If you read my submission above you will discover that we agreed on "vacant seat" as decided by the Supreme Court, but your bolded submission is wrong.

Subsection 2 is made subject to subsection 1. The effect therefore is that the four- year provision is made subject to the successor taking oath of office or any of the other subsub sections.
While the rest of the subsubsections like death, impeachment or resignation may act to short circuit the tenure, sub subsection (a) may act to elongate it, if for some reason swearing in cannot be carried out precisely on the 29th May for instance.

The operative phrase here is that Section 180(2) is made subject to subsection 180(1) permitting it to be so. So the four year under section 180(2) is not absolute. Alright!

What you are in essence saying is that if the successor is not sworn in for any reason within the next month, year or never sworn in, the current office holder can become a Life-Time President or Life-Time Governor! That is dead wrong! You should have sold the idea to OBJ to avoid the Third-term saga.

To re-iterate, 180(1)(a) cannot trump 180(1)(d) which states "or he otherwise ceases to hold office in accordance with the provisions of this constitution", i.e. you cannot violate the 4-year term since 180(2) goes with and is consistent with 180(1)(d)! The term expires due to 180(1)(a) or (180)(1)(b) or 180(1)© or (180)(1)(d)!

Your argument does not hold water. You cannot turn around that the requirement of Section 180(1)(d) is reinforced and consistent with Section 180(2), when Section 180(2) itself had already been EXPRESSLY subject to every provision (a-d) of Section 180(1)

What we think that we know sometimes deprive us from knowing what we do not.

Your idea that a life governor or president may be occasioned by not swearing a new person is a very unlikely scenario, because election would be conducted based on that part of the constitution a winner will emerge so swearing must take place, it may be delayed for a few days. What will you think would have happened if the Supreme Court had nullified Yardua's election thru' accelerated hearing before the swearing in?
Of course OBJ would have continued till new elections are conducted.

On Governor Obi of Anambra's Reinstatement by the Supreme Court: The Relationship between Section 180 (1) and (2) of the Nigerian Constitution. 

Dr. 'Gbenga Bamodu*

---

It is a very interesting time in Nigeria currently as far as constitutional interpretation goes. In an important judgment with serious practical, political and legal ramifications, the Nigerian Supreme Court has ruled that under section 180 of the Nigerian Constitution, a governor's tenure of four years commences from the date that the governor took the oath of office and expires four years from that date. 

On the face of it, this is a routine judgment giving a clear interpretation of straightforward constitutional provisions. The background to the case however reveals that the situation is not at all entirely straightforward. In brief, Mr. Peter Obi contested elections run in Anambra in 2003. The electoral authority declared that election to have been won by another candidate in the person of Dr. Chris Ngige. Accordingly, Dr. Ngige was sworn in as governor in 2003 under a term to run for four years thus ending in 2007. However, Mr. Obi challenged Dr. Ngige's "victory" in the courts with ultimate success in 2006 when it was finally held that the election of 2003 had in fact been won by Obi and Nigige was ordered to vacate the office for Obi. Following his success in the courts Obi was sworn in as governor of Anambra (he took "the oath of allegiance and oath of office" on March 17, 2006.

For clarity, the governorship election for Anambra state contested by Peter Obi in 2003 was part of governorship elections contested nationwide for each of the 36 states of Nigeria. The expectation was that the term of office of each state governor elected in 2003 was to end in 2007 when fresh governorship elections would once again be held for all 36 states in accordance with the Constitution. In other words the expectation, in ordinary circumstances, is that all the governors will be elected in the same year and their term to run and end at about the same time four years later. Thus, while Peter Obi's case was yet to be decided by the Supreme Court, governorship elections were held in 2007, reflecting the normally expected end of the terms of the governors elected in 2003, and one "Dr." Andy Uba was declared to be the winner of the governorship election in Anambra.

