On January 12, 2020, a faction in the lingering leadership contest in Awka Development Union Nigeria (ADUN) made a dramatic move by appointing a caretaker committee to run the affairs of the Union and also conduct fresh elections. There is uncertainty as to the legal basis for this move, and as to whether the opposing camp or indeed the state government will accept the validity or the framework of the new caretaker committee. Awka Times examines the history of this case and the complex legal issues involved.

By Chudi Okoye

The crisis of Awka Development Union Nigeria (ADUN) gained traction over the last week with new actions taken by a faction of the union, along with its allied fractions, ostensibly to move Awka town forward from the debilitating crisis. It will be recalled that on Sunday January 12, 2020, a general meeting of Awka town, the capital of Anambra State of Nigeria, was convened during which a 14-man caretaker committee was constituted to steer the affairs of ADUN, with a mandate to conduct new elections for the union. This dramatic intervention by the Awka general assembly (Izu Awka) significantly changes the game and could deepen the political fray in Awka. The move pits the two contending sides in the Awka crisis even more deeply into entrenched corners, bringing deep constitutional issues to the fore.

The side that set up the caretaker committee through Izu Awka invoked a ‘doctrine of necessity’ and the supposedly unwritten conventions of Awka governance to justify its action against potential sanction by the state government. The opposing side insists that the state government retains the exclusive authority to create such a committee, and even seems to believe that the state has powers to prolong by administrative fiat the tenure of a town union’s executive council beyond the remit of the community’s constitution.

The factional contention has deepened Awka political crisis.

ADUN has faced a crisis of contested leadership since 2015 when the tenure of the as-at-then incumbent executive council expired and the president-general, Engr. Tony Okechukwu, initiated plans to conduct a new election in which he had hoped to contest for a second term. A purported 2008 ADUN constitution thought to be in effect at the time prevented a second term for the executives. (As that constitution put it at Articles 10.1-2: “The President-General and all the officers of the Union as well as the members of the Executive Council shall hold office for one three-year term… There shall be no room for re-election into the same position an officer has served.”) However, a pre-existing 2004 constitution and another purported constitution created in 2014 by the Okechukwu-led ADUN executive both provided for a second term. (As the 2004 Constitution put it at Article X (1): “The President-General and all the officers of the Union as well as members of the Executive Council shall hold office for three years, subject to re-election for another three years.”) Contention thus arose over the validity of the various constitutional documents.

Predictably, the matter resulted in litigation, with action initiated at the Awka High Court by the ADUN faction opposed to Engr. Okechukwu. A ruling by the court on July 27, 2016 granted all the reliefs (10 in all) sought by the plaintiffs.

Among the reliefs sought by the plaintiffs and granted by the high court were: (1) a declaration that the 2008 ADUN constitution was the subsisting constitution of the union; (2) a declaration that Engr. Okechukwu’s tenure as PG had expired and that he was not eligible to re-contest due to constitutional tenure limit; and (3) a declaration that the next ADUN PG should come from the Ezi quarter of Awka, which as it happened was not Okechukwu’s quarter of the town.

The high court declared that Okechukwu’s tenure had ended on March 17, 2015, and granted a plea asking that the Anambra State government should withdraw its recognition of Okechukwu. It also ordered that the Anambra State government should set up a 7-man caretaker committee to conduct the affairs of the union for three months during which time the committee should conduct an election for the union.

In his defense at the Awka High Court hearing, Engr. Okechukwu had argued that the high court would be wrong to uphold the 2008 ADUN constitution since this document was not registered with the CAC (Nigeria’s Corporate Affairs Commission), noting that only the 2004 constitution was so registered. He also argued that the high court did not have jurisdiction to hear the originating case because the matter concerned a body registered with the CAC, and therefore such jurisdiction lay with the federal high court.

The Awka High Court ruling, rendered by Hon. Justice D. C. Maduchesi, rejected the defense arguments and ruled comprehensively for the plaintiffs.

