Questions on indictment, impeachment and eligibility
Amid judicial controversy of all sorts including a pending court case questioning his eligibility due to indictment and subsequent impeachment in 2006, Ayo Fayose was on Thursday sworn in as Ekiti State governor for the second time. His inauguration has raised dust over the eligibility of an indicted and impeached elective official to contest another elective office in Nigeria.
However, the action against Fayose by a group of Ekiti political activists styled as the E-11 has spurred commentaries on the eligibility of impeached political office holders contesting or holding office. It is understandable for supporters of Governor Fayose to cry wolf given the fact that nearly all other high profile political office holders impeached in the country who sought office again were not impeded.
Fayose
Senator Iyiola Omisore was impeached as deputy governor but successfully proceeded to the Senate while before him, Governor Balarabe Musa was impeached as governor of the Old Kaduna State in the Second Republic but contested the presidential elections of 2003 and 2007.
The constitutional disqualification for anybody who aspires to be governor in Nigeria is spelt out in Section 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Section 182 (1) (h) of the Constitution provides that nobody is qualified to be governor if he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal and State Government which indictment has been accepted by the Federal or State Government, respectively.
Impeachment as contemplated by Section 182 (i) (h) of the Constitution is like an indictment under Criminal Law Procedure but impeachment does not in itself constitute a criminal trial.
Fayose was impeached and removed from office by the House of Assembly of Ekiti State on October 16, 2006 after a panel of inquiry, set up by the House of Assembly in accordance with section 188 of the Nigerian constitution, found him guilty of embezzlement. Fayose’s impeachment/removal from office has not been overturned by any court in Nigeria. Could this have stopped him from contesting in the last election?
Under the 2010 Electoral Act, political opponents or political parties are empowered to challenge the election of a winning candidate in an election if the:
“…person whose election is questioned was, at the time of the election, not qualified to contest the election” (138(1)(a))
But indicted and impeached public officers have jettisoned this constitutional provision and have gone ahead to continue to seek election in different capacities.
Attempts by opponents to stop Fayose from contesting the governorship election in Ekiti failed .
For one thing, the issue of ineligibility is a pre-election matter as ruled by the Supreme Court in the case Farouk Salim vs. Congress for Progressive Change (2013) LPELR-SC. 160/162.
The Supreme Court of Nigeria held that after an election has taken place, the right of an aspirant to file a case in the High Court or Federal High Court under Section 87 (10) of the Electoral Act becomes extinguished. Mary Peter Odili, J.S.C., illuminated the position of the law thus:
But since election has taken place already, the right vested on anybody to file a suit to challenge the eligibility of a candidate who supplies false information in an affidavit or document submitted to the Independent National Electoral Commission is extinguished. However, a pressure group, known as E-11, parading members like Chief Segun Oni, Senator Babafemi Ojudu among others before the election, had sued Fayose over his alleged ineligibility to contest th
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