Abiodun Olatunji, a Senior Advocate of Nigeria, has been described as one of the best legal minds in Nigeria over time due to his interpretation of the constitution on various national issues. The renowned lawyer who is a partner at Abdullahi Ibrahim & Co. in this interview by YEJIDE GBENGA-OGUNDARE, speaks on the 2022 Electoral Act, conflicting court orders, affirmative action for women and the court’s stance on defection by Governor David Umahi and 16 lawmakers.
What is your take on the 2022 electoral bill has been signed into law by the president?
By assenting to the bill, the President has assured Nigerians that his administration is committed to his promise to bequeath an electoral system that guarantees that citizens’ votes will count, an electoral system that will produce a government that is truly representative of the people. The President and the National Assembly have done their part. Section 50[2] of the Electoral Act, 2022 is now the law of the land. The ball is now in INEC’s court to come out with a procedure of voting and transmission of results that guarantees transparency and integrity of the exercise. INEC has assured Nigerians that it has the capacity to transmit election results electronically. It now has the statutory backing to do so. We all look forward to a transparent election come next year.
There are several innovative provisions in the Act which are designed to deepen our democratic experiment. The provisions relating to electoral offences, nomination of candidates by parties, limitation on election expenses and others are very interesting. One of the major challenges with our democratic experiment is internal democracy. As the parties geared for the 2023 contests, their compliance with the provision of the Act relating to nomination of candidates will be keenly watched. Any failure on the part of any of the parties to strictly comply with the provisions of the Act will only result in such party not having its candidate included in the election for the particular position. Another challenge with our democratic experiment is the fact that electoral contest is quite expensive and it appears that with the limit placed on election expenses by candidates, as long as any candidate for any particular office is within the limit and he has the money, he can buy his way to such office. For the office of the President, the maximum is N5 billion; for the Governor of a state, it is N1 billion; Senatorial seat is N100 million and N70 million for House of Representative member. While the Act makes provision for the maximum amount allowed, it has simply by implication closed the door to patriotic individuals with good ideas and programmes on how to develop this country but who unfortunately do not have the humongous amount allowed, as such candidate will be no match for the moneybags who can afford to reach the maximum limit allowed by the Act. This is a major concern.
A Federal High Court Abuja has stopped the president, the Attorney General of the Federation and the National Assembly from tampering with the newly amended electoral act without following due process. What do you think about this?
As I said earlier, the President can propose an amendment to any law through Executive Bill presented to the National Assembly for enactment into law. What the Federal High Court said is simply that due process must be followed if any amendment is to be made to the Electoral Act, 2022. The Federal High Court did not and cannot stop the President from proposing amendment to any law including the Electoral Act, 2022 as long as due process is followed. Section 84 (12) of the Electoral Act 2022 which the President wants the National Assembly to amend has now been struck down by an order of the Federal High Court which ruled same as unconstitutional. The decision of the Federal High Court has attracted varied commentaries, while some respected legal minds have condemned the decisions as being gravely erroneous, in view of existing judicial interpretations of the relevant provisions of the Constitution, the Attorney-General of the Federation who is the Chief Law officer of the Federation has hailed the decision as sound and that it represents the extant constitutional order, my take on it all is that there is an order of the court which struck down Section 84[12] of the Electoral Act 2022, until that order is set aside by a superior court of competent jurisdiction, Section 84[12] as at today is not part of the Electoral Act 2022. As to the policy rationale behind the lawmaker’s insertion of the provision of Section 84[12]; now deleted by an order of the Federal High Court, I see it more of the political actors playing their games. It is all about survival. Those who inserted the provision are only concerned about protecting their interest and not the interest of the masses of this country while those oppose to it are simply not comfortable with the advantage that the political appointees will by virtue of their position in government including access to public fund, power and influence that comes with it, have over their challengers who do not have access to state resources. I think we need to focus more on how to reduce the level of poverty among our people, by creating jobs, funding education more and encouraging our children to go to school so as to raise the literacy level and by extension political awareness which ultimately will de-emphasize and whittle down the influence of money and power play in our political contest.
