Democracy is indeed beautiful. Beautiful is edifying because everyone has a say but the right thing is always done.

But Constitutional democracy is even more beautiful given the fundamentals that make it work in such a vibrant fashion that Justice, fairness and equity are not only done but seen to have been done.

Additionally, the constitution of Nigeria which makes us a Constitutional democracy spell out in lucid format how and what each tiers of government should do as its very essence. Beginning from section 4, 5 and 6, the Nigerian Constitution clearly tells us the mandates of each of the three arms of government viz: the legislature, the executive and the judiciary.

The Judiciary is clothed with the judicial powers of the federation in Section 6 thus: “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”

The functionality and smooth workings of the nation’s judiciary are also systematically organized so every citizen of Nigeria could enjoy the full benefits of the due process of the law, including the vital element which is the right of appeal in the way that if a citizen feels aggrieved about the decision of each of the member of the collective court System, such a citizen is constitutionally protected to exhaust what is termed legally as the right of appeal through the Court of Appeal up until the Supreme Court of Nigeria.

We are actually discussing the matter involving the Governor of Ebonyi State, Mr. Dave Umahi, who together with his Deputy and about 16 members of the Ebonyi State legislature, are contesting a judgment of the Federal High Court, Abuja Division which sacked them from their political positions for cross carpeting from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC). What the Governor has set out to do is to test the viability of the constitutional concept of due process.

We then asked, what Is Due Process, in which case, an expert, Michael Boyle, says: Due process is a requirement that legal matters be resolved according to established rules and principles, and that individuals be treated fairly. Due process applies to both civil and criminal matters.

In countries with developed legal systems, individuals expect that the rights enshrined in their constitutions will be applied to them fairly. This expectation of due process outlines the relationship individuals expect to have with their local, state, and federal governments—specifically, that the rights of the individual will not be violated.

Key takeaways of the concept of due process: Due process requires that legal matters be resolved according to established rules and principles and that individuals be treated fairly.

In the U.S. due process is outlined in both the Fifth and Fourteenth Amendments. The Sixth Amendment adds due process protections to criminal defendants. One example of due process is the use of eminent domain.

Understanding Due Process

The origin of due process is often traced back to the Magna Carta, a 13th-century document that outlined the relationship between the English monarchy, the Church, and feudal barons. The document referred to as a charter (carta means charter in medieval Latin), sought to address many economic and political grievances that barons had with the monarchy.

In one of its clauses, the king promised: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

The king was thus prevented from arbitrarily changing or ignoring laws, with the Magna Carta establishing the rule of law that the monarchy must follow.

Due process continued to be a part of British law for centuries after the signing of the Magna Carta, but the relationship between parliament and the courts limited its application in practice. The courts did not have the power of judicial review, which would have allowed them to determine whether government actions violated the rule of law, and thus could not always enforce due process. Judges could not be as assertive in defending due process in the face of parliamentary action, with the opposite holding true in the United States.

Now let’s read a little literature review of the concept of the right to appeal then we situate it within the context of the constitutionally protected right of Governor Dave Umahi to exhaust his right of appeal.

The experts say that the most obvious way in which individual judges are accountable is through the right of the party to the proceedings to appeal any judicial decision, in some cases, through several higher courts. In this way the losing party is able to have the decision reviewed by another independent judge or judges. The court determining an appeal will correct errors by the trial judge and the right of appeal ensures that, as far as possible, courts arrive at correct decisions. The decisions of appellate courts are fully reasoned, widely available and they do not always pull their punches.

Only a small number of the millions of cases commenced each year are subject to a successful appeal. For example, 1,553,983 civil (non-family) cases started in 2011, whilst just 1,269 appeals were filed in the Court of Appeal Civil Division in the same period. It is vital the right exists as it ensures that if a judge does make an error of law or fact the means exist to correct it.

This right of appeal is what Governor of Ebonyi State, David Umahi, and his Deputy, Dr. Eric Igwe, have approached the Abuja Division of the Court of Appeal to set aside the judgement that sacked them from their respective offices over defection from the Peoples Democratic Party (PDP) to the ruling All Progressives Congress (APC).

This came as the Nigerian Bar Association, NBA, yesterday lashed out at the governor over his outburst against the judge that gave the judgment, Justice Inyang Ekwo, describing it as “executive rascality.”

It would be recalled that Umahi had, in the aftermath of the judgement on Tuesday, accused the judge of doing a “hatchet job” in his ruling.

This is even as Ebonyi State government, yesterday, described the verdict against the governor and his deputy as an attempt to heat up the polity in the state.

Governor Umahi and his deputy, through their team of lawyers, led by a Senior Advocate of Nigeria, SAN, Chukwuma Ume, in their eight grounds of appeal, maintained that Justice Inyang Ekwo of the Federal High Court in Abuja, erred in law in his judgement and caused a grave miscarriage of justice against them.

They argued that the trial court, in ordering them to vacate their offices, based on the suit, marked FHC/ABJ/CS/920/2021, attempted to overrule a subsisting decision of the Supreme Court in AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799 (SC).

