Nigerian Concord Newspaper
A former Commissioner for Justice and Attorney General of Benue State, Alex Ter Adun, PhD has stated why the Supreme Court judgement doesn’t disqualify the Governorship candidate of the People’s Democratic Party, Chief Michael Kaase Aondoakaa, SAN from contesting the 2027 gubernatorial election.
Barrister Alex Adum, chieftain of the African Democratic Congress, a ADC in the state stated this in a press statement he personally signed and made available for publication this evening.
In his statement, Adum said that the proposition that the Supreme Court has permanently barred Chief Michael Kaase Aondoakaa, SAN, from contesting the office of Governor of Benue State in 2027 is, with respect, not supported by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), nor by settled principles of Nigerian constitutional and electoral jurisprudence.
According to him, the starting point is the Constitution itself. By virtue of Section 1(1) of the Constitution, is supreme and its provisions are binding on all authorities and persons throughout the Federal Republic of Nigeria. Section 1(3) further provides that where any other law is inconsistent with the Constitution, the Constitution shall prevail and the inconsistent law shall, to the extent of the inconsistency, be void.
The former Benue Attorney General said that the constitutional qualifications for election as Governor are exhaustively provided under Section 177, while the grounds for disqualification are expressly contained in Section 182 of the Constitution. “These provisions constitute a complete constitutional code on eligibility for the office of Governor. They do not include a prior civil judgment restraining a person from holding public office as a ground of constitutional disqualification” he added..
He wrote: “The 1999 Constitution (as amended) draws a clear distinction between appointment to public office and election to public office, and the two concepts are neither synonymous nor interchangeable.
“First, elected offices derive their legitimacy directly from the sovereign will of the electorate expressed through the ballot. The Constitution separately prescribes qualifications and disqualifications for elective offices under Sections 65, 66, 106, 107, 131, 137, 177 and 182. Occupancy of these offices is determined through elections conducted by INEC pursuant to Sections 76, 116, 132 and 178 of the Constitution.
“Conversely, appointed public offices derive their legitimacy from the constitutional or statutory appointing authority. Appointments are governed by distinct constitutional provisions, including Sections 147, 171, 192, 197, 208 and 271–296 of the Constitution, depending on the office concerned. Such offices are filled by executive nomination, confirmation where required, or other prescribed appointment procedures, not by popular election”
Adum pressed further that the Supreme Court has consistently recognized this distinction, adding that in *A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1,* the Court emphasized that constitutional offices derive their existence, powers and tenure strictly from the Constitution, and each category of office must be interpreted within its own constitutional framework.
“Similarly, in *PDP v. INEC (1999) 11 NWLR (Pt. 626) 200,* the Supreme Court reiterated that elective offices are products of the electoral process established by the Constitution and the Electoral Act, making them fundamentally different from offices filled through executive appointment.
“The Court of Appeal in *INEC v. Musa (2003) 3 NWLR (Pt. 806) 72,* affirmed by the Supreme Court, also underscored that the right to contest an election is a constitutional and political right regulated by the Constitution and electoral laws, not by the principles governing appointments into the public service” he stated.
Accordingly, Adun said that a constitutional or statutory restriction relating to appointment into public office cannot automatically be imported into the constitutional regime governing election into public office, unless the Constitution expressly provides so.
He declared that Courts have repeatedly held that where the Constitution intends a disqualification to apply to an elective office, it expressly says so, stressing that it is therefore impermissible to enlarge constitutional disqualifications by implication of a judicial pronouncement outside those stated in the constitution. “See *A.G. Bendel State v. A.G. Federation (1981) 10 SC 1,* where the Supreme Court held that the Constitution must be interpreted according to its clear words and courts are not permitted to read into it, provisions that are not there” he noted.
To him, the constitutional consequence is that while every elective office is undoubtedly a public office, not every constitutional provision relating to appointment into public office governs election into public office, noting that the two are distinct constitutional pathways with separate qualifications, procedures, tenure and legal consequences. “Any attempt to conflate them would offend the settled principle that constitutional qualifications and disqualifications must be construed strictly and cannot be extended by implication” he added.
