SUYI AYODELE, South-South Bureau Chief, writes on the seeming mist surrounding the September 19 governorship election in Edo State against the backdrop of violence that has characterised campaigns by the political parties and their candidates.
A week to the September 19, 2020, governorship election in Edo State, the major topic in the political discourse in the state is the possibility of the election not holding as scheduled. On more than five occasions, the ruling Peoples Democratic Party (PDP) in the state had repeated the fears that the sketches of violence witnessed in the past few weeks were all designed by the opposition All Progressive Congress (APC) to ensure that the September 19 gubernatorial pregnancy is aborted through postponement. And for as often times as the PDP raised the alarm, the APC itself dismissed it, just as the Independent National Electoral Commission (INEC) on Wednesday said everything was on track.
The accusations and denials notwithstanding, one denominator is the fact that there is palpable anxiety in the horizon. The situation, especially in the Edo North senatorial district, making up the six Local Government Areas of Owan East, Owan west, Etsako West, Etsako East, Etsako Central and Akoko-Edo, is ominously charged. Not a many watchers are least surprised about the edgy nature of politics and politicking in the Afemai land of Edo North. The districts is the home of the two most controversial and combative political warlords in the game: Adams Aliu Oshimhole, the erstwhile national chairman of the APC and immediate past governor of the state and his estranged cousin, godson and beneficiary, Philip Shaibu, the incumbent deputy governor of the state. What is playing out in terms of violence in Edo North can be found in the witty saying of the ancients; to wit: “when two wise men sit at a table to eat watery vegetable soup, they may end up eating only the water”. Oshiomhole and Shaibu is a case of superiority contest and little wonder the conflagration sits comfortably well in their zone.
The tenuous labyrinth assumed a worrisome state such that the Benin monarch, Omo N’Oba N’Edo Uku Akpolokpolo, Oba Ewuare II, Ogidigan, had to summon a peace meeting in his palace last week Wednesday. Though all the gladiators were present, pledging peace before the Oba, barely 24 hours later, they were back to the trenches. With the way the two parties forgot the peace accord like the proverbial Monkeys of the Pampas of Argentina that have learnt nothing and have forgotten nothing, there seems to be more to the tension than the issue of campaigning for votes.
Can inec postpone election?
If anybody has any doubt about the power of INEC to postpone any election, the man who should know better, Festus Okoye, INEC Commissioner and Chairman Voters education Committee, answers in the affirmative. In August, he spoke on the spate of violence and threat to lives and properties during election. He said: “The commission will not proceed with any election in the face of the cogent and verifiable reason of threat to or actual breakdown of law and order. The commission will also suspend the conduct of the election or the announcement of results in the face of threats or actual threats. The choices are clear and any disruption of the process will be a recipe for a constitutional crisis.” Responding to the fear expressed by the PDP that a party, which knew it was about to lose could instigate violence to frustrate the process and spoil the victory dance of the winning party, he said again: “The commission will not share with or consult any political party before exercising its regulatory powers. The primary determination of what constitutes a serious breach of the peace or whether the same is likely to occur resides with the commission and this can only be made based on cogent and verifiable reasons.” Okoye repeated the same warning in Benin City some weeks later, when he warned the parties to toe the path of peace as the INEC would not abdicate its constitutional responsibility of holding elections only in an atmosphere of peace and tranquillity.
Postponement and constitutional crisis
The 1999 Constitution as amended stipulates the duration for election to the office of a governor of a state can hold. Specifically, Chapter 6, Part 2, Section 178 (2) states: “An election to the office of the governor of a state shall be held on a date not earlier than sixty days and not later than thirty days to the expiration of term of office of the holder of that office.” The first implication is that incumbent Governor Godwin Obaseki, was sworn in on November 12, 2016. This means that if no election holds on September, 19, 2020 as scheduled, by November 12, Obaseki must vacate the Denis Osadebey Avenue, the seat of power in the state.
The second implication is found in Section 180 (3) of the constitution as to when an election cannot hold or what may prevent an election from holding. The section states: “If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may be resolution extend the period of four years mentioned in subsection (2) of this section from time to time, but no such extension shall exceed a period of six months at any one time.”
Section 305. (1) amplifies that: “Subject to the provisions of this Constitution, the President may by instrument published in the Official – Gazette} of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof. (2) The President shall immediately after the publication, transmit copies of the Official -Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation. (3) The President shall have power to issue a Proclamation of a state of emergency only when – (a) the Federation is at war; (b) the Federation is in imminent danger of invasion or involvement in a state of war; (c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security; (d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger; (e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation; (f) there is any other public danger which clearly constitutes a threat to the existence of the Federation”.
While Section 191empowers that : “The deputy governor of a state shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with section 188 or 189 of this constitution.” The section cannot be applied should the election of September 19 is postponed because the current deputy governor runs a joint ticket with his principal, the governor.
