OPINION: Implications of Ekwo’s judicial activism

SLAM dunk is a basketball term. Ordinarily, it means a shot in which a player thrusts the ball down through the basket. In that situation the player cannot miss. The score is certain. In other spheres of life slam dunk means “something reliable or unfailing; a foregone conclusion or certainty”. For Ebonyi state governor David Nweze Umahi and deputy governor Eric Kelechi Igwe, the outcome of the court case instituted against them, the All Progressives Congress [APC] political party and the Independent National Electoral Commission [INEC] by the Peoples Democratic Party [PDP] was supposed to be a slam dunk or a piece of cake or a walk in the park or dead on arrival. It has turned out not to be, at least for now. And the shock of the declaratory judgment on March 8, 2022 by Justice I. E Ekwo of a federal high court sitting in Abuja has sent shockwaves throughout the country and sent lawyers scrambling for explanations and interpretations. Even non lawyers including yours sincerely have also been weighing in.

The question by legally literate and non-literate commentators has been how to explain this bolt out of the blues. Some commentators have even suggested that Justice Ekwo, by delivering his audacious judgment, was being fatalistic and putting his judicial career in grave peril. The initial reaction of Gov. Umahi was to call the judge unprintable names and of habouring a hidden agenda against his person and the state he governs. Indeed Umahi, in a fit of anger, openly accused Judge Ekwo of being bribed to rule against him. He claimed that he knew long before the verdict that the judgment would go against him. Umahi promised to craft a petition against Judge Ekwo to the National Judicial Council [NJC] for disciplinary action. He declared that he would not obey Ekwo’s judgment ordering him to vacate the office of the governor and to stop forthwith parading himself as the governor of Ebonyi state. Instead Umahi said he would only obey the judgment of an Abakaliki, Ebonyi state high court that affirmed the legality of his governorship. In other words, Umahi told the world that he would pick and choose the court judgment he would obey. Secondly, the publicly stated and well publicized threats of Gov. Umahi was a blatant and reckless attempt to intimidate Judge Ekwo and, by extension, the Nigerian judiciary. It is true that the angry governor has since recently and gone to the Appeal Court to challenge the judgment but he still has an obligation to petition the NJC to expose Ekwo as a bribe-for-judgment judge. If not for any other thing the governor’s petition, if he is honest, will help in ridding our judiciary of corrupt judges. But if he fails to establish any malfeasance against this judge that bruised his fragile ego, then it would have been clear that Umahi is unfit for the high office he occupies. And the higher office he is seeking.

I have read the 63-page judgment of Justice Ekwo which core issue for resolution was whether the Ebonyi state governor and his deputy who were elected in 2019 on the platform and sponsorship of the PDP, and who later defected to the APC could still hold on to their offices. I am not a trained and certificated and practicing lawyer in Nigeria or anywhere else. So my reading and understanding of the judgment would at best be rudimentary. But if our system permits the use of jury and I was a juror in the instant case I certainly would have returned the same verdict as Justice Ekwo did. The defence team of Umahi and Igwe was not diligent in the defence of their clients. They were sure that it was settled case with the judgment in a similar case in Zamfara state and pronouncements by the appellate courts in the past on similar cases. The team went to sleep while the PDP through it lawyers diligently and meticulously formulated, articulated and presented their case in a persuasive manner that left the judge with no option than to rule in their favour.

My reading of this case and the subsequent judgment is that Gov. Umahi and his deputy may have been lulled to relax and sleep on their case because of section 308 of the 1999 Nigerian Constitution [as amended] which shields them from civil and criminal prosecution as sitting governor and deputy. They verily believed that the immunity clause is ABSOLUTE and INVIOLABLE. They probably did not reckon that a day would come when an activist judge would preside over such matters. We have been told that the law is an ass so I will not go ahead of myself to say that it would take ultra-conservative panels of appellate courts to upturn what appears to be a reasoned and thorough verdict of Justice Ekwo. It must be acknowledged, however, that appellate courts do not in all cases rely on the fine points of the law to reach their verdicts. They sometimes go beyond the law in their rulings so as to preserve the health and wellbeing of society. And our Supreme Court in recent years has not been averse to making judgments that at best are befuddling. No matter how this celebrated case ends, Nigeria will be the better for it. It will enrich the country’s jurisprudence. The sad thing is that for as long as this case lasts, it will distract a governor who I understand is delivering brick and mortar dividends of democracy to his people.

But the sympathy for the performing governor notwithstanding, it will take an effort to ignore the methodical demolition by the judge of the feeble defence of Umahi by his lawyers as we will briefly summarize.

To reach his conclusions Ekwo finds that votes won by a political party cannot be transferred to or utilized for the benefit of another political party or a member of another political party; a candidate of a political party that won the majority votes at an election is not entitled to retain or continue to lay claims to the votes won by the political party after defecting to another political party; the defecting candidate can only inherit, utilize or appropriate the votes won by the new political party he has adopted; that no part of Nigeria, including Ebonyi state, can be governed by a political party or a member of a political party other than the political party or its member who won the majority of the lawful votes at the election into the office concerned; that the PDP won the majority of lawful votes at the governorship election on March 9, 2019 and is entitled to retain the majority votes it won at the election throughout the duration of and the tenure of that office, that is from May 29, 2019 to May 28, 2023; that the APC won or scored 81,703 votes at the said governorship election as against the majority lawful votes of 393,343 votes scored or won by the PDP; that the APC cannot appropriate the votes of the PDP directly or indirectly through its member or members namely Umahi and Igwe for the purpose of governing or ruling over Ebonyi state for the period of May 29, 2019 to May 28, 2023.

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Ekwo further declared that the PDP is entitled to submit to INEC the name of its candidates to replace Umahi and Igwe for the purpose of utilizing the lawful votes cast in favour of the PDP; that alternatively INEC is bound to hold a gubernatorial election arising from the abandonment of the majority lawful votes and the offices occasioned by the action of Umahi and Igwe in becoming members of the APC which did not win the majority lawful votes cast at the election. Justice Ekwo said that Nigeria’s democracy could be imperiled if elected office holders are allowed to whimsically continue to merchandize with the votes of the electorate.

But given the recent ultra-conservative leaning of Nigeria’s Supreme Court, has Justice Ekwo set off fireworks that could consume him or that could reinvigorate what appears to be a timid judiciary? Time will tell.

Author: Ugo Onuoha

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Articles published in our Graffiti section are strictly the opinion of the writers and do not represent the views of Ripples Nigeria or its editorial stand.

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