2nd series of Aloy Ejimakor's interview to members of the Nigerian media in Feb 2009

No Comments » March 2nd, 2009 posted by // Categories: General Articles



 

As a lawyer, what are your views on the recent call by the NBA, following the Ekiti case, for removal of Professor Maurice Iwu of INEC?

 

I don’t think it is appropriate and politically-correct for a hardcore, federally-chartered professional association to involve itself in passing the buck over the much overplayed, over-personalized shortcomings of the 2007 election. If such were the case, the Nigerian Medical Association, the Nigerian Society of Engineers, Pharmaceutical Society of Nigeria and all other professional associations might as well jettison all decorum and get suckered in what has become a matter of vicious power play by duplicitous politicians, scheming to control and corrupt the electoral regime for the principal purpose of supplanting President Yar’Adua in 2011. Some desperate, but powerful politicians appear to have convinced themselves that Maurice Iwu is the sole guarantor of an electoral climate in which President Yar’Adua will have a fair chance of a second term. To be sure, appointing of INEC Chair is a pure political (not judicial) item, clearly reserved for the pleasure of the President and consent of the Senate. But once appointed, his tenure becomes vested by law and thus can only be considered for termination strictly on grounds of actionable misconduct, confirmed by a super majority of the Senate, not by ordinary presidential fiat. Here we have the NBA and now the NLC egging the President to breach the constitution by ‘sacking’ Iwu. Neither of these bodies bordered to mention the clear constitutional requirements (or constraints). And now that it is said that the NLC, particularly, is plotting to align with some desperate partisans to launch demonstrations to force the President to sack Iwu, it goes without saying that there seems to be a gathering plot to use Iwu’s tenure as a flash point to destabilize the polity and cause gridlock in the process leading up to the next elections in 2011. That Maurice Iwu will continue as INEC Chair is largely a political question and must thus be determined by whether the President decides to wimp-out and capitulate to the malicious self-interest of certain opposition elements or remain firm in exercising his sound political and constitutional considerations in not wagging the dog. This is besides the point that the Senate is mandated by the constitution to find serious and immediate cause before confirming such removal. Where is the cause or misconduct the constitution required? For starters, the NBA must advance direct proof that Professor Iwu pre-meditated some change in ink color in Ekiti for the sole purpose of disadvantaging the AC or that he is responsible for the Amaechi and Peter Obi saga. Amaechi’s troubles were between him, his party and his cousin; Peter Obi’s was with Abel Guabadia and Ngige; and the rest of the nullifications were mostly based on neo-legalities that were framed in the course of litigation. Quite a few were also based on complex legal questions of first impression that were bound for the courts anyway. Yet, all these are amongst the nullifications some misguided folks continue to cite as some direct evidence of Iwu’s sins. Better yet, if nullification of a result declared by INEC is a misconduct for which an INEC Chair shall be held to misconduct and fired, the framers of our constitution would have said so.

 

And there is more: The NBA ought to have known that the color of ink to be used is expressly within the sole discretion of INEC; and that it was by an INEC internal operations manual that a certain color was brought in ordinary use. In other words, it was neither required by statute, nor by other mandatory federal regulation having the force of law. But since the Court of Appeals is the final authority on the Ekiti matter, it is now left to society to wonder whether a higher court would have upheld or remanded the verdict on further appeal. We must not pretend that our courts are suddenly infallible when it comes to nullifying election results declared by INEC. To be sure, the constitution clearly provides that INEC Chair can only be removed for ‘misconduct’, not for some vicarious liability for a spontaneous and evidently bonafide decision of INEC ad-hoc field officers to change ink colors. Pray, if every result INEC declared is supposed to stand or upheld for peace to reign, why did the founding fathers of our constitution create election tribunals? Why didn’t the founding fathers simply provide that: “We hereby enact that for every election nullified, ‘Iwu Must Go’”? Why is the NBA or even NLC not calling for the firing of every judge or justice whose decision is overturned by a higher court? My opinion would have differed somewhat if the NBA is instead calling for the wholescale resignation of all elected officials (not just those of the PDP) who came to office on any election umpired by Professor Iwu. It is therefore not fair that NBA wants to ‘keep the baby and throw away the mother’, which is contrary to all notions of natural justice by which lawyers must ply their trade.

 

Further, this thing about NBA and NLC always taking on the government of the day and institutions that determine the rules of devolution of political power in Nigeria is assuming such a dimension that is fast rising to the level of overawing government and intimidating its high officials. This has brought the suspicion that the real target is not Professor Iwu but a President Yar’Adua that continues to be seen by fringe elements as a sitting duck and a disagreeable Obasanjo imposition. This is part of the reason some credible Nigerians have charged that these two bodies, as presently led, appears to be fronting for the opposition and disaffected politicians within the ruling party. Despite Ekiti and others like it, it is most probable that some weak links in the chain of NBA and NLC leadership have aligned with some scheming partisans and overambitious bogeymen looking to make hay and subdue Yar’Adua in 2011, perhaps on the indecent assumption that the President might be too ill to run or worse. True or not, I would rather NBA curtail this unwise politicking and concentrate more on those fine, apolitical ideals that underpinned its founding, including law reforms; constitutional amendment, awaiting trials; discipline of lawyers; professional ethics; continuing legal education; and like lawyer-related pre-occupations.

 

Can you speak more on your thesis that INEC and Iwu are blameless for what happened in Amaechi versus Omehia/PDP and whether the ruling was sound or not?

