The ruling All Progressives Congress (APC) is taking stock of the recent Supreme Court judgment on the last governorship election in Ondo State and its implications for preparations for future elections. For now, the ruling party is on solid ground as far as Mai Mala Buni’s chairmanship is concerned. But, many stakeholders said, it must tread cautiously in the days to come, to defuse the tension in many states where factions are pulling the party in different directions. JIDE ORINTUNSIN gives an overview of the challenges facing the party and how they can be resolved
These are not the best of times for the governing All Progressives Congress (APC). The party which started with so much promise in 2014 is at best now a shadow of itself. A Supreme Court minority judgment has called to question the propriety of a sitting governor presiding over the affairs of the party. It has also has exposed series of systemic infractions against the very principles which won many Nigerians over in 2015.
Before its ascendancy, the ruling party promised to change the political ethos and practice by ensuring strict adherence to the rule of law, with its activities guided by law. Then, the party never shied away from accusing Peoples Democratic Party (PDP) of impunity and lack of political transparency.
Six years after, no change:
But six and the half year’s down the line, has anything changed? Is the ruling party keeping to its own rules? Has the country’s political space manifested the change the APC promised? The first infraction that would have sunk the party in 2014 was when some elements within the party attempted to foist a tenure extension for the National Working Committee (NWC) led by Chief John Odigie-Oyegun. Even the celebrated Comrade Adams Oshiomhole-led NWC did not make much difference. Rather the former labour leader was accused of being dictatorial in his bid at ensuring party supremacy.
Midway to his four-year term, governors and some tendencies in the party, through the instrumentality of the judiciary cut short Oshiomole’s leadership, an act that was widely condemned as being antithetical to the dreams of the party’s founding fathers.
The emergence of the Governor Mai Mala Buni-led 13-man Caretaker/Extra-Ordinary Convention Planning Committee (CECPC) at the emergency National Executive Committee (NEC) meeting of June last year gave new hope to party members and political observers in the country. The committee was set up with the mandate to conduct a special national convention within six months to elect a new NWC. But, the only thing the committee has achieved, after over one year, is the conduct of ward congresses nationwide to elect new leaders for the party. No date has been fixed for the national convention.
Growing challenges:
One of the mandates handed down to the Buni-led caretaker committee was the reconciliation of various aggrieved members across the country. The reconciliation effort, which initially attracted applause from party members, has since dwindled with cases of factions in many state chapters. From Anambra to Ekiti, Kwara, Osun, Ogun, Imo, Delta, Rivers, Kano, Enugu, Cross Rivers, and Akwa Ibom, the party has been engulfed in a leadership crisis. Zamfara State is now in turmoil, while Bayelsa State is not exempted from the intra-party crisis.
Despite the challenges within the party, the Yobe State governor-led caretaker committee has succeeded in attracting some high-level politicians, such as serving and former governors, former Speakers of the House of Representatives, members of national and state assemblies from opposition parties, particularly the PDP. But, this has since become an albatross for the ruling party.
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Besides, the just-concluded membership revalidation and registration exercise has also complicated the party’s woes. It exacerbated the struggle to hijack party structure and control in most states. The allegation of manipulation of the exercise in many states have further heightened the intra-party squabbles and rubbished the mileage gained by the caretaker committee to forge a better and united party.
Flouting of party directives:
In an attempt to insulate the caretaker committee from unnecessary legal actions that encumbered the dissolved Oshiomole-led NWC, the June 2020 NEC meeting directed all members to withdraw all legal actions against the party. The directive was largely adhered to initially, but as time goes by aggrieved members jettisoned the directive with members now approaching the court seeking redress for injustice suffered.
Disturbed by the growing litigations by members, the December 8, 2020 meeting of NEC, the party’s highest decision-making organ after the national convention had forbidden members from going to court. It directed that: “All pending litigations instituted by members against the party should be withdrawn forthwith and going forward, no member should institute matters against the party, without exhausting the internal mechanism for conflict resolution, as enshrined in the party’s constitution.”