Post-Judgement Drama

Drama ensued in the wake of the high court judgement. A 7-man caretaker committee purportedly set up earlier on March 27, 2015 under the chairmanship of Chief Chike Obuekwe to run the affairs of ADUN upon the presumed expiry of Tony Okechukwu’s tenure but which did not commence work due to extant litigation, was resuscitated at another Izu Awka held on August 14, 2016 in the wake of the July 27, 2016 Awka High Court judgement. The carry-over chairman of the committee, Chief Obuekwe, would resign his position in September 2016 but plans were nonetheless set in motion for the caretaker committee to conduct new ADUN elections on October 15, 2016.

However, ahead of these elections, on October 5, 2016, the Anambra State Government’s Ministry of Local Government and Chieftaincy Matters issued a strongly-worded letter to the chairman of the caretaker committee pointing out that “the High Court [had issued] an order directing the State Government to constitute a Caretaker Committee to run the affairs of the Union in the interim as provided by law.” The letter was signed by Barr. Ikechukwu Onyeabo, at the time a Special Adviser to the Governor on Chieftaincy and Town Union Matters. The letter decried the action of the faction which it said “rather than wait for government to implement this order of court… purported to constitute a Caretaker Committee for Awka Development Union Nigeria in flagrant disobedience of the order of court and the law regulating town unions in Anambra State.” The letter said that the caretaker committee set up by the faction was “illegal” and was thereby “disbanded”. It also said that the election proposed by the committee was “unlawful”, and it urged all sides “to respect the rule of law and await any further government action in this matter.” Finally, the letter directed what it called “the present executive committee of [ADUN] led by Chief Tony Okechukwu [to] continue to run the affairs of the Union…”

Notwithstanding the injunction from the government, the faction proceeded with its plans and did conduct elections which brought in a new executive council led by Dr. Amobi Nwokafor as a new president-general of ADUN. In part, the thinking of the faction, according to the lead attorney for the plaintiffs, Barr. Ralph Nzekwe, was that the letter from the government was “of no moment” because at the time Engr. Tony Okechukwu’s tenure had effectively expired and there was no basis in law for tenure elongation as was purported in the government’s letter.

For his part, shortly after the 2016 Awka High Court ruling Engr. Okechukwu had filed an appeal at the appellate court in Enugu seeking a determination on his defensive arguments which had been rejected by the Awka High Court. Okechukwu’s appeal concerned the jurisdiction of the Awka High Court to hear the originating case, and the validity of the 2008 constitution upheld by the lower court.

▲ Engr. Tony Okechukwu, government-recognized ADUN President-General

▲ Dr. Amobi Nwokafor who emerged as contending ADUN President-General

In its ruling delivered nearly three years later in July 2019, the appeal court rejected Engr. Okechukwu’s argument questioning the jurisdiction of the Awka High Court; it ruled that the lower court did have jurisdiction to entertain the originating case. However, on the question of which ADUN constitution was valid, the appeal court ruled that the 2008 and 2014 constitutions were “unknown to law and cannot by any stretch of imagination be accorded any probative value.” The appeal court affirmed that the 2004 Constitution was the valid and subsisting constitution of ADUN.

In a rather controversial extension of its ruling the appeal court, presided by Justice Ignatius Igwe Agube, also argued: “Assuming the Appellant [Engr. Tony Okechukwu] had acquiesced and/or conceded to the use of the purported 2008 Constitution (as amended) in the conduct of the Election in 2012 [the election that ushered in Okechukwu’s first tenure], it does not derogate from the established fact that in the eyes of the law, the said Election was conducted in compliance with the 2004 registered constitution of ADUN…” This was a significant conclusion by the appellate court.

Different Interpretations

After this ruling, the two camps in the ADUN tussle both declared victory! Each camp called an Awka general meeting to put its own spin on the appellate ruling handed down from the hills of Enugu. On the one hand, both factions professed their acceptance of the appeal court ruling. However, their acceptance of the ruling appeared to be predicated on differing interpretations. The Okechukwu coalition accepted the Enugu judgement on the presumption that Okechukwu had “won” the case. It claimed that Engr. Tony Okechukwu’s election was never based on the 2008 constitution but instead, as it said the appeal court had affirmed, on the CAC-registered 2004 ADUN constitution. Based on this, Tony Okechukwu claimed the right to conduct a new ADUN election.