The House of Representatives rejected a bill seeking affirmative action for women in political party administration and inclusion of at least ten percent affirmative action in favour of women in ministerial appointment. What is your take on this?
The initial vote of the House of Representatives to reject the bills on indigeneship, citizenship and 35% affirmative action for women was rather a sad one. It is however gratifying that the House had since rescinded its earlier decision and has now voted to recommend the bills for consideration as part of the proposed amendments to the constitution. Nigerian women deserve better treatment. They are the ones that attend party meetings, campaigns and vote during elections but unfortunately, they have the least representation in government and party administration. The bill on citizenship seek to amend Section 26 of the constitution to provide for citizenship by registration for foreign spouses of Nigerian women while the bill on affirmative action seeks to amend Section 223 of the constitution to ensure that at least 35% of political party offices are constitutionally guaranteed for Nigerian women. These two bills and the bill on indigeneship which seek to allow women to become indigene of their husbands’ states after five years of marriage should immediately be passed by both Chambers of the National Assembly and concurred to by the states. Citizenship for the foreign spouses of our women, indigenship of the states of their husbands and 35% seats in the administration of political parties should be guaranteed as fundamental rights for our women. They deserve no less.
What lessons should Nigerians, especially politicians learn from the judgment of the Federal High Court ordering Governor David Umahi and 16 lawmakers of Ebonyi state to immediately vacate their offices for defecting from PDP to APC?
The judgment of the Federal High Court delivered in the action instituted by the Peoples Democratic Party against Engineer David Nweze Umahi, Governor of Ebonyi State, his deputy, Dr. Eric Kelechi Igwe, the All Progressive Congress and the Independent National Electoral Commission is currently being tested at the Court of Appeal and whatever the decision of the Court of Appeal would be, a further appeal to the Supreme Court for a final determination of the issues raised in the action will certainly be made by any of the parties to the action. The same goes for the judgment of the Federal High Court in a separate action filed by the Peoples Democratic Party against 16 members of the Ebonyi State House of Assembly who defected alongside the Governor and his deputy from the PDP to the APC. So, it is imperative that we wait to see how the pendulum will swing at the appellate courts. Suffice to say at this point that the decision of the Federal High Court was like a bolt from the blues. Nobody saw it coming. This is so because no governor has been removed from office by judicial order on the ground of defection since the return of democratic rule in 1999. This was so notwithstanding the fact that there had been several defections by Governors from the party that sponsored their election to the opposition party. The fact that no Governor had been sanctioned by way of removal from office for defecting from the party on the platform of which he got to power to another party had emboldened many governors to defect or threaten defection at the slightest provocation or even where there was absolutely no reason to justify such defection or threat of defection.
You will recall that in the build up to the 2015 general elections, about five of the then sitting PDP Governors pulled out of the party, the party that sponsored their elections; to join the newly registered APC without suffering any legal consequence. Interestingly, one of the five governors then is the current Minister of Transportation. He was at the time, the Governor of Rivers State. It was in the course of his judicial battle to regain his mandate from Celestine Omehia, the candidate that the PDP presented as its nominee for election to the office of Governor of Rivers State in 2007 and who was returned elected and sworn in as Governor of Rivers State that the Supreme Court in its decision stated clearly that it is the parties that contest and are voted for during elections and not the candidates. It was on the basis of that decision that the Supreme Court ordered that Mr. Rotimi Amaechi who did not campaign as a candidate for election to the office of Governor of Rivers State in the 2007 general elections be sworn in as the duly elected Governor of Rivers State, being the validly nominated candidate of the party (PDP) that won the election.