The major issue of general political principle in Peter Obi's case was thus whether he should be regarded as completing a four year term that had commenced in 2003 or whether he should be regarded as having only commenced a four year term from the date "he took the oath of allegiance and oath of office" i.e. from March 17, 2006, in which case both he and Andy Uba could not be governor at the same time. As an issue of general principle and observation, to conclude that Obi's term started from March 17, 2006 would automatically place Anambra state out of political step with the other 35 states of Nigeria, in that governorship elections in Anambra state could only be held 3 years after the latest governorship elections in the other states.

However, the Supreme Court's primary purpose of course is to interprete the law and the primary provisions that the Supreme Court had to interprete were the provisions of section 180(1)&(2) of the Constitution. These provisions are reproduced below:

180. (1) subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until -

(a) When his successor in office takes the oath of that office; or

(b) he dies whilst holding such office; or

© the date when his resignation from office takes effect; or

(d) he otherwise ceases to hold office in accordance with the provisions of this constitution.

(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when -

(a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and

(b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

The principal focus of the judgment of the Supreme Court is s. 180(2) which provides that the governor shall vacate his office at the expiration of four years from the date he took the oaths of allegiance and of office. On an obvious literal interpretation of this provision, the court took the view that as Peter Obi was sworn in as governor of Anambra state on March 17, 2006 his term of office does not end until March 17, 2010 (sic). It is to be borne in mind, however, that s.180(2) is expressly declared subject to section 180(1). 

The parts of s.180(1) that have a specific bearing on the present case are paragraphs (a) and (d) which provide that a person shall hold the office of Governor of a State until when his successor in office takes the oath of that office or he otherwise ceases to hold office in accordance with the provisions of this constitution. As far as s.180(1)(d) is concerned, there is obviously no question of inconsistency with s.180(2) in that s.180(1)(d) lays down the foundation on which s.180(2) could operate. With s.180(1)(a), there is need for a deeper consideration in establishing consistency between it and section 180(2). 

As s.180(2) is expressly declared subject to section 180(1), it is submitted that the provision that determines the maximum length of time that a person can hold the office of governor for one term is s.180(1)(a) of the Constitution. Specifically, that maximum length of time is "until when his successor in office takes the oath of that office". Thus, even though s.180(2) provides that a governor shall vacate office four years after the date he was sworn in, the governor may nevertheless remain in office beyond that date, in accordance with s.180(1)(a), if the date of swearing in of his successor is later than that date. In other words, a person may remain in office as governor beyond four years after his swearing in until his successor is sworn in. It is also worthwhile to point out that despite the provisions of s.180(2) allowing a governor a term of four years from the date of his swearing in, such term is not absolute as, apart from death, a governor may serve less than four years as a result of resignation or impeachment for example.  

It is understood that the Supreme Court will give full reasons for its decision on 13^th July 2007. It is to be hoped that in providing the full explanation, the court will expatiate upon the relationship, in particular, between, s.180(1)(a) and s. 180(2)(a) of the Constitution and provide clarification once and for all. Specifically, there is a concern that s.180(2)(a) might have been given greater importance than section 180(1)(a) to which the former is subject. In other words, it is submitted that the proper approach is firstly to establish whether a successor to the incumbent/outgoing governor had taken the oath of office irrespective of whether four years had expired from when the incumbent/outgoing governor himself took the oath. The converse approach, which is believed to be inaccurate, is to say that as four years had not expired from when an incumbent/outgoing governor was sworn in, there could not be a successor.  

In making the above observation, it is not suggested that the final outcome of the Supreme Court would automatically be different if the first approach was followed in that what the Supreme Court has said is slightly but significantly different. What the Supreme Court has said is that an election should not have been conducted "into an office that could not be said to be vacant." This runs dangerously close to being read, unless qualified in the expected full explanation, as saying that as long as an incumbent's tenure is still subsisting, there cannot be a valid election to the office. It follows obviously that in the absence of a legally valid election, there cannot be an elected successor to the incumbent. On the other hand, however, elections are generally held for the succession while the incumbent is indeed still lawfully in office prior to a subsequent date of handover upon the swearing in of the successor. It is therefore suggested that it is desirable for the Supreme Court to provide further cogent and detailed reasons as to why the Anambra governorship elections held in 2007 are not valid as a prelude to a holding that its application of s.180(2) as determinative of this case has not caused prejudice to the primacy of s.180(1). 

