Re: Kayode Fayemi and legal quagmire by SGA:

I have read opinion which sounds like an advice to Dr.  Kayode Fayemi by our own Senator Gbenga Aluko bothering on the report of panel of inquiry and the eventual indictment.  To me,  this advice is well received and appreciated by other members of JKF political family since I am well aware of SGA’s prominence within the family.

Now to the issues raised, one is not in doubt that before any decision can be taken, options must have been weighed this will lead me to the first issue raised which bothers on the proprietary or otherwise of JKF non appearance at the panel’s sittings, the effect and legal implications.

To start with, SGA should understand that the Kuta Panel though with the same premeditated outcome as Justice Silas Oyewole’s Panel can’t be equated as same and at such, the approach to be adopted  can’t be the same.

My takeaway on Kuta’s panel from SGA’s view is solely aimed at impeaching the then Senate President Chuba Okadigbo and to put his camp in disarray. However, in JKF’s case, the sinister motive is not only to stop him from contesting the forthcoming gubernatorial election in Ekiti State but also to cause him an unimaginable embarrassment during the panel sitting. As a matter of fact, when the panel thought in their imagination that JKF may likely appear in person as a result of his legal representation led as at then by Chf. R. O. Balogun, all manners of thugs were brought into the court premises with an OBM for live broadcast. I wonder what would have been the magnitude of such embarrassment if he had appeared at the panel.

Again, can we truly opine that JKF did not appear at the panel? That will not be a correct assertion in that both Fayemi and Dapo Kolawole were legally represented at the sitting whereby the panel and its members were made to understand the infraction  of the constitution of the FRN being committed then by the panel, the act of contempt of Court and the doctrine of lis pendis.

I guess SGA is unaware of the fact that the issues surrounding the resolution directing the Governor to set up the panel and the composition of the said panel were already before different courts of competent jurisdiction (FHC in Ado and HC of Ekiti State).  To now expect a man who had instituted those cases challenging the resolution and composition of the panel in court to appear in person before the panel is to one confine legality on the panel and also encourage him to join in the flagrant disobedience to the doctrine of lis pendis which in itself amounts to contempt of court hence the letter written by Chief Olujimi SAN who took over from Chf. R. O. Balogun as the lead counsel on the implications of the panel sitting and why Dr.  Fayemi will not appear.

It is therefore suffix to say that Fayemi in actual fact appeared before the panel in order to challenge the legality of her sittings.

Now what more, can JKF seek to quash the report of the panel despite not appearing in person? The simple answer is in the affirmative. It is on records that JKF through his legal representatives was before the panel to challenge her sitting on the premise of contempt of Court and the doctrine of lis pendis, this is enough ground to seek to quash the said report. There is no point belabouring this as same is already before a court of competent jurisdiction to adjudicate on.

It is also important at this juncture to bring to the fore the legal position prior to Kuta’s panel, period before 2007 and legal position from 2010 upward in regards to qualification and disqualification of a candidate seeking an elective position in Nigeria. It is worthy of note that before Atiku’s disqualification by INEC from contesting the 2007 Presidential election it was a norm then for INEC to unilaterally disqualified candidates whom in their view are not qualified to run in an election.

The Supreme Court put paid to this in the case of INEC Vs AC when it resented and void the disqualification of Atiku who was then the Presidential candidate of AC haven been indicted by an Administrative Panel set up by the then government of President Olusegun Obasanjo. It is important to note that prior to this landmark judgement, the provisions of the 1999 CFRN as amended listed indictment as one of the grounds for disqualification. However, in that judgement, the Supreme Court noted that indictment is not enough ground until such gets judicial approval and that INEC can not by herself disqualify anyone who has been sponsored by a political party. It is only a court of competent jurisdiction that can bar a Nigerian citizen from contesting in an election.

SGA may be correct on his assertion that he could only contest election in 2003 because he was able to quashed the indictment by Kuta’s panel. His assertion of able to contest the governorship election may also be correct but not in its entirety. Going by the landmark judgement of the Supreme Court in Atiku’s case, no candidate can be disqualified by INEC until such has been disqualify by a court of competent jurisdiction.

Moving away from the above, the present legal position is now different from what it was in 2007. As at today, indictment is no longer a ground for disqualification of any candidate standing an election in Nigeria. The National Assembly in their wisdom has altered the provisions of the 1999 CFRN as amended and deleted Section 182(1)(I) under Section 18 of the 1999 CFRN Alteration Act 2010 no. 5. This is one of the dynamsm of our law and reason we must keep abreast with the legal evolution. For the avoidance of doubt on this, the Supreme Court while delivering judgement in APC VS PETER AYODELE FAYOSE, ruled that indictment is not a ground for disqualification under the provisions of the 1999 CFRN as amended and went further to state when it was a ground, a court of competent jurisdiction must have considered it and get a judicial nod. The Supreme Court further quashed the impeachment of Fayose of 2006.

Now, agreeing without conceding that  indictment is a ground, one should know where such is being challenge in Court, no authority can stop such a candidate from contesting. I believe SGA should know better that both the composition and the eventual indictment are already in court. Let me reinstate, *indictment is not and can never be a ground for disqualification*. To now say until indictment is quash in court, a person can’t contest is to mislead the public.

I believe the distinguished Senator would be better enlightened with this and will understand that the said legal quagmire is nothing to worry about.

I must say I appreciate SGA for voicing out his own view on the issue even though same is not the true position of law as it is today.

Thank you.

Barrister Adeoye Aribasoye writes from Ado Ekiti.