He further wrote that: “The Supreme Court has consistently held that where the Constitution has expressly stated the qualifications or disqualifications for an elective office, neither the courts nor any other authority may introduce additional conditions. In *PDP v. INEC (1999) 11 NWLR (Pt. 626) 200,* the Court emphasised that constitutional qualifications for elective office cannot be enlarged by implication. Likewise, in *Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199,* the Supreme Court reiterated that constitutional provisions regulating tenure and eligibility must be interpreted strictly in accordance with their express language.
“Accordingly, unless Chief Aondoakaa falls within any of the disqualifying circumstances enumerated under Section 182, he remains constitutionally qualified to contest.
“It is true that in *Aondoakaa v. Obot & Anor. (SC.939/2015),* the Supreme Court affirmed the concurrent judgments of the lower courts. However, it is a settled principle that every judgment must be read as a whole. Courts have repeatedly cautioned against isolating a sentence or paragraph from its context. See *A.G. Federation v. A.G. Abia State (No. 2) (2002) 6 NWLR (Pt. 764) 542,* where the Supreme Court held that a judgment must be construed in its entirety to ascertain its true ratio decidendi”
Adum pressed further that much reliance has been placed on the lead opinion of Justice Kudirat Kekere-Ekun that Chief Aondoakaa *”ought not to be entrusted with any other public office at all.”* Respectfully, that observation must be understood in its proper jurisprudential context, noting that a lead judgment only forms part of the Court’s decision of the constituted panel,but does not expand the ratio decidendi beyond the issues submitted for determination. “It cannot create a new constitutional ground of disqualification where none exists” he added.
He said: “Indeed, another member of the panel, Justice Mary Peter-Odili, expressly observed that the issue of Chief Aondoakaa’s qualification to hold future public office did not arise for determination in the appeal. That observation is significant because courts are bound to decide only issues properly placed before them. Nigerian courts have consistently maintained that they do not make pronouncements on hypothetical or academic questions. See *A.G. Lagos State v. A.G. Federation (2014) 9 NWLR (Pt. 1412) 217.*
“Furthermore, the right to seek elective office is a constitutional and democratic right. While it is subject to constitutional limitations, those limitations must be expressly provided by the constitution. The courts have consistently rejected attempts to read into the Constitution words that are not there. In *Rabiu v. State (1980) 8–11 SC 130* , the Supreme Court held that constitutional provisions should receive a broad and liberal interpretation in favour of the enjoyment of constitutional rights rather than one that unnecessarily restricts them.
“There is also no express declaration in the Supreme Court’s judgment that Chief Aondoakaa is disqualified ” *for life* ” from contesting elective office. Such language does not appear in the operative orders of the Court. It would therefore be legally unsafe to infer a lifetime constitutional disability from observations (obiter dictums) that were not translated into an express constitutional order.
“Ultimately, under Nigeria’s constitutional democracy, eligibility for elective office is determined first and foremost by the Constitution. Unless a candidate is shown to be caught by one or more of the disqualifying provisions of Section 182. or unless there is a subsequent binding judicial pronouncement specifically on the constitutional provision of section1 82 read together with section 285 (14)(9) as relate to the purported disqualification of Michael Aondoakaa interpreting the Supreme Court’s earlier decision in a non electoral private civil case as constituting a constitutional bar, of Chief Michael Kaase Aondoakaa, SAN, remains legally misconceived and pure Mischief. Chief Aondoakaa is entitled to present himself for nomination and election as Governor of Benue State
“In constitutional adjudication, courts do not legislate by implication. They apply the Constitution as written. Since the Constitution does not expressly disqualify Chief Aondoakaa on the basis of the Supreme Court’s earlier judgment, the presumption in law is that his constitutional right to contest elections remains intact”