As a postscript, it is worth noting that the fact that this matter has been pursued solely through the judicial process is a reflection of some of the positives in the Nigerian system despite the gaping shortcomings of current civilian/democratic rule.  

* Dr. Bamodu teaches law at the University of Essex (UK) and is a barrister and solicitor of the Supreme Court of Nigeria.

..Read the full article

On Governor Obi of Anambra's Reinstatement by the Supreme Court: The Relationship between Section 180 (1) and (2) of the Nigerian Constitution. 

Dr. 'Gbenga Bamodu*

---

It is a very interesting time in Nigeria currently as far as constitutional interpretation goes. In an important judgment with serious practical, political and legal ramifications, the Nigerian Supreme Court has ruled that under section 180 of the Nigerian Constitution, a governor's tenure of four years commences from the date that the governor took the oath of office and expires four years from that date. 

On the face of it, this is a routine judgment giving a clear interpretation of straightforward constitutional provisions. The background to the case however reveals that the situation is not at all entirely straightforward. In brief, Mr. Peter Obi contested elections run in Anambra in 2003. The electoral authority declared that election to have been won by another candidate in the person of Dr. Chris Ngige. Accordingly, Dr. Ngige was sworn in as governor in 2003 under a term to run for four years thus ending in 2007. However, Mr. Obi challenged Dr. Ngige's "victory" in the courts with ultimate success in 2006 when it was finally held that the election of 2003 had in fact been won by Obi and Nigige was ordered to vacate the office for Obi. Following his success in the courts Obi was sworn in as governor of Anambra (he took "the oath of allegiance and oath of office" on March 17, 2006.

For clarity, the governorship election for Anambra state contested by Peter Obi in 2003 was part of governorship elections contested nationwide for each of the 36 states of Nigeria. The expectation was that the term of office of each state governor elected in 2003 was to end in 2007 when fresh governorship elections would once again be held for all 36 states in accordance with the Constitution. In other words the expectation, in ordinary circumstances, is that all the governors will be elected in the same year and their term to run and end at about the same time four years later. Thus, while Peter Obi's case was yet to be decided by the Supreme Court, governorship elections were held in 2007, reflecting the normally expected end of the terms of the governors elected in 2003, and one "Dr." Andy Uba was declared to be the winner of the governorship election in Anambra.

The major issue of general political principle in Peter Obi's case was thus whether he should be regarded as completing a four year term that had commenced in 2003 or whether he should be regarded as having only commenced a four year term from the date "he took the oath of allegiance and oath of office" i.e. from March 17, 2006, in which case both he and Andy Uba could not be governor at the same time. As an issue of general principle and observation, to conclude that Obi's term started from March 17, 2006 would automatically place Anambra state out of political step with the other 35 states of Nigeria, in that governorship elections in Anambra state could only be held 3 years after the latest governorship elections in the other states.

However, the Supreme Court's primary purpose of course is to interprete the law and the primary provisions that the Supreme Court had to interprete were the provisions of section 180(1)&(2) of the Constitution. These provisions are reproduced below:

180. (1) subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until -

(a) When his successor in office takes the oath of that office; or

(b) he dies whilst holding such office; or

© the date when his resignation from office takes effect; or

(d) he otherwise ceases to hold office in accordance with the provisions of this constitution.

(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when -

(a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and

(b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

The principal focus of the judgment of the Supreme Court is s. 180(2) which provides that the governor shall vacate his office at the expiration of four years from the date he took the oaths of allegiance and of office. On an obvious literal interpretation of this provision, the court took the view that as Peter Obi was sworn in as governor of Anambra state on March 17, 2006 his term of office does not end until March 17, 2010 (sic). It is to be borne in mind, however, that s.180(2) is expressly declared subject to section 180(1). 