The plaintiffs in the original high court case (respondents in the appeal), for their part, proclaimed that the appeal court ruling implied that both contending PGs had been elected on the basis of the 2008 constitution which was invalidated by the appeal court. As such, the camp argued, all PG claims including Okechukwu’s were nullified. This camp further claimed that the ruling meant that the only entity legally qualified to conduct new elections for ADUN was the Board of Trustees headed by Engr. Nzekwe Ibe who had been ADUN president from 2001 to 2007, several cycles before the current imbroglio. It resolved therefore to call upon Engr. Ibe at a future date to conduct new ADUN elections.

With these differing interpretations of the appeal court ruling, the crisis of ADUN simmered throughout the summer of 2019, and before long, with a hint of harmattan hanging in the air, the faction claiming that Enugu had nullified all PG claims headed back to court for an interpretation of the Enugu ruling. The lead attorney in the case, Barr. Ralph Nzekwe, told Awka Times that the judgement of the Enugu court “is very clear; it is as clear as air.” The appeal court, he said, was simply “called upon to pronounce on jurisdiction and constitution. The appeal court was not called upon to say whether the tenure of Engr. Okechukwu is still running.” Continuing, he wondered how Okechukwu’s tenure could be said to still subsist when the very constitution that Okechukwu claims to have underpinned his election in 2012 provides for a three-year term which had already elapsed in 2015. “So where does he derive the powers to continue parading himself [as ADUN PG]?,” Barr. Nzekwe asked. “That is my question!” It seems this was the reason his faction returned to the court, to secure a formal and final interpretation of the Enugu ruling.

Political Uncertainty and Peace Initiative

Amidst these clashing claims and renewed litigation, Awka political scene became inevitably inflamed yet again. The situation was further aggravated by the spiral of events relating to the kingship crisis in Awka. The town has long faced an interrelated set of crises involving the kingship institution and the Ozo Awka society. As the year 2019 wound to a close and traditional end-of-year events were lined up, it seemed at a point as if the factional altercations would come to a head. A cross-scheduling of competing kingship events on the same day (it is unclear if this was planned or fortuitous) had prompted the Anambra State government to issue a strongly-worded statement warning against any breach of public peace. There was heavy presence of security forces in Awka on the day the competing events were held.

The swirling crises led, inexorably, to growing calls for renewed peace-making effort. An informal peace mediation group which had been working on the Awka crisis, the True Awka People (TAP) – temporarily rattled by the renewed ructions and litigation – resumed its efforts to re-engage the warring parties in meaningful peace talk. The chairman of TAP’s Political Action Committee (TAP-PAC), Engr. Ifeanyichukwu Uyanne, told Awka Times that the group is intensifying peace efforts in order to avoid further deterioration which could only hurt Awka town. Engr. Uyanne said that TAP-PAC members “are intensifying their efforts to ensure that peace is achieved. In light of the emerging developments,” he said, “we are planning on a strategy to [arrest the situation]. Certainly, we’ll [shortly] come up with an [effective] peace program.”

▲ Engr. Ifeanyichukwu Uyanne, Chairman TAP-PAC

Engr. Uyanne recalled that “TAP-PAC, on behalf of TAP general assembly, had earlier in 2019 hosted two peace conferences [involving the two opposing camps]. The peace conference resolutions [held] that no group should [carry out a factional] ADUN election, and that [efforts should be made by] the two groups to ensure that a unified ADUN election is organized… using the 2004 ADUN constitution.” He said that TAP-PAC is “delighted that the two parallel ADUN groups have continued to honor these resolutions even till date.”

Engr. Uyanne intimated that the mediation group is working on strategies and modalities for a unified ADUN election. He thus appealed to all concerned Awka patriots, especially those with strategic influence, to urge the ADUN factions to restrain from conducting any partisan election which would only exacerbate the situation, but rather to wait for joint “modalities [that would] bring all parties together to conduct a single unified ADUN election using the 2004 ADUN constitution.”

