JEGEDE V AKEREDOLU: IS ANDY UBA, A GONER?

Yesterday’s minority opinion of the Supreme Court which disqualified Governor Akeredolu’s candidacy for the last governorship election in Ondo State has set off alarm signals within the ranks of the APC, having regard to the legality of other party functions superintended by Governor Buni, in his capacity as Chairman of the APC Caretaker Committee. One of such functions was his signing and forwarding to INEC the nomination of Senator Andy Uba as the APC governorship candidate for the gubernatorial election coming up in Anambra State next November.

It might be desirable for Governor Buni to vacate his position as interim Caretaker Chairman, and for the APC to normalize its structures – but not necessarily on account of the judgment delivered yesterday by the Supreme Court in Akeredolu’s case. For, the Supreme Court did not decide that the Chairmanship of the APC Caretaker Committee was an “executive” position within the contemplation of section 183 of the Constitution, or that Buni was receiving salaries for that position – two situations that are forbidden by the Constitution concerning serving Governors.

The minority opinion read by Mary Odili, JSC, is not the judgment of the Court. The judgment of the Court is the majority opinion. That being the case, the RATIO DECIDENDI of the judgment of the Supreme Court is that because Governor Buni was not joined as a party in the suit, the Supreme Court was therefore not in a position to decide whether Buni’s Chairmanship of the APC Caretaker Committee was an executive position, or whether Buni was drawing salaries therefrom; an executive position is one in which the holder is involved in the day to day running of an organization.

But can there ever be a situation in which Governor Buni could be made a party to a suit in his capacity, over his chairmanship of the APC Caretaker Committee? It is doubtful, simply because of the immunity afforded him by section 308 of the Constitution which forbids in absolute terms his being made a party to civil or criminal litigation, in his capacity.

What it, therefore, means, for instance, is that a plaintiff seeking to disqualify Andy Uba as the APC Governorship Candidate in Anambra on account of the purported incompetence of his nomination, having been superintended by Governor Buni, must make Buni one of the defendants in the suit, for that point to be actionable. But that is not possible, for Governor Buni will at once raise a preliminary objection, citing the immunity afforded him by section 308.

That preliminary objection will succeed, and Governor Buni discharged from the suit, and the allegation against him discountenanced by the Court, going forward. It is therefore a constitutional cul de sac, which will afford Andy Ubah a technicality, on which to ride home.

Again, even though the Supreme Court did not say so yesterday, the law is trite that since section 183 of the Constitution which prohibits a serving Governor holding another executive position did not prescribe a penalty for its breach, actions affecting third party rights carried out by Buni would not be tainted by illegality. Section 183, therefore, appears to be a “code of conduct admonition” specifically addressed to the holder of the office of Governor, its breach only possibly crystallizing as a ground for the impeachment of the Governor himself – a political decision, with which we are not concerned here!

To opine otherwise is to render illegal the hundreds of oil contracts, and other actions in that critical sector, undertaken by President Buhari himself, who also holds another executive position of Petroleum Minister, in addition to the office of President and Commander in Chief of the Federal Republic, contrary to section 138 of the Constitution!

Kenneth Ikonne Esq