Stressing the gravity of the decision, Secretary to the caretaker committee, Senator John James Akpanudoedehe in a recent statement reaffirmed that, “for the avoidance of doubt, the party shall deploy the full weight of the law as stipulated in section 21 (D) of our party’s Constitution on anyone who perpetrates such unlawful Act (s) and also on their sponsors.”
Buni in eye of storm:
In all these, the party’s leadership status and eligibility were hardly challenged. It was only the erstwhile National Vice Chairman (South-South), Hillard Eta that challenged the legitimacy of the committee in court; a move that has earned him expulsion from the party. Indeed, the propriety of Buni’s leadership was never questioned until the July 28, 2021, Supreme Court split judgment in the case between Etitayo Jegede of the PDP and Governor Oluwarotimi Akeredolu of the APC over the outcome of last year’s Ondo State governorship election.
The Supreme Court by a narrow split decision, of four to three, held that Akeredolu cannot be removed as Ondo State governor. The little technical point that saved the governor was that Jegede failed to join Buni in the suit. Jegede had challenged the competence of the sitting governor to run the affairs of the APC. The appellant contended that this is against Section 183 of the 1999 Constitution which states that a sitting governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever.
Supreme Court’s position:
Jegede and his party had on July 28 lost their appeal against Governor Akeredolu by split judgment of four-to-three by the Supreme Court for lack of merit. The PDP candidate and his party had approached the apex court to challenge the eligibility of Akeredolu and his deputy, Orimisan Aiyedatiwa to contest the October 10, 2020 governorship election.
They also contended that the fact that Buni signed Akeredolu’s nomination form submitted at Independent National Electoral Commission (INEC) as the national chairman of the APC invalidated the nomination, based on Section 183 of the 1999 Constitution, and Article 17(iv) of the APC constitution. The violated Section 183 holds that, “The governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever”. Similarly, Article 17(iv) of the APC constitution states that “No officer in any organ of the party shall hold an executive position in government concurrently”.
But, the majority judgment read by Justice Emmanuel Akomaye Agim, submitted that it would be unfair to try Buni in his absence in the contention that he was not qualified to sign the nomination form because it is one with grave consequences for the governor. Agim stated in the judgment: “The fair trial of such issue in his absence without joining him as a party is impossible. There is no need to stress the point that he is a necessary party to the case because the issue upon which the appellants have predicated their case, namely, the invalidity of the said exhibit itself cannot be fairly, effectually, and conclusively be determined without joining him as a party to the case.”
Based on Article 13.3(vi) of the APC constitution, the “National Executive Committee (NEC) has the power to create, elect and appoint any committee it may deem necessary, desirable or expedient and assign to them such powers and functions as it may deem proper”, the apex court held that being a voluntary organisation, the question of who should hold offices in the party cannot be entertained by any court. He added: “Those are non-justiciable questions. Courts have no jurisdiction over the internal affairs of a political party, except where the statute expressly gives a court jurisdiction to deal with any internal affairs of a political party.”
Minority judgment:
The three justices of the court in their minority judgment read by Justice Ejembi Eko allowed the appeal of the appellant and declared him the winner of the October 10 election.
They ruled that the non-joinder of Governor Buni would not occasion any substantial miscarriage of justice. Buni’s principal, the APC, they added, was already joined in the matter, thus, given his constitutional immunity in Section 308, his joinder would rather occasion injustice to the appellants (Jegede and PDP).
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The judgment reads: “On the principle of vicarious responsibility, I find it rather bizarre, spurious or preposterous, the contention that the non-joinder of Mai Mala Buni, the Governor Yobe State, whose immunity, under Section 308 of the constitution of the Federal Republic of Nigeria, insulates him and prohibits his joinder in any civil proceedings during his period in office as governor; had vitiated the petition; even when his appointor/principal had been made a party.”
On the verdict by the majority that appointments of members to committees by the party’s NEC was its internal affair, the minority justices declared that the appellants, who were seeking to protect the constitution from being contravened, have the locus standi to appear in court over the matter.
Eko stated in the minority judgment: “It is an issue raising the violation or contravention of the constitution of the Federal Republic of Nigeria. On this ground, I will not hesitate to dismiss offhand, the contention that the appellants lack the locus standi or reasonable cause of action on which to found their petition because Section 1(1) of the constitution provides, inter alia that the ‘Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.’”