Search For Solution Amid Legal Confusion

The search for peace may be complicated by legal uncertainties surrounding the moves initiated at the January 12 Awka general meeting. The faction that convened the meeting, which is allied to the plaintiffs in the original ADUN case at the Awka High Court, appeared to be following up on its earlier-stated plan to set up a caretaker committee to conduct new ADUN elections. This January 12 move had come ahead of the determination of a subsisting court case filed by this same faction seeking an interpretation of the Enugu ruling. It is unclear why the faction is moving ahead of its own court case. Although this has been interpreted as an aggressive move for first-strike advantage, a spokesman for the new caretaker committee assures however that the committee is ready to participate in any meaningful effort to find peace.

In an internal statement issued to TAP-PAC, the general secretary of the newly constituted ADUN caretaker committee, Doctor Obiora Okechukwu, said that “the caretaker committee is open to any reasonable suggestion to create peace in our land.” Doctor Okechukwu assured TAP-PAC of his “highest regard in behalf of the ADUN caretaker committee,” saying that the committee will welcome all efforts to find peace “with open hands and minds” because “Awka interests supersedes any sectional interest.” He however insisted that the new caretaker committee “will not shirk [its] duty as spelt out at Izu Awka.”

But there are potential legal hazards facing the new caretaker committee. The issue here relates to the legal provenance of the caretaker committee. The committee has been set up ostensibly under the auspices of Izu Awka, an assembly nowhere mentioned in the 2004 ADUN Constitution, let alone as a constitutive authority for ADUN. It is not entirely clear if the assembly has the power to set up such a committee, especially since the meeting did not declare any specific legal instrument empowering it to constitute such a legal entity. Awka Times reached out to Dr. Aneze Chinwuba, erstwhile secretary of Ozo Awka society and primary instigator of the Izu Awka caretaker committee initiative, to ascertain the legal basis for the move. Dr. Chinwuba argued that Izu Awka is the supreme decision-making body of Awka community which wields traditional authority over all Awka institutions including ADUN. In constituting the caretaker committee, he said, Izu Awka was exercising its traditional authority to promote the political welfare of Awka society.

▲ Dr. Aneze Chinwuba moderating Izu Awka on Jan 12, 2020

A similar point was pressed by Barr. Ralph Nzekwe, lead attorney for the anti-Okechukwu camp, in a chat with Awka Times. Asked to explain if the 2004 ADUN Constitution imbues Izu Awka with constitutive or supervening authority over ADUN, Barr. Nzekwe said “whether the constitution provides for such or not is immaterial, in the sense that this constitution is the constitution of ADUN. It is not the constitution of Izu Awka. ADUN is a creation of Izu Awka… ADUN derives its powers from Izu Awka.” Reminded that this is not explicitly captured in the law governing ADUN, Barrister Nzekwe retorted: “Which law? Is that not the law of ADUN? Is it the law of Izu Awka? Many things we do at Izu Awka are not governed by [written] law. It is conventional law. Invariably, you see that there is a mixture of written and unwritten constitution here. Izu Awka has no written constitution.” He agreed however that this intermixture of written and unwritten laws creates a nebulous situation that exacerbates the legal and political uncertainties facing Awka. He further agreed that a future process that formalizes Awka conventions into a coherent set of written laws would help to eliminate the ambiguity.

In a further effort to clear up the legal question, Awka Times also contacted a prominent Awka lawyer intimately connected with the case and asked if Izu Awka, a non-statutory body, had the power to constitute an ADUN caretaker committee. “Legally no,” the barrister replied. In fact, he said, “ADUN Constitution [makes] no provision for [a] caretaker [committee at all].” He suggested however that “Izu Awka [being] the highest decision making body for all Awka people including members of ADUN [could, out of] necessity but not constitutionally, take it upon itself to set up a caretaker committee for ADUN.”

Based on the explanation helpfully (or hopefully) advanced by the learned lawyer, it would seem that the dramatic and unilateral move by Izu Awka on January 12 to set up a caretaker committee for ADUN was based not on some explicit legal principles but on a ‘doctrine of necessity’ arguably invoked out of a patriotic zeal to move Awka forward. In other words this was probably a well-meaning, if overtly political, intervention by the faction that convened the Izu Awka.

Still, it is unclear how the opposing pro-Okechukwu faction perceives the January 12 intervention, especially with a matter pending in court to interpret the Enugu ruling (TAP-PAC is putting out feelers to this camp).