Then subsection (2) of the Section 305 comes to the rescue thus: “Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Deputy Governor of the State is also vacant, the Speaker of the House of Assembly of the State shall hold the office of Governor of the State for a period of not more than three months, during which there shall be an election of a new Governor of the State who shall hold office for the unexpired term of office of the last holder of the office.”
Who is the Speaker of Edo Assembly?
Until Thursday, August 6, 2020, the answer to this question would have been a very straight forward one. This is because prior to that day, the only known Speaker of the state House of Assembly was Honourable Fran Okiye, elected speaker on June 17, 2019, following the proclamation issued by Governor Obaseki for the inauguration of the assembly. Of the 24-member house, only nine presented themselves for the exercise, while three others joined them some days after. The remaining 12, who are loyal to the Oshiomhole’s faction of the party, refused to be inaugurated and relocated to Abuja. They were with the former APC national chairman in Abuja and only relocated to Benin when Oshiomhole himself was sacked from office on June 25, 2020. From the blues, residents of Benin City woke up on August 6, 2020, to behold a siege to the Anthony Enahoro House of Assembly Complex as Victor Edoror, who was earlier ‘elected’ speaker at a sitting of the 12-member Assembly, held at a private residence in the Ugbor area of the Benin GRA, attempted to take over the complex. The ensuing fracas led to the arrest of seven men, who were only released on bail on September 7, 2020.
For the PDP, the inauguration of a factional House of Assembly by the APC on August 6 was a premeditated action with an avant-garde mission. The Edo PDP state publicity secretary, Chris Nehikhare, had at different press conferences, alluded to that incident as a calculated attempt by the APC to cause constitutional crisis so that if the election was postponed due to violence, they (APC) would project Edoror as the speaker to fulfill the intendment of Section 305 (2) of the constitution for the speaker to take over for a period of 90 days, pending when an election will be conducted. A Benin-based legal practitioner, Samuel Abasilim, shared Nehikhare’s views, as he told the Nigerian Tribune that: “People orchestrate violence when they know they are losing.”
But the Edo State Secretary the APC, Mr. Chris Azebamwan, however, countered, insisting that the allegation of violence being perpetuated by his party supporters in order to have the election postponed was a figment of the PDP imagination.
He alleged that from the inauguration of the 17 members of the Edo Assembly, where seven suspected thugs were arrested by the police at the complex to the destruction of APC billboards and the series of shooting, it was obvious that the PDP had a penchant for violence.
Similarly, Samson Osagie, a former member of the House of Representatives and leader of the Edo Progressive Movement (EPM), the APC pressure group responsible for the ouster of Governor Obaski from the party, said that: “First and foremost, I am strongly of the firm belief that Edo State election will hold and it will be peaceful. I’m very strong about that conviction. But you know, there is no vacuum in government and the tenure of a governor and his deputy cannot be elongated by one minute. Once it expires.”
On his part, the Speaker of the Assembly, Frank Okiye, declared: “I am not one of the ambitious people that want to become governor through the back door. But it must be put on record that there are no two speakers in Edo State because you cannot place something on anything and you expect it to stand. There are no two speakers in Edo State. I am the speaker. Can you expect logic to stand on its head? Illegality cannot beget illegality. Do you know that some persons went to address the press that they won election but no proclamation has been issued? They cannot just sit down and get a mace. I can tell you, nobody will listen to them. Let them go and do forgery of any document and see if the law will not punish them. They are no longer members of the house. They are not recognised; 14 of them. Why are we pretending? I am not a lawyer and even though you are not a lawyer too, there are certain commonsensical issues about the law. What is the correlation of people who have had their seats declared vacant now becoming members of the house, using a private residence to say they are impeaching this or impeaching that? It is not even about the impeachment. They don’t have the locus to stand and say they are honourable members. Let us look at the law. Let us not compound matters.”
Osaze Jesuorobo, member, PDP Campaign Publicity Committee, while responding to Osagie said that if the election is postponed, “the implication is that the speaker of the House of Assembly will be asked to be sworn in as the acting governor and INEC will have to conduct an election within 90 days or so. That is the implication. There is only one speaker recognised by law. Edoror cannot claim to be a speaker because he has been inaugurated and you know over year after the inauguration of the House, when the governor issued the proclamation for the inauguration, they refused to make themselves available to be sworn in and only 12 of them were sworn in. the other 12 refused to be sworn in. a Port Harcourt court ruled that that proclamation was in order and that the constitution does not allow the governor to make a second proclamation”
“Ever since, people have been expecting the remaining 12 to make themselves available to be sworn in and they did not. Then two of those who were sworn in, they went and join the 12 that were not sworn in Abuja. They have been in Abuja all the while. The Speaker, after the mandatory time, because he constitution says any member of the house who does not attend parliamentary sitting for 180 days in a year automatically loses the seat. And those who were sworn in and abandoned their beats, their seats were declared vacant. But for the12, they have not be sworn in up till now. So it is assumed that they also abandoned their seats and they are not even members- elect again having not made themselves available for swearing in and inauguration in a whole year of 365 days. So for the inauguration they did last week, first of all, the Deputy Clerk that they used, retired last year and the constitution is very clear: it is the Clerk of the House that can swear in the Speaker. A retired Deputy Clerk cannot swear in a Speaker, that is number one. Number two, in the case of Ladoja versus Oyo State House of Assembly, the Supreme Court made it explicitly clear that the proceedings of the House cannot be held at any other place except the Assembly ground that is certified for that purpose. So for them to have gone to hold a session in a private residence and for them to have gotten a retired Deputy Clerk to swear them in, definitely, that swearing in will not stand,” he submitted. Contacted to speak on the matter, Edoror responded that he was “very busy; lets us talk later.” Several calls made to his phone went unanswered.