Varied interpretations:
The apex court verdict generated a lot of controversy from the moment it was made public, with observers taking different positions. Minister of State for Labour, Festus Keyamo (SAN) asked the party to tread on the path of caution. In a statement, he observed that the narrow victory for Akeredolu at the court has put the legality or otherwise of the status of the occupant of the office of the national chairman to question.
Keyamo posited that the Supreme Court judgment has just weaponized all those that would be aggrieved by the APC congresses to proceed to court to challenge the competence of the Buni-led CECPC to organise the congresses and national convention. He expressed fear that the judiciary may subsequently destroy the entire structure of the party from bottom to top.
He said: “We (APC) are lucky the Supreme Court has just given us a great and useful hint to save our party just before the beginning of our congresses. We cannot gamble with this delicate issue. The time to act is now.”
In the same vein, former National Secretary of Labour Party (LP), Kayode Ajulo and the Leader of Progressive Youth Movement (PYM), Princess Zahra Mustapha Audu said the minority judgment eroded the legality of the CECPC, rendering it illegal, null, void. They added that the caretaker committee has no legal capacity to undertake any action on behalf and in the name of the party.
Ajulo, a legal practitioner, asserted that the national chairman and secretary are the alter egos of a political party, charged with the responsibility for the day-to-day running of the party. He pointed out that “provision of Section 183 of the 1999 Constitution (as amended) is clear and unambiguous to the effect that the governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever”.
Two presidential aides, Senators Babafemi Ojudu and Ita Enang want the party to pause all activities, retreat to appraise the legality of Buni’s continued occupation of the highest office of the party. The duo, like some aggrieved members, wants Buni to vacate his seat to avoid more information that may cause the party colossal damage.
The way out of the seeming political quagmire, Keyamo said, is for the party’s NEC to urgently consider the reconstitution of the CECPC to exclude Buni and Governors Gbenga Oyetola and Abubakar Sani Bello of Osun State and Niger State respectively, in line with Article 17 of the APC constitution.
For academic purposes only:
Alternatively, he called for the activation of the party’s Board of Trustees (BOT), which includes Mr. President, to organise the national convention in line with Article 13 of the APC Constitution where it is given such powers. Those powers can be delegated at the meeting to a committee, in line with the APC Constitution, to run the party and plan the convention. The new bodies can then plan for congresses.
But, Chief Niyi Akintola, a Senior Advocate of Nigeria, dismissed Keyamo’s and Ajulo’s positions. Akintola who was a governorship aspirant in Oyo State during the last general elections was emphatic in his interpretation of the judgment. He said: “There is nowhere in the judgment of the majority where the efficacy of the Office of our National Chairman was questioned. If anything, what happened was that the judgment of the tribunal that says that the holding of party position doesn’t contravene Section 183 of the Constitution still stands. That was the judgment that was given by the tribunal and upheld by the Court of Appeal and the Supreme Court. I don’t know why people are attributing so much to the judgment of the minority. It is of no value.”
Justifying his position on the controversial minority judgment, Akintola said: “A minority judgment remains what it is. It has no efficacy value. The only value a minority judgment has is for academic purposes and research. You can’t even cite it as an authority. Our jurisprudence doesn’t allow for any efficacy to be attributed to a minority judgment.”
He added: “The decision of the tribunal, upholding the right of any party member, including those who hold political offices, to hold party offices remain sacrosanct and that position was affirmed by the Court of Appeal and by the majority judgment yesterday. None of the four Justices that gave the majority judgment has anything to say concerning holding of party office concurrently with political offices. By the position of the Supreme Court, they have the right to determine issues without going into the merit, unlike the two lower courts.”
Osinbajo’s efforts:
Disturbed by the development, President Muhammadu Buhari who is currently on a medical trip to the United Kingdom (UK) directed his Vice President, a Professor of Law and a Senior Advocate of Nigeria, Yemi Osinbajo to intervene and ensure no further drift in the party.