When Rotimi Amaechi and others then defected and nothing happened, it was a signal, albeit, dangerous one, to others that future defection will go unpunished. Similar defections happened during the 2019 general elections. It is therefore a political event that has come to be associated with every general election in Nigeria. When the Governor of Ebonyi defected to the APC what reason did he give? He said he was defecting to the ruling APC because the PDP which sponsored his election has not guaranteed that its presidential ticket for the 2023 elections will be given to a candidate from the South East. That has nothing to do with good governance, it has nothing to do with the provision of dividends of democracy to the good people of Ebonyi State, it has nothing to do with the implementation of the manifesto of the PDP which the people of Ebonyi bought into and on the basis of which they voted massively for the PDP and its candidates. It simply shows that the governor defected in pursuit of his personal ambition. He had since gone ahead to inform the president of his desire to succeed him in 2023. The 16 members of the State House of Assembly who defected with him to the APC did not do so because they were convinced that the APC manifesto is superior to that of the PDP or has more to offer the people of Ebonyi or because they believe that the APC will hand over its presidential ticket for the 2023 general elections to a candidate of an Igbo extraction, they defected with the Governor because they knew from experience that if any of them should take a principle stand against the position of the Chief Executive of the state, the member or members is/are not only dead politically, but dead and buried financially. So, for them, it was a question of political and financial survival. The control that the governors have on members of States Houses of Assembly is unbelievable. In fact virtually all the States Houses of Assembly owe their survival to total submission to the whims and caprices of the governors; they sit only to give legislative approvals to what the governors have decided.
Talking about lessons for politicians, I should say that politicians are poor students of history. They are only concerned about the spoils of the office. It matters not to them what negative effect or outcome a particular decision will have as long as such decision meets the political exigency of the time. What is paramount for the average politician is that his interest is protected. Once that assurance is secured, what comes next is in the womb of time. How else do you describe the ongoing sudden romantic political relationship between the ruling APC and the former Deputy Governor of Osun State, Senator Iyiola Omisore? It is all about interest, sadly, it is not the interest of the people but the parochial and self-centered interest of the political class. Should the Supreme Court, when eventually the matter is brought before it, goes ahead to confirm the decision of the Federal High Court, our path to constitutional democracy, strong political institutions and virile party system would have been cleared of all the mines that these defections constitute on it. If on the other hand, the Law Lords decide otherwise, a constitutional amendment to make it illegal for an elected governor to abandon the party that sponsored his election will become imperative if we are to continue on the path of constitutional democracy that we have chosen.
What is the implication of this judgment to the affected governors and lawmakers?
As it stands today and until the appellate courts decide otherwise, the implication of the judgment for other governors and lawmakers who abandoned the party that sponsored their elections is that they are in the same position as Dave Umahi of Ebonyi State and the 16 lawmakers, that means they are no longer entitled to retain their offices as governors and legislators. Having said that, it is imperative that we wait and see how the appellate courts settle all the legal issues that this judgment has brought up. This is very important, given that the question of tenure and removal from office of an elected executive governor is a constitutional matter. A governor can only be removed from office in accordance with the provisions of the Constitution. Section 180 and 188 of the Constitution of Nigeria 1999 (As Amended), provides for the tenure and removal from office of the Governor of a state. Anything done contrary to the provisions of the constitution is null, void and of no effect at all. So let’s wait.
Due to the contradictory judgments coming from the Federal High Court and the State High Court in Abakaliki, stakeholders have called on the removal of governors from the appointment of judges. Do you share this view?
The conflicting judgments from the Federal High Court and the High Court of Ebonyi State on the same subject matter is the unfortunate result of the very powerful influential roles played by the Executive arm of government in the appointment of Judges and the general administration of justice in this country. The courts at the state level are heavily dependent on the executive for their day-to-day survival. This is not healthy for the smooth administration of justice. The judiciary has to be financially independent. The appointment of judges has to be totally insulated from any form of political influence. A judge who owes his appointment to no political godfather and who knows that his promotion, his salary, his entitlement, his retirement benefits and even the day to day running of his courts are not dependent on the ego, the whims and caprices of any political actor, will not hesitate to declare the law as it is or give judgment against any government where the facts and the law come to no other conclusion.
Governor Umahi said the judge lacks power to sack him from office, noting that Justice Inyang Ekwo, has put judiciary on trial. What is your opinion about this?