They contended that the apex court had in its decision, held that no constitutional provision prohibited a sitting president or vice president, and invariably, governor or deputy governor, from defecting to another political party.

They maintained that the trial high court judge erred, when he held thus: “I have not seen any authority which propounds that where a governor or deputy governor defects his political party on which platform he was elected into office, he cannot be sued by that political party to reclaim its mandate… Section 308 of the 1999 Constitution did not envisage such a situation.”

They argued that the trial court ought to have dismissed the case of Peoples Democratic Party, PDP, in view of the clear provision of Section 308 of the 1999 Constitution (as amended).

“The provisions of Section 308 are specific, notwithstanding anything to the contrary in this constitution, but subject to subsection (2) of this section, no civil or criminal proceedings shall be instituted or continued against 3rd and 4th Appellants during their mandate in office as Governor and Deputy Governor respectively.

“There is no provision of the 1999 Constitution (as amended) that provides for the removal of 3rd and 4th appellants as sitting governor and deputy governor respectively of Ebonyi State for reason of defection.”

It would be recalled that the Governor reacted angrily to the court ruling. Reacting to the governor’s outburst against the trial judge, the Nigerian Bar Association (NBA) called on him to immediately render an apology for his attack on Justice Inyang Ekwo, describing the outburst as executive rascality.

NBA President, Mr. Olumide Akpata, while reacting in a statement, said: “The NBA has noted with utter dismay, the unfortunate and totally unacceptable reaction of Dave Umahi to the judgement of the Federal High Court, Abuja, delivered on March 8, 2022, by Justice Inyang Ekwo, which, inter-alia, ordered him and Mr. Eric Igwe to vacate the offices of governor and deputy governor, respectively, of Ebonyi State on grounds of their defection from Peoples Democratic Party, PDP, to the All Progressives Congress, APC.

However, some Senior Advocates of Nigeria (SANs) were divided of over Umahi’s sack by high court.

While some of them hailed the decision of Justice Inyang Ekwo, others maintained that the high court lacked the powers to order the governor and his deputy to vacate their respective offices.

In his reaction, Olisa Agbakoba, SAN, said: “Based on the Supreme Court decision in Amaechi vs Celestine Omehia and PDP, the candidate who wins political office holds the office in trust for the party.

“The party is the only legally permissible entity under the constitution and the Electoral Act, who canvasses for votes. As a result, the political office to which a candidate runs, say for president or Senate etc, is to the benefit of the party exclusively.”

Prof. Epiphany Azinge, SAN, in his reaction, said: “There are many dimensions to the issue. First is, can an action be brought against a sitting governor regardless of the provision of Section 308 of the Constitution on immunity?

“The court answered in the affirmative and I respectfully agree. Second is, whether earlier decisions of the Supreme Court on the subject of defections as it affected the legislature can by parity of reasoning be stretched to the executive?

“Again, the court answered in the affirmative. I am not sufficiently persuaded. First is that the constitution is silent in that regard. But can the judiciary not engage in judicial lawmaking to fill the gap when there is obvious lacunae?”

Adding his voice to the debate, Dayo Akinlaja, SAN, said: “The reality on ground is that the court that gave this judgment is a court of first instance.

“There is as such a window of opportunity for an aggrieved party to appeal against the judgement. Having regards to the all important nature of the matter, it is certain that there will be an appeal.

“My own attitude is that the Court of Appeal should be allowed to decide the matter in a way and manner considered proper by that appellate court.”

While disagreeing with the judgement, Jubrin Okutepa, SAN, said: “This judgment, on the superficial level, seems very attractive and well intentioned to instill political sanity in our otherwise reckless political terrains.

“But beyond this and also scoring political debates, is there jurisdiction in the Federal High Court to make the orders it made, in the light of, and upon a dispassionate construction and interpretation of Nigerian Constitution 1999 (as amended)? I do not think so.

“There is no power and jurisdiction in the Federal High Court to determine and declare that by constitutional misconduct of defecting to another political party other that the party upon which the governor and the deputy governor were elected, their seats had become vacant and to order the conduct of election to their offices.”

Similarly, Chief Mike Ozekhome, SAN, said: “I am of the firm belief that the judgement, shredded of all legal and factual details, cannot stand the acid test of constitutionalism, nor pass the furnace of appellate courts scrutiny. This is because the tenure of office of a governor and his deputy are constitutional matters.

“Perhaps, the jurist’s learned attention was not drawn to appellate decisions on this type of matter, which under the doctrine of stare decisis and judicial precedent, he ought to have followed meticulously.

“I humbly submit that a governor already sworn in cannot be removed by the Federal High Court through an originating summons. It will surely be set aside on appeal. Mark my words.”

A universal fact which is not in contention is the constitutionally protected right of appeal of the Ebonyi state governor and his deputy.

•Emmanuel Onwubiko is Head of the Human Rights Writers Association of Nigeria (HURIWA) and was Federal Commissioner of the National Human Rights Commission of Nigeria.

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