But, sources within the Presidency said the Vice President’s efforts have yielded little or no result. While Osinbajo is reported to be in support of a change in the leadership of the party, to stall the fears being expressed by the Supreme Court judgment, his action is being frustrated by some under-handed actions from the office of Attorney General and Minister of Justice, Abubakar Malami and the Progressive Governors Forum.
While the likes of Keyamo called for caution and immediate replacement of Buni, governors elected on the platform of the party, saw nothing wrong with the political architecture, composition, and leadership of the caretaker committee.
The Progressive Governors Forum (PGF), in a statement by its Chairman and Governor of Kebbi State, Atiku Bagudu observed that Supreme Court upheld further the ruling of the Court of Appeal that “it is evident that the said Governor Mai Mala Buni was appointed only in an acting capacity temporarily to temporarily carry out and fill in the vacant office of the party’s national chairman, pending the elections of new members.”
The PGF said the holding of the Court of Appeal was not appealed against by the appellants i.e. Jegede (S.A.N) and his party, the PDP. The Supreme Court stated that “by not appealing against this holding, the parties herein accept it as correct, conclusive and binding upon them”.
Governors’ endorsement:
The governors averred that the apex court judgment has settled the issue of the propriety or otherwise of the National Caretaker and Extraordinary Convention Planning Committee. Bagudu said: “The court has correctly ruled that in line with Section 13.3 of the APC Constitution, the National Caretaker and Extraordinary Convention Planning Committee was constituted by the National Executive Council (NEC) of the APC to act as the National Working Committee. This ruling is consistent with the legal advice available to the APC in creating the committee.”
The governors argued further that Buni was appointed in an acting capacity, temporarily to carry out and fill in the vacant position of the APC national chairman, pending the election of the new chairman. Bagudu added: “This has settled conclusively that the APC National Caretaker and Extraordinary Convention Planning Committee. So, its composition is not in conflict with the constitution of the Federal Republic of Nigeria and is consistent with provisions of the Constitution of the APC.”
Despite the fear being expressed by concerned party stakeholders, the APC governors passed a vote of confidence on the leadership of Governor Mai Mala Buni. Commending the caretaker committee chairman, the governors said: “The commendable management of the affairs of the party, which has minimized distractions from the task of rebuilding the party. Under the committee, the party has continued to be strengthened and attract more Nigerians.”
No cause for alarm:
Dissecting the judgment, a member of the caretaker committee and chairman of the party’s Constitution Review Committee, Professor Mamman Tahir aligned himself with Akintola’s interpretation. Tahir, a former Director-General of the Nigerian Law School, said the apex court held that “the National Executive Committee (NEC) is empowered to create, elect and appoint committees (including the instant CECPC) or any other committee it may deem necessary to act in any capacity”.
Drawing strength from Article 18 ( i.) of the party’s constitution, which states that the party’s NEC has the power to set up a standing committee (s) and, “where necessary, ad-hoc committees”, Tahir declared that “the Caretaker and Extraordinary Convention Planning Committee (CECPC) headed by Governor Mai Mala Buni is on firm ground to proceed with its mandate as given by the National Executive Committee of the APC”.
On the propriety or otherwise of Buni acting as a sitting governor to occupy the position of the APC national chairman, vis-à-vis the provisions of Section 183 of the 1999 Constitution and Articles 13.3 (vi) and 17 (iv) of the APC Constitution of 2014 (as amended), Tahir said the Supreme Court relied copiously on the judgment of the Court of Appeal and agreed with same in resolving the issue.
Deflating the strong opposition to the legality of Buni occupying the office, the Deputy Senate President, Senator Ovie Omo-Agege observed that from the provision of Section 183 of the 1999 Constitution (as amended), “it is impossible and untenable to argue that the provisions of Section 183 bar a governor from being a chairman or member of a caretaker committee set up by his or her political party”. He added: “More so, the position of the chairman of a caretaker committee cannot by any sense of imagination, logic or simple common sense be classified as a being a salaried executive office.”
