DESPITE the unambiguous judgement of the Appeal court, the 30 Peoples Democratic Party-controlled local government councils of the state have defied the order to vacate the councils just as the Osun State Independent Electoral Commission has refused to conduct fresh election into the councils.
In defiance to the court order, the state government has overtly backed the decision of the council chairmen not to vacate the councils, saying that the status quo should remain because an appeal and a stay of execution order was filed by OSSIEC.
However, AC lawyer, Mr. Kolapo Alimi, described the decision not to vacate the councils as contemptuous, adding that the position of the state government and the council chairmen on the issue was not known to law.
He said, “The filing of an appeal against any judgment doesn‘t constitute stay of execution. The stay of execution is not yet argued and we have not been served. The court has not fixed a date for it. So, the state government is holding the court in contempt by supporting the occupation of the councils with a flimsy, warped and an illegal interpretation.
“As soon as we get the judgment, we shall commence contempt charges against the Attorney-General of the state, OSSIEC and the council chairmen.”
The state governor, Prince Olagunsoye Oyinlola; through his Chief Press Secretary, Mr. Lasisi Olagunju; the Attorney-General, Mr. Niyi Owolade; and the Speaker, Chief Adejare Bello, who are all lawyers, have indicated their backing for the action taken by the council chairmen.
Oyinlola said, “Nothing has changed in local government council administration in Osun until the Supreme Court decides the appeal by OSSIEC.”
Bello added, “With due respect to Justice Uwa, I beg to differ with the pronouncement of the court in respect of the issue,” stressing that the OSSIEC law had been in place during the 1999-2003 regime and the law was duly signed by Chief Bisi Akande, the then governor. Not a single line of the OSSIEC law was tampered with. Local government chairmen in Osun should continue with their statutory duties.”
In same vein, the Osun PDP, through its state Vice-Chairman, Mr. Ojo Williams, who is also a lawyer, toed the line of the governor along with the state Chairman, Association of Local Government of Nigeria, Alhaji Teslim Igbalaye, and Publicity Secretary of the Osun ALGON, Mr. Bamidele Salam. Igbalaye is the Chairman, Osogbo Local Government Council while Salam is the Egbedore Local Government Council chairman.
Condemning the standpoint of the government, spokesperson of Osun AC, Mr. Gbenga Fayemiwo, said the decision not to obey the ruling showed the state government in its true colours, stressing that OSSIEC lied when it alleged that it had filed an appeal because the judgment was not available several days after the ruling.
“With what ruling did OSSIEC file the appeal immediately after Justice Uwa delivered judgement?” Fayemiwo queried. In the same breath, the 11 AC lawmakers in the House of Assembly condemned the position of the Executive and the Legislature on the issue with Minority Leader, Mr. Timothy Owoeye, saying the state government was supporting crass illegality.
In reaching the judgment, the three-member Appeal court panel, comprising Justice Chidi Nwaoma Uwa (Chairman), Justice Istifanus Thomas and Justice Modupe Fasanmi, unanimously upheld the five grounds of appeal by the appellants.
An originating summons filed at the Osun State High Court by three political parties that included AC, the All Nigerian Peoples Party and the National Conscience Party on November 8, 2007 sued the OSSIEC and the Attorney-General and Commissioner for Justice. In the suit, the three parties challenged the constitutionality of the local government election that was scheduled to take place on December 15, 2007. Specifically, the parties sought the “declaration that by the combined provisions of paragraphs 11 and 12 of second schedule of the 1999 Constitution and Section 121 of the Electoral Act, the National Assembly has powers to make laws with respect to registration of voters and the procedure regulating elections to local government councils,” and also “a declaration that Section 10 of the Electoral Law of Osun State which stipulates 21 days of notice of the date of election into local government is null and void as it is inconsistent with the
Section 31 of the Electoral Act 2006 which provides 150 days notice of election date which forms part of the procedure for the conduct of election into the local government councils.”
Furthermore, the appellants also sought an order, “declaring that OSSIEC could not validly conduct election into the 30 local government councils in the state without giving 150 days mandatory notice of poll in accordance with Sections 31 and 121 of the Electoral Act 2006.
But OSSIEC, in defending the allegation that an ‘inadequate‘ 21 days notice was given by it to contesting political parties, told the Justice Fasasi Ogunsola‘s court that it advertised the notice of election in a publication by the Nigerian Tribune of November 5, 2007, and Ogunsola upheld the claim by OSSIEC that it had given enough notice.
In a judgment, which the Appeal court has described as inconsistent with the spirit of the Electoral Act 2006, Ogunsola held that Section 10 of the Osun State Electoral Law 2002 which provides for 21 days notice “is not inconsistent with Section 31 of Electoral Act, 2006 which provides 150 days before the day appointed for holding an election,” thus striking out the suit by the opposition parties a day to the controversial election.
Dissatisfied with the refusal of Ogunsola to grant the reliefs sought at the lower court, the appellants filed a Notice of Appeal on December 24, 2007 – with five grounds of appeal, which included whether or not the Osun CJ was right when he held that section 10 of the Osun State Electoral Law 2002 was not inconsistent with Section 31 of the Electoral Act 2006, among other reliefs.
Both the CJ and the Attorney-General, on the one hand, and the three contending political parties on the other, agreed that a notice should be given before the election but the duration of the notice was put to question. Counsel to the respondents, Mr. A. Abimbola, told the Appeal court that by giving 21 days notice, OSSIEC had “substantially” complied with the spirit of the Electoral Act, which stipulates 150 days notice. Faulting the reasoning of the defence counsel, however, the Appeal court asked a rhetorical question, “Can a notice of 21 days be said to be substantial compliance when put side by side with 150 days provided by the Electoral Act? No. The non-compliance or lack of adequate notice cannot be termed as undue technicality.”
The Appeal court subsequently described as “perverse,” the position of Ogunsola, which held that “Section 10 of the Osun State Law 2002 was not inconsistent with Section 31 of the Electoral Act 2006.” Justice Uwa ruled that, “If anything less than 150 days is acceptable, certainly, the object of the provision in Section 31 would have been defeated. The failure to comply fully has occasioned a miscarriage of justice as the number of days notice has far been abridged by the provisions of the Osun State Law.”
Dismissing the contention that the conduct of local government council election is exclusively the duty of the state government, and that the federal legislature – National Assembly – has no role to play in it, Uwa said, “By the combined provisions of items 11 and 12 of the Second Schedule to the 1999 Constitution and Section 121 of the Electoral Act, the National Assembly has powers to make laws with respect to registration of voters and the procedure regulating elections in local government council election.”
This assertion also put paid to the insinuation that state law subsists when it clashes with federal law on council election.
Setting aside the judgement by Ogunsola, the Appeal court described the appeal by the three parties as meritorious, nullifying the election and ordered fresh election into the councils – with strict compliance with the provision of the Electoral Act 2006.
As time ticks on, Uwa‘s judgment has hung on like an albatross, stalling governance at the council level even as the political air is pregnant with two questions: when will the Supreme Court give its judgment on the issue? When will the contempt proceeding begin?