Nor is it clear how the Anambra State government has received the initiative, as it appears to entail a usurpation of the government’s legal powers to constitute such a committee. In Anambra State, there is a law that governs the affairs of town unions. This law started life as an edict and has been incorporated into the Laws of Anambra State as the Fund for Rural Development Law. Section 26(3) of this law imbues the Commissioner for Local Government and Chieftaincy Affairs with powers to dissolve an extant town union executive and to constitute a caretaker committee in its place, specifically where there is dispute. It may be for the reason that such power inheres on the state government that the Awka High Court ruling of 2016, whilst finding in favor of the plaintiffs, nevertheless ordered that the state government set up a caretaker committee to conduct the affairs of ADUN.

The lawyer contacted by Awka Times confirmed that this law does assign the power to appoint caretaker committees to the state government. He argued however that the arrogation to the state government obtains only where a town union’s constitution is not registered with the Corporate Affairs Commission (CAC). The barrister noted that “all incorporated unions under the Companies and Allied Matters Act (CAMA), a federal law, are regulated by that law.” This federal law, he said, is superior to state edict or law. He stated that for unincorporated town unions the state “government can dissolve and appoint [their] caretaker committees, [but] in the case of ADUN, an incorporated union under CAMA, government has no powers to dissolve or appoint its caretaker committee.”

This argument may be valid but it seems to fly in the face of the fact that the state government had in the past dissolved an ADUN executive council and imposed a caretaker committee. It also seems to be at discord with the material facts surrounding this matter. It may be recalled that one of the points argued by Engr. Okechukwu at appeal was that the Awka High Court did not have jurisdiction to hear the originating case because the matter concerned a body registered with CAC, and that such jurisdiction lay with the federal high court. However the appellate court ruled against this argument, confirming that the Awka High Court did have jurisdiction, even though it ended up overturning the findings of the lower court which favored the plaintiffs. This seems to upset the argument that the state government cannot set up a caretaker committee for a CAC-registered town union since this was a CAMA-related issue regulated only by federal law.

Awka Times asked the learned lawyer if, by upholding the jurisdiction of the Awka High Court in this case, the appeal court did not therefore uphold the right of the state government to set up the committee. It may be recalled that one of the reliefs sought by the plaintiffs themselves in the originating summons at the Awka High Court was an order for the Anambra state government to set up a caretaker committee within 90 days of the ruling. This relief, as we have seen, was granted. So the question arises: Why would the plaintiffs themselves seek such a relief if the state government did not have powers to set up a caretaker committee for ADUN, and why would the court grant it?

We put these questions to the lawyer helping us through the legal complexities of this case.

The lawyer, who preferred to address Awka Times inquiry anonymously, responded by saying that “the issue of dissolution of a body corporate under CAMA was never contested in any of the two courts.” He insisted however that “any contest involving the application of federal law and state law is always tilted in favor of federal law to the extent of any inconsistencies.”

This answer may be arguable but it seems to diverge from the ruling of the appeal court, and indeed from the state government’s assertive construction of its powers in these matters, as we have seen.

With the assertive position previously taken by the Anambra State government regarding its constitutive power, the question then arises whether a showdown with the state government is looming in regard to the ADUN affair. Will the government clamp down on Izu Awka’s caretaker committee, or will it simply fail to recognize the committee’s electoral process and any ADUN officers that emerge from the process?

On the other hand, how do the initiators of the caretaker committee, who say that they will not stand down no matter what, feel about potential government intervention? Do they worry that government might wield the big stick and kick in to stop their schtick?

According to Dr. Aneze Chinwuba, the group is undaunted and unafraid. “They can’t stop it,” he said. “The only thing government can do is to not recognize the persons elected [as ADUN executives], just like what they did to Dr. Amobi Nwokafor. But we all lived. We are not expecting government recognition because they never recognized the Eze Uzu III that we crowned, so how will they recognize ADUN PG? But we are only doing what is right. They can’t stop Awka!”

It is clear that battle lines are drawn. Awka needs to get its act together, perhaps with the intervention of TAP-PAC and other mediation groups, or face further internal rupture and possible clashes with the government, or – equally important – continued marginalization, despite its capital status, in the affairs of Anambra State.

Awka Times reporter, Stella Nzekwe, contributed additional reporting to this story.