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Omo-Agege, Okechukwu’s view:
The lawmaker further argued that the caretaker committee was duly constituted by the NEC of the party and given a specific mandate to put necessary measures in place to conduct the national convention. He said: “There is no law under our legal jurisprudence that bars or prohibits a governor who is a member of a political party and won elections under the political party from carrying out specific assignments on behalf of his party. How this will amount to holding an executive office is beyond every stretch of human comprehension.
“In the light of the foregoing exposition, it is humbly and firmly stated that Section 183 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) only bars a governor from holding executive positions like being a minister, or any other executive positions for which he shall be paid for. It does not by any scintilla of imagination, render the appointment of Governor Bumi as APC caretaker committee chairman incompetent and will not in any way, affect the legality or competence of the APC scheduled congresses.”
Osita Okechukwu, the Director-General of Voice of Nigeria (VON) and a founding member of the party, is equally of the opinion that the fears being expressed over the Supreme Court judgment are unfounded. He said the party has to rely on majority judgment. His words: “I don’t think the fears being expressed is valid. We have to rely on the majority judgment, because it is a trite law that could be cited. The grandeur is majority judgment, not the minority judgment. I subscribe to the position of the chief law officer of the Federation and the Attorney General on this matter.”
Okechukwu said the position of the majority judgment was that Buni’s assignment is intact and that the party’s NEC has the powers to set up any committee and accordingly assign any of its members to any function.
Call for caution:
But, Gerald Ekunife, a member of the APC Professional Forum, advised the party to thread with caution. He said: “Majority judgment may be in favour of the party, the best thing for the party is not to take the risk. It is too risky.
He added: “With varied opinions, which are allowed in law, we have to treat all viewpoints canvassed with respect. It is not about the minority judgment alone, even there several comments in the majority judgment, especially on page 38, comments by the four justices that ruled in our favour. He mentioned things that if you follow verbatim, you will have no choice but to think along with lawyers that say let’s be careful, let us not proceed, it might hurt us.
“Comments in the majority judgment are loaded and legally pregnant. Let us err in favour of caution. Let us not wait until tested and we hang the fate of the ruling party on the decision of the court. Legal grand-standing or ego-tripping is not the way to go.”
Princess Audu also pitched her tent with the school of thought that the chairman should step aside and save the party from any danger. On the way forward, she said: “We would have lost that state but for God. However, we are not prepared to take chances anymore. We cannot keep playing this game with our future, with our lives. Enough is enough. We believe that within the APC, we have capable hands, former leaders regardless of generational differences at this point who can manage the affairs of our party. Why must it be an individual?
“At this point, I think it is a bit selfish for us to expect a sitting governor who has several issues to manage in his state because we have a lot of insecurity in the country and expect him to also lead a party like the APC. I do not think we are being fair to him. Gov. Buni is doing his best but as a party we are unfair. We have people who are not doing anything who can handle this party and protect it.”
Litmus test for the APC:
Though observers and some party stakeholders have shown deep concern for the developments within the party since the Supreme Court verdict, the Mai Mala Buni-led committee has since the judgment continue to forge ahead against all odds.
Just last week, the efforts of the embattled chairman yielded more fruitful results when a member of the PDP Board of Trustees, Senator Joy Emordi joined the progressive fold. She joined the party after three PDP governors had dumped the opposition party for the ruling party.
For the Secretary of the caretaker committee, Senator Akpanudoedehe the entire national and state caretaker committees are solidly behind the Buni. Akpanudoedehe said: “We stand firmly with the national chairman and we declare our unalloyed loyalty to him and the president. Our party is strong, resilient and we will continue to do so. This chairman has been able to lift the party from the wood into a skylight that is being recognized all over the world, so we will not dance to the beatings of the PDP. We will not be used to bring down the government of the APC.”
For now, the APC is on solid ground as far as Buni’s chairmanship is concerned. But, as a number of stakeholders have cautioned, it must tread cautiously in the days to come, to defuse the tension within the fold, particularly in many states where different factions are pulling the party in different directions. Indeed, the stakes are high within the two major parties, as preparations for the next general elections gradually get underway. With recent developments in the APC, observers keep asking if the ruling party will survive the heat or go the way of PDP in 2023.
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