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Re- Supreme Court decision on Ondo guber suit: Matters Arising

By Babatunde Ogala SAN

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 ought 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.

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, Arakunrin 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 Constitution guaranteed; 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 is
Immediate Past National Legal Adviser All Progressives Congress

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