice of the States with or without favourable inclination to such decisions by the governors of the affected states.

The argument against the Acting appointment of justice Aladejana in filling the temporary vacuum in the hierarchy of the judiciary in Ekiti State can be rebutted in the light of the fact that section 271 (4) which deals with instance at hand cannot be read in isolation of the provisions of other sections of the constitution which postulates the way forward in the event of non-existence of the governor and deputy governor.  Even though Governor Fayose and his deputy exist in person and presumably in office while the interregnum at hand lasts, they cannot be deemed to be in substantial political existence.  That is the more reason the duo cannot and have not been able to undertake any proper activities officially relating to normal governance since 29 September 2006 when impeachment notice has been served on them.  From a legal constructive point of view the temporary ascendance of Justice Jide Aladejana as Acting CJ cannot be deemed to be absolutely anomalous in the event of the realities on ground in Ekiti State wherein the governor, deputy governor, and chief justice are substantially not in existence defacto.

While the CJN, justice Belgore is at liberty to voice his personal opinion; the letter credited to him purportedly declaring the new Aladejana inaugurated panel illegal is unfortunate.  This is not because the letter could in any way halt the ranging political fire that is about consuming Governor Ayodele Fayose, but because the Ekiti crisis is being allowed to engulf the entire judiciary of the country.  Why did the Chairman of the National Judicial Council (NJC), Justice Ope Agbe, not signed the letter expressing the NJC’s view and instead Justice Belgore did?  What is his personal interest because the view expressed cannot be tantamount to that of the Supreme Court of Nigeria, where he is just first among equals who cannot veto the legal views of other eminent jurists thereof? Where lies the impartiality of the apex court when the CJN has already expressed an anti-Ekiti peoples’ bias?  What makes the CJN feel that any legal fall out of the present political crisis in Ekiti State would not reach the Supreme Court for determination? And in the event of such happening, what moral justification would the CJN have to set up a panel to hear such cases/appeals without his impartiality nay that of the apex court being called to question? There is the foreseeability that in such an event there is the tendency for a clamour for the CJN to step aside if justice must not only be done but also seen to be done.  If the Ekiti scenario has played itself out at the seat of the Federal Government of Nigeria, are there any assurances that the judiciary at the federal level would not throw the entire country into a state of emergency?  The ongoing political crisis in Ekiti State has merely exposed the vulnerability and unpreparedness of the Nigerian Judiciary to perform its fundamental role of an impartial arbiter and spells a possibility of a doomsday prediction for democracy in Nigeria.

The new panel inaugurated by the Acting CJ Aladejana at the instance of the Ekiti State House of Assembly (which concluded its public sittings by noon on Saturday 14 October 2006) is to the best of all available legal precedents hitherto insulated from the intervention of the judiciary once set up by the judiciary as specified by section 188 (5) and operated in accordance with the rules of the House as required by section 188 (7) of the constitution.  Acting CJ Aladejana has performed the only threshold required of the Ekiti Judiciary and beyond that, the judiciary has no further role.  Section 188 (10) states thus: “No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”

It must be understood that the Panel is not a judicial panel.  From statutory interpretation point of view, it is a panel set up to serve the House of Assembly and tantamount to an ad-hoc committee of the House: see section 188 (7).  The only logical and probative reason why section 188 (5) requires the panel to be so constituted by the judicial arm of the government is to meet the legal criteria of fair hearing to the accused governor and deputy.  The disbanded ‘Bamisile panel’, which was made up of Fayose’s surrogates and stooges, would not have passed the eligibility criteria in any sense.

The critical legal perspective of the result being superior to the web of adjudication procedure (favoured by the CJN) would remain a fait accompli on the efficacy of the supremacy of the parliament, particularly as regards impeachment procedures under the Nigerian 1999 constitution until the provisions are otherwise amended through the stringent measures specified in section 9 of the constitution.

If the new panel as constituted by Justice Aladejana clears Fayose and his deputy, they might regain their executive legitimacy (which is at present in limbo and inoperative) but if the panel indicts them they would sink politically by the time the House of Assembly adopts the report by the two thirds majority votes required under section 188 (9).  The ongoing political process in Ekiti has exposed the shortcomings of the young constitution of the Federal Republic of Nigeria and the emotive stand of the various stakeholders involved in the political process, have further complicated matters. 

One point that is clear is that when the rule runs out as it has turned out in the case of Ekiti State, the question is  ‘should we allow the rule of chaos  - which some legal luminaries are masquerading as rule of law?’  Since the constitution is the ground norm and its rules has run out following the gap created by the suspended Justice Bamisile – the only critical legally possible scenario is to ensure that the yearnings of Ekiti people who are up in arms on the streets against Fayose and his cohort of looters and criminals does not turn into warfare.  It is in this light that the step taken by the Ekiti State House of Assembly remains the only plausible pragmatic solution short of a declaration of a state of emergency on the state by the Federal Government.  And if there is a declaration of a state of emergency, the evil day would only be merely postponed because the removal from office and trial of Fayose in a court of competent jurisdiction for his alleged financial and other offences is the first major portal of reforming the political stable in Ekiti State and by extension, that of the entire country Nigeria.

Ajayi Olatunji Olowo writes from the School of Law, University of Buckingham in England.