The news must have hit them like a bomb! One thing is certain in our legal jurisprudence. That our democracy is run on the constitutional model. In other words, answers to any constitutional impasse shall be found within the constitution itself. The news running on the front burner in recent weeks is that the newly inaugurated government of Ekiti State has dissolved all the local councils in the state presumably manned by the PDP. Is this action legal? I have read Fayemi say that this action became necessary since the Oni’s government was illegal. He hinged his argument based on the fact that the Court of Appeal nullified Oni’s election. Nullifying his election and declaring his government illegal are two different concepts. I shall explain. One, the constitution does not recognize a vacuum at any executive level of government. Two, what the Appeal Court has done is to state that by valid votes cast at the election, Oni could not have won. The court lacks the jurisdiction to make enquiry into the legality of his government or otherwise. Section 176 of the constitution created the office of the executive governor and stated that there shall be a governor for each state of the federation. At all times there shall be executive governor of each state or a governor in acting capacity. More so, the law as stated by the Court of Appeal in Mohammed V. Mohammed (2008) 6(Pt.1082) P.88 is that the correctness and authenticity of election results declared by INEC is presumed. Arguing from this scenario, Oni’s declaration by INEC as the winner of the 2007 Ekiti gubernatorial election is presumed correct until the Court of Appeal decided otherwise. This does not have any implication on the legality or otherwise of his government as the court did not decide on that. Therefore, the period Oni found himself in government was legal and all his actions founded upon the constitution are legal including the local government election he conducted while in office.
It is in this context that we shall state the law as it is regarding Fayemi’s dissolution of the local councils. First and foremost, section 7 of the constitution guarantees democratically elected local government councils. In Akpan V. Umoh (2002) 7 NWLR (Pt.767) 730-732, Ekpe JCA held that “ inasmuch as I do not doubt the legislative power of the State House of Assembly to make a law to regulate a Local Government Council but any law made the House of Assembly Which Provides for nomination of members of a Council or committee to replace a democratically elected council is inconsistent with the clear and unambiguous provisions of section 7(1) of the 1999 Constitution which guarantees democratically elected Local Government Council and is therefore unconstitutional to the extent of the inconsistency.” It flows from this premise that once tenure of an office is secured by statute, the removal of a person occupying that office cannot be done by executive fiat. The provision of such law creating the office must be complied with. It is pertinent at this point restate the position of Esin J, in Akpan V. Attorney General, Cross River State (1982) 3 NCLR 881 where His lordship held that “this section is firstly, a declaration of guarantee by the Constitution of a system of Local Government by means of democratically elected Local Government Council and secondly, a mandate that such councils are established under a Law. This is a compulsory non discretionary obligation. No state government can provide for councils that are democratically constituted, or rather constituted by means of democratic elections.” In this wise, Fayemi cannot constitute any caretaker committee to man the local councils. The local council chairmen were properly elected and therefore the law is that they shall remain in office until their tenure elapsed by the provision of the statute creating them.
If His Excellency is still doubting the law, I shall fortify this argument by stating that it is never intended by the law that these council chairmen should suffer any political discrimination simply because the PDP has lost the state. In Gov. of Kwara State & Anor. V. Ojibara & 6 Ors.( 2006) 11-12 SC, a brief fact of the case was that a new governor took over the rein of leadership in the state just as Fayemi has done in Ekiti State and dissolved all the statutory commissions in the state including the state’s independent electoral commission. Declaring the governor’s decision as null and void, Oguntade held that the commissions’ fortune should not be affected by the change of government in the state. His lordship said that “it is not the intendment of the constitution that the membership of those commissions should change with the fortunes of the political parties in a state.’’ I wish Fayemi reads this and have a change of mind.