The parts of s.180(1) that have a specific bearing on the present case are paragraphs (a) and (d) which provide that a person shall hold the office of Governor of a State until when his successor in office takes the oath of that office or he otherwise ceases to hold office in accordance with the provisions of this constitution. As far as s.180(1)(d) is concerned, there is obviously no question of inconsistency with s.180(2) in that s.180(1)(d) lays down the foundation on which s.180(2) could operate. With s.180(1)(a), there is need for a deeper consideration in establishing consistency between it and section 180(2). 

As s.180(2) is expressly declared subject to section 180(1), it is submitted that the provision that determines the maximum length of time that a person can hold the office of governor for one term is s.180(1)(a) of the Constitution. Specifically, that maximum length of time is "until when his successor in office takes the oath of that office". Thus, even though s.180(2) provides that a governor shall vacate office four years after the date he was sworn in, the governor may nevertheless remain in office beyond that date, in accordance with s.180(1)(a), if the date of swearing in of his successor is later than that date. In other words, a person may remain in office as governor beyond four years after his swearing in until his successor is sworn in. It is also worthwhile to point out that despite the provisions of s.180(2) allowing a governor a term of four years from the date of his swearing in, such term is not absolute as, apart from death, a governor may serve less than four years as a result of resignation or impeachment for example.  

It is understood that the Supreme Court will give full reasons for its decision on 13^th July 2007. It is to be hoped that in providing the full explanation, the court will expatiate upon the relationship, in particular, between, s.180(1)(a) and s. 180(2)(a) of the Constitution and provide clarification once and for all. Specifically, there is a concern that s.180(2)(a) might have been given greater importance than section 180(1)(a) to which the former is subject. In other words, it is submitted that the proper approach is firstly to establish whether a successor to the incumbent/outgoing governor had taken the oath of office irrespective of whether four years had expired from when the incumbent/outgoing governor himself took the oath. The converse approach, which is believed to be inaccurate, is to say that as four years had not expired from when an incumbent/outgoing governor was sworn in, there could not be a successor.  

In making the above observation, it is not suggested that the final outcome of the Supreme Court would automatically be different if the first approach was followed in that what the Supreme Court has said is slightly but significantly different. What the Supreme Court has said is that an election should not have been conducted "into an office that could not be said to be vacant." This runs dangerously close to being read, unless qualified in the expected full explanation, as saying that as long as an incumbent's tenure is still subsisting, there cannot be a valid election to the office. It follows obviously that in the absence of a legally valid election, there cannot be an elected successor to the incumbent. On the other hand, however, elections are generally held for the succession while the incumbent is indeed still lawfully in office prior to a subsequent date of handover upon the swearing in of the successor. It is therefore suggested that it is desirable for the Supreme Court to provide further cogent and detailed reasons as to why the Anambra governorship elections held in 2007 are not valid as a prelude to a holding that its application of s.180(2) as determinative of this case has not caused prejudice to the primacy of s.180(1). 

As a postscript, it is worth noting that the fact that this matter has been pursued solely through the judicial process is a reflection of some of the positives in the Nigerian system despite the gaping shortcomings of current civilian/democratic rule.  

* Dr. Bamodu teaches law at the University of Essex (UK) and is a barrister and solicitor of the Supreme Court of Nigeria.

..Read the full article

You guys are excellent in your arguments. But the rule of law must be followed. I am very satisfied by the maturity shown by both actors in upholding the order of the court, otherwise this discussion would have been different. As a footnote, the concept of democracy and the rule of law is quite new to most Nigerians. As we develop our mentality and due process, I hope we will be there one day.
You guys are awesome.

Daaloy

I beg to differ on that submission as regards the ability of OBJ to continue should the SC have nullified Yaradua's election.
Should that happen, then section 135(2) shall apply to limit his term in office to 29 May, and then the provisions of section 146 shall then apply.

Based on this, any which way, OBJ would have had to vacate his seat, as he would have no legal or constitutional reason to be in power.