Nigeria: Is Peter Ayodele Fayose Qualified To Be Governor Of Ekiti State?

By IndepthAfrica
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Jul 2nd, 2014
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By Okoi Obono-Obla

On the 16th March, 2005, the then Governor of Ekiti State, Peter Ayodele Fayose and his Deputy, Mrs.

Biodun Olujimi, were overwhelmingly impeached by the Ekiti State House of Assembly after they were found guilty of charges of corruption.

In an ironic twist on the 21st June, 2014, Peter Ayodele Fayose was elected the Governor of Ekiti State in an election that he defeated roundly the incumbent Governor, Dr. John Kayode Fayemi.

The election of Peter Ayodele Fayose really shocked many Nigerians because Governor Fayemi was highly rated and was expected to have won the election against Fayose in view of the fact that Fayose was dogged by character largely arising out of his impeachment from office.

The pertinent question is: Is Peter Ayodele Fayose eligible to be elected Governor in view of the fact that he was impeached in 2006 by the House of Assembly?

The constitutional disqualification for anybody who desires or aspires to be Governor in Nigeria is spelt out in Section 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Accordingly Section 182 (1) (h) of the Constitution provides that nobody is qualified to be Governor if he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal and State Government which indictment has been accepted by the Federal or State Government, respectively.

Undoubtedly by the provisions of Section 182 (i) (h) of the Constitution (as highlighted) above, it appears that Peter Ayodele Fayose is not qualified to be the Governor of Ekiti State of Nigeria on the ground of his impeachment from office of Governor of Ekiti State on the 16th March, 2006, by the Ekiti State House of Assembly after it found him guilty of sundry allegations of embezzlement of public funds and corruption.

It is clear as the crystal that the impeachment of Peter Ayodele Fayose by the Ekiti State House of Assembly after finding him guilty of allegations of embezzlement of public funds and corruption, constitutes an indictment contemplated by Section 182 (1) (h) of the Constitution.

Undeniably impeachment contemplated by Section 182 (i) (h) of the Constitution is akin to an indictment under Criminal Law Procedure. However the impeaching proceeding does not in itself constitutes a criminal trial.

By Section 188 (5) of the Constitution the Panel constituted by the Chief Judge of a State to look into allegation contained in a Notice of Impeachment containing allegation against a Governor is tantamount to the Administrative Panel of Inquiry envisaged by Section 182 (1) (h) of the Constitution.

If Peter Ayodele Fayose failed to state in his Nomination Form that he submitted to the Independent National Electoral Commission after he was nominated by his Party (Peoples Democratic Party [PDP]) as a Candidate for the Ekiti State Gubernatorial Election he would certainly have contravened Section 31 of the Electoral Act, 2010 (as amended) and this would constitute a ground for his disqualification if challenged in the Court or Election Tribunal.

Section 31 (5) of the Electoral Act, 2010 (as amended) provides that a person who has reasonable grounds for believing that the fact stated by a Candidate in an affidavit or a document submitted to the Independent National Electoral Commission is false may file a suit in the High Court or Federal High Court against such a person seeking a declaration that the information contained in the affidavit is false.

Under Section 31 (6) of the Electoral Act, the High Court or Federal High Court is empowered to issue an order disqualifying a candidate if it determines that the information contained in an affidavit deposed to by the candidate submitted to Independent National Electoral Commission is false.

It is trite that election into the Office of the Governor of Ekiti State was held on the 21st June, 2014. It stands to reason that the period of for the filing of suit envisaged by Section 31 (5) of the Electoral Act has passed because election has taken place.

Anybody that wants to challenge the qualification of Peter Ayodele Fayose now will have to file a Petition within 21 days from the 22nd June, 2014, when he was declared the winner of the election.

However, since election has taken place already, the right vested on anybody to file a suit to challenge the eligibility of a candidate who supplies false information in an affidavit or document submitted to the Independent National Electoral Commission is extinguished.

In Farouk Salim vs. Congress for Progressive Change (2013) LPELR-SC. 160/162 (a case argued by this writer), the Supreme Court of Nigeria held that after an election has taken place the right of an aspirant to file a case in the High Court or Federal High Court under Section 87 (10) of the Electoral Act becomes extinguished. Mary Peter Odili, J.S.C., illuminated the position of the law thus:

“In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the Appellant as Plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT. The other way to say it is that the matter had become spent or no longer alive to be adjudicated upon by any of those Courts above mentioned as in this instance…”

As it stands only Governor John Kayode Fayemi and the All Progressives Congress (the Party that sponsored Governor Fayemi) can file a Petition before the Governorship Election Tribunal under Section 138 (1) (a) of the Electoral Act on the ground that Peter Ayodele Fayose at the time of his election was not qualified to contest.

Unfortunately, Governor John Fayemi cannot question the eligibility of Peter Ayodele Fayose because he has uncharacteristically of a Nigerian Politician accepted the result of the result and congratulated him.

Fortunately the APC that sponsored Governor Fayemi has the locus standi to file an Election Petition seeking for an order that Peter Ayodele Fayose was not qualified to contest the 21st June, 2014, Governorship Election in Ekiti State. It is imperative that APC files the Petition in order for the Election Tribunal to make a pronouncement on the construction and intendment of Section 182 (1) (h) of the Constitution on whether or not an impeached former Governor is eligible to contest an election as Governor or President or member of the National Assembly. This will surely enrich our electoral and constitutional jurisprudence.

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