What is the position of Port Harcourt Court?
The Federal High Court sitting in Port Harcourt, Rivers State, in the Suit No. FHC/PH/CS/159/2019 between Hon Yekini Idiaye & Anor Vs. Clerk of The NASS & 5 Ors, upheld the proclamation of the seventh Edo State House of Assembly made by Governor Godswin Obaseki. In the final judgment delivered by Justice J.K. Omotosho, the court ruled that a governor does not have the powers to issue a second proclamation after a first proclamation has been made. Justice Omotosho, noted that the governor of a state does not take directives from the National Assembly, adding that the proclamation issued by Governor Obaseki is valid; to do otherwise is null and void.
Proper sitting of Assembly?
The biggest flaw the two parties are exploring in the eventuality of the election not holding as scheduled is the validity of the two Houses of Assembly. While the Okiye-led assembly was inaugurated in 2019 at Anthony Enahoro House of Assembly Complex, Ring Road, Benin, the Edoror-led house had its first sitting at a private residence in Ugbor, GRA, Benin, where Mr. Samuel Efeizokhae, a former deputy Clerk of the assembly, performed the inauguration. Jesuorobo alluded to the Supreme Court judgment, where Justice Niki Tobi (.J.S.C) In Ladoja VS OYHA (SC/272/2006), and delivered on January 12, 2007 stated: “In my humble view, a community reading of the two sections show that the intention of the Constitution is to make the House of Assembly sit physically in the building provided for that purpose. If I am wrong and the appellants are right, it will then mean that the governor has to move to a Hotel to address the members anytime the House sits there and he wants to take advantage of section 108.”
Scare of State of Emergency?
If the above scenario plays out, the other option left in the Edo political debacle will be a declaration of a state of emergency by the president. Section 305 (3) empowers the president thus: “The President shall have power to issue a proclamation of a state of emergency only when – (a) the Federation is at war; (b) the Federation is in imminent danger of invasion or involvement in a state of war; (c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security.”
Jesuorobo submitted that the law did “not envisage a state of emergency where election does not take place.” He asserted: “A state of emergency can only be declared where there is anarchy, where there is a breakdown of law and order. As at today, there is no breakdown of law and order and I can assure you that between now and September 19, by the grace of God, there will be no breaking down of law.”
But Abasilim believed strongly that in the case of any confusion on who takes over if the election was postponed, President Buhari would declare a state of emergency. This, he said, would be beneficial to the president’s party. “The truth of the matter is that the president can do that and he will want to do that. You know why? Because he wants to benefit his party. Yes, he can use insecurity and say that because of that, he has the right. To be frank, he has the constitutional right to declare a state of emergency because he will benefit from it because now it is neither APC nor PDP,” the lawyer stated.
This was just as the APC, through the chairman, State Media Campaign Council, Mr John Mayaki, accused Governor Obaseki that his “antics are desperate and cumbersome to the judiciary,” further alleging that the governor was troubling the security agencies and the courts. In a statement issued on Tuesday, Mayaki said: “Now, Mr Obaseki on Monday visited the Inspector General of Police at the Force Headquarters in Abuja, where he expressed worry about the security of voters in the state. He claimed that the PDP was the provocateur of violence in the state.
On his part, the Commissioner of Police, Edo Command, Mr Johnson Kokumo, gave assurance of adequate security before, during and after the election, while on a courtesy call to Oba of Benin at his palace in Benin on last Wednesday. He said that maximum security would be provided, just as he stated that adequate measures were in place to avert violence and break down of order before, during and after the poll. He said that anyone found wanting, irrespective of position would be made to face the full wrath of the law. Kokumo disclosed that the police had joined forces with other security agencies, including the military to ensure a violence-free poll.
The assurances by the commissioner of Police of adequate security notwithstanding, the tension in the state remains palpable and only the two leading parties hold the ace to a peaceful poll on September 19.
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