Thursday Column with Mohammed Adamu
By Mohammed Adamu
Obasanjo must’ve known that handing over to anyone of South-South’s then most popular successor-contenders of Peter Odili and Donald Duke after he, from the South-West, had just rounded off a two term tenure of 8 years, would have sung the funeral of the Party’s ‘gentleman’s agreement’ on power sharing. The North he must’ve feared would then have had, on a platter of gold, an excuse in the future not to honor any such agreement to share power away from the vagaries of one-man-one-vote. Nonetheless even Obasanjo’s last minute volte-face and his personal choice of a terminally ill YarAdua many had said was still a crooked masterstroke. Although it did save the Party’s infant zoning consensus, it, nonetheless also deliberately prepared the grounds for a virtual still-born Northern presidency with Yar’Adua dying halfway into his first term and a South-Southern Jonathan becoming the President barely two years after Obasanjo’s 8.
And in fact, it was with a bit of ironic coincidence that when the PDP had convene a constitution-amendment conference to now enshrine the zoning principle in its party Constitution, Jonathan, then as Vice President to the late Yar’Adua, would be the one to sign the document on behalf of his Principal. As a product of an unwritten zoning consensus he was now one of the architects of an encoded agreement. And so now, what had begun as an intra-party consensual agreement rejected by the Rimis for the reason that it was both illegal and undemocratic, had now made it into Section 7 (2) (c) of the Constitution of the PDP as a law –rather than as the norm that it previously was, enforceable by the will of a simple or special majority.
First the preamble to the PDP Constitution proclaims the lofty ideal of what it describes as creating “sociopolitical conditions conducive to national peace and unity by ensuring fair and equitable distribution of resources and opportunities, to conform with the principles of power shift and power sharing by rotating key political offices among the diverse peoples of our country and evolving powers equitably between the Federal, state and local governments in the spirit of federalism”. Then the main Section 7 (2) (c) proceeds to say, inter alia, that “in pursuance of the principles of equity, justice and fairness, the party shall adhere to the policy of rotation and zoning of party and public elective offices and it shall be enforced by the appropriate executive committee at all levels”
Technically therefore there was a contract, implied both in ‘fact’ and in ‘law’, between the PDP as a political party and its members; namely, the promise to equitably rotate political power between the North and the South and by implication also among their zones thereof. As the maxim goes: ‘Contractus legem ex conventione accipiunt’; meaning that ‘contracts receive legal validity from the agreement of parties’. Technically-speaking therefore merely being a member of the PDP would now expressly imply a forfeiture or subordination of one’s constitutional right of contest, to the new party ideology. Because both party and members are now mutually bound by this agreement.
Truth is, there are quite delicate often un-navigable hyacinth of legal matters in the way of retrieving a legal right which a person has voluntarily forfeited either directly by himself or even in representative capacity by a body or association to which he willfully belongs and whose lawful ways he voluntarily subscribes to. At the point this zoning agreement was enshrined in the PDP Constitution, technically the rights of contest of members were automatically altered and new rights to be enjoyed by all at different times and to be forborne by all at other times, created.
And so it may not be altogether true that the constitutionally-guaranteed right of contest of a member of a political party is always superior to that party’s express constitutional agreement or even its consensual ‘gentleman’s agreement’ willfully to forfeit those rights in favor of a mutually beneficial agreement. As the legal maxim asserts: ‘convention vincit legem’ –meaning that ‘the express agreement of the parties overrides the law’. Technically the law takes the back seat where parties mutually contract willfully and voluntarily to forfeit a right guaranteed to them even by the Constitution. In fact in law the maxim is that even a ‘faulty’ contractual agreement technically is supposed to bind its authors –‘culpa tenet suos auctores’. And it was the reason many lawyers disagreed with the then Chief Judge of the FCT High Court, Justice Lawal Gumi who, on 1st Dec. 2010, had ruled (when his court was approached by some pro-zoning luminaries), that zoning, although it was legally binding, it was non-justiciable –or to put it in layman’s term legally unenforceable.
The question being: ‘how can a right be legally binding and also legally unenforceable all at the same time?’ Although even as he ruled that zoning was ‘non-justiciable’, Justice Gumi had nonetheless affirmed that the principle was not only legally binding on the PDP (having enshrined it in its Constitution), it was he said also “in the interest of equity, justice and fairness”, because it reflected “the adverse nature of the Nigerian society”.
It would thereafter take Justice Ishaq Bello, on the 10th of Jan, 2011, (two days to the PDP Primaries), in another judgment, to affirm the justiciability of zoning when he ruled that “even though the courts would not (normally) interfere in the internal affairs of a party” they would do so, he said, whenever a political party fails to comply with any of the following sources of electoral law: the Constitution of the party, or the Constitution of the country or the Electoral law. Justice Bello said that the provisions of Article 7(2) of the PDP Constitution on zoning was binding on and enforceable against the PDP even as he too also affirmed that the principle of power-sharing admittedly promotes ‘equity, fair play and justice’.
Thus the crux of Justice Bello’s judgment was his confirmation of the ‘authority’ of the courts to enforce the rights of members of a political party, where such rights, enshrined in their Constitution, are abused, violated or abridged. And although he had affirmed that the PDP was bound to observe its own rules and its Constitution -of which the principle of zoning is a part- Justice Bello had still dismissed the case before him for want of “sufficient reasonable cause of action” -since the PDP, as at then, had neither nominated nor submitted Jonathan’s name to INEC yet. Many had argued, and rightly so, that Jonathan’s constitutional right of contest, at least under PDP, had been circumscribed or subsumed by the provisions of Article 7(2) of the PDP Constitution on zoning, and he ineligible for the contest of the 2011 presidential election.
The PDP would’ve had to expunge that Section before Jonathan could contest, because again, the maxim is that “an obligation is dissolved only by the same bond by which it is contracted” (Eodem ligamine quo ligatum est dissolvitur). Yet it could not have been expunged before the North would’ve had the opportunity to benefit.
To be continued