Interestingly, the National leadership of the NBA has issued a strong rebuke of the governor and his unwarranted vituperations on the judge and the judiciary. Although, the governor later denied ever attacking the judge or ridiculing the judiciary, his denial notwithstanding, his widely reported vile reaction to the judgment and the order that he immediately vacate the office of Governor of Ebonyi State showed the level of his arrogance, contempt for the judiciary, the rule of law and how power drunk he is.
Ironically, it is the same judicial process that he has employed, through the exercise of his right of appeal, to put in abeyance, pending the determination of his appeal, the effect of the judgment and order of Justice Inyang Ekwo. On whether or not Justice Inyang has power to sack the governor from office, I will only say that the judicial power of the federation vested in the courts extends to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings related thereto for the determination of any question as to the civil rights and obligations of that person. If in the exercise of that judicial power, Justice Ekwo in the determination of any question brought before him in accordance with due process of law, found on the facts and applicable law and judicial authorities that the governor should be removed from office, he will be justified to make such order and heaven will not fall. If Governor Dave Umahi is removed from office, he will not be the first governor to be removed by an order of court; he will only have the unenviable record of being the first to be so removed on ground of defection from the party that sponsored his election to another party.
A High Court in Abakaliki, had earlier dismissed a suit challenging the defection of the governor and his deputy. What is your take on the conflicting judgments coming out from the same court of equal jurisdiction?
It is rather sad. I blame both the political class and some pliable members of the bench. The political class in their desperation to cling on to power at all cost will do anything to achieve their purpose including forum chopping for judicial determination of their political cases. Unfortunately, there exists in the judiciary, especially on the bench, individuals who are open to compromise and who either in awe of the powers of the executive or in gratification of their financial or economic desires, are ever prepared to do the bidding of politicians. You must not lose sight of the fact that the High Court of Ebonyi State which sat in Abakaliki and dismissed a similar suit could possibly not have reached a different decision given the prevailing circumstance and the crushing weight of political influence that governors exercise over the administration of justice in their respective states. That is one of the reasons why financial autonomy in the real sense of it, for the judiciary is a sine qua non for the administration of justice that commands the respect and trust of the people. For as long as governors continue to play prominent roles in the appointment of judges and the funding of the judiciary, citizens will continue to express doubt in the quality of judgments such as the one that emanated from Abakaliki and Umuahia in Ebonyi and Abia states recently.
There is however a ray of hope, the National Judicial Council recently mete out appropriate sanctions to members of the bench who were adjudged to have been found wanting in the exercise of their judicial discretions. The judges that have been disciplined will serve as deterrents to others who are still within the system that they have nowhere to hide; the system will smoke them out. I must however add that judges only decide matters based on facts placed before them. Where facts are suppressed, the courts can do little except the suppressed facts are subsequently brought before the court in which case the same court has the power to set aside its order which has been made on the basis of the suppressed facts.
The governor has petitioned Justice Ekwo before the National Judicial Council (NJC), is the NJC the appropriate place to challenge this judgment or the Court of Appeal?
The National Judicial Council does not sit as an appellate court on decisions of the Federal High Court established under Section 249 or the High Court of the Federal Capital territory established under Section 255 or the High Court of each state established under Section 270 or any other superior court of record established under the Constitution.
Appeals from the decision of the Federal High Court, High Court of the FCT, High Court of a state or its equivalent under the constitution lies to the Court of Appeal and not to the NJC. The powers of the National Judicial Council as enumerated under paragraph 21 of Part 1 of the third schedule to the Constitution do not include taking appeals from decisions of the Federal High Court or any other court established under the Constitution. The appropriate court for the Governor to challenge the judgment of the Federal High Court is the Court of Appeal which he has done anyways. I believe Governor Dave Umahi’s petition to the NJC is without merit to the extent that it is based on perceived biases fueled only by frivolous allegations of underhand dealings or what he called “hatchet job”.
The petition was just an attempt to intimidate the judge and others who might in future be called upon to adjudicate on similar case. The petition is nothing but an irritant meant to distract and possibly shake the Judge and others of his like.
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