 

In Amaechi versus Omehia, the clear issue before the apex court was a plain legal question, not the collateral equitable question of first impression that ultimately carried the day. On that score alone, the verdict has nothing to do with any irregularities attributable to INEC or Maurice Iwu. If at all, Amaechi’s issues had more to do with PDP’s struggles with internal party democracy and the inequities arising therefrom. As Chair of INEC, Professor Iwu is charged with abiding by the law, not over-reaching himself to become ‘tsar of political parties’ or a one-man court of equity that must right every intra-party electoral injustice. INEC’s first instinct is to recognize only a candidate sponsored by a political party; and in Rivers state, Celestine Omehia was the candidate, as a matter of law. The stretched equitable considerations that ultimately led to Omehia’s fall are strictly within the purview of superior courts, not an INEC that is a mere non-adjudicatory agency with the limited mandate of receiving nominations and umpiring elections. So, to most legal analysts, Amaechi versus Omehia was most likely supposed to turn on the clear legal questions raised by his fuzzy substitution; and if Amaechi prevailed, the ruling was expected to be restricted to an order for a fresh ballot that would now have Amaechi as the PDP candidate. The other issue, wholly equitable and unaddressed by the briefs before the court, was whether the votes cast for Omehia in the election could be held in equity to have been cast for Amaechi? That was the point where the Supreme Court turned activist and ‘equity-prone’ by departing from a pure court of law and looked to its equitable jurisdiction to issue that part of the ruling that awarded the governorship to Amaechi. The rationale offered by the court is so far unknown to Nigerian black letter law as presently enacted; and to that extent therefore, it was an issue of first impression that was beyond the limited capacities of INEC. Let me explain. There is nothing in the Nigerian constitution or the Electoral Act – the two substantive laws by which electoral disputes are resolved – that expressly mandated or even implied that “where a substitution fails by court order, the victory garnered by the ‘interloper’ candidate shall be awarded to the candidate so wrongfully substituted”. The only situation where such victory could be legally awarded in accordance with some stretch of the law is one in which the wrong candidate was declared elected, such as in the case of Obi versus Ngige – in an inter-party contest, not intra-party. To be sure, what the law contemplated both in its express provisions and spirit was for a failed intra-party substitution to lead to new elections where the offended candidate will have the opportunity of standing as the candidate of the offending political party. The legislative history of our electoral laws and settled judicial precedents amply support this theory. And the reason is simple. Nigeria has a political party system and our laws do not yet recognize independent candidates (like America) nor elections without vested candidates (like Britain). It therefore follows at universal logic that any vote cast in our elections is assumed at law to have been cast not only for the political party but also for the candidate. Therefore, the votes cast in the gubernatorial elections in Rivers State were not just for PDP standing alone but also for Omehia in his own rights as a natural person and candidate who must have brought some electoral value to the ticket. Conversely, if Amaechi was never substituted, he could have lost the election, not as a consequence of any voter disdain for the PDP, but as a rejection of Amaechi – the natural person and candidate of lesser electable value. In other words, the votes cast in the governorship elections can never be divisible (at law) or separated from Omehia, the physical person just as the same votes cannot be separated from PDP, the sponsoring party. Both of them – candidate and party, are joint owners of the votes or entitled to them by the entireties, analogous to being tenants by the entireties in real property law, in which case each tenancy or entitlement is inseparable in their entireties from one tenant or the other. Keep in mind that, as far as those votes are concerned, PDP and Omehia are more like Siamese twins. Therefore, without more, the judgment would have been unassailable had it simply ordered new elections with Amaechi as the new PDP candidate. The judgment courted controversy by going as far as declaring Amaechi the duly elected governor in an election that did not have his name on the ballot. So, the objections raised by those criticizing the judgment can be sustained on the plain construction of the black letter law, even if sustainable on points of equity. That some people will ignore these legal complexities and still point to Amaechi’s case as another nullification that counts against Professor Iwu goes to illustrate the gathering demerits of such postulations, besides revealing a bizarre fixation for making Maurice Iwu the perpetual fall guy for pent-up frustrations of politicians who were outmanoeuvred by their own comrades in 2007. Therefore, it remains for vast majorities of Nigerians who remain patriotic and reasonable to thwart these clumsy intrigues and instead unite to support President Yar’Adua in his admirable goals of giving us a stable and well-ordered society.

 

Coming from America, which adheres to rule of law and now that you indirectly referred to it, do you believe that President Yar’Adua is sincere with his policy of adherence to rule of law?

 

Yes, the President is sincere on all counts; and here is why: This is not the first time Nigerian leaders have expressed some commitment to rule of law as the norm. But this is the first time Nigerians have seen a credible and noticeable presidential effort geared to converting the doctrine from a mere populist slogan to a cultural revolution of sorts. The difference lies in the fact that previous attempts failed to take hold because they remained mere slogans, sadly lacking in any bonafide and concrete measures on the part of the government of the time to make it a way of life for Nigerians and our institutions. Today, President Yar’Adua seems to have departed from that tradition, as amply demonstrated by most of his actions to date. Consider the President’s ram-rod reluctance to intermeddle in matters reserved to the judicature and the many other hot-button judicial issues of the day where the President left no one in doubt that he preferred to let matters play out within the settled procedural framework. In all of these situations, the President never pussy-footed and you don’t have to look far to notice the gathering diplomatic windfalls for Nigeria, coming from even the most cynical and hostile of nations. In America, Yar’Adua’s sincerity on rule of law has sunk in and is credited with an extraordinary degree of respect Nigeria is known to now enjoy at the highest levels of the US administration. Besides, it creates the right conditions that will stimulate the interest of venture capitalist that have the triggers to the direct foreign investments that a modern Nigeria needs for a sustainable economic growth. The only obstacle to this goal is this petty obsession some people still have with an election that held in Nigeria two years ago and their evident intention to use it as a subterfuge for their unpatriotic plots to distract President Yar’Adua and destabilize the country.

 

Ejimakor can be reached at:            alloylaw@yahoo.com

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