A Senior Advocate of Nigeria, Afam Osigwe, chats with ESTHER BLANKSON about election petitions as well as the illegality of the proposal for an interim administration among other topics
Those asking for an interim government predicate it on the necessity for change in the nation. Do you think this to be a good reason?
There can’t be any discussion of change outside of the constitutional framework that will not amount to some type of coup. The constitution has allowed for a change of government, and that is via elections.
An election has taken place, and a winner has been announced by the Independent National Electoral Commission.
I am aware that some of the candidates in that election have gone to court, but to legitimize the request for an interim administration based on constitutional changes means that improvements cannot be accomplished within the constitutional framework. I don’t agree with it.
What additional factors make this objectionable to you?
We need to ask: under this interim administration, what legislation will control it because the constitution will not be applicable? Will it become a supreme law-making government?
At some point, it will descend into chaos. I can’t navigate my way inside the cognitive process that strives to rationalize this call. There is no question that many things might be done better in Nigeria, but the demand for an interim national government is not the solution to it, and as a lawyer, because the constitution does not support it, I am unable to comprehend why anybody would seek it.
Do you agree with the way the Department of State States handled the problem by making a press release to that effect?
I don’t believe it is professional. If individuals are preparing a coup, I do not expect a highly regarded organization like the DSS to produce a statement as if they were a political party, declaring that they promise their devotion to the President-elect as if their commitment were called into doubt.
Nobody is putting their commitment into doubt. If people are preparing to overturn the government by undemocratic methods, it is part of their statutory duty and authority to authorise an arrest.
If they have identified them as they stated, then they should arrest them.
Yet after a week of making that declaration, no arrest has been made; making it look like that call was merely flying a kite. It didn’t appear like it was predicated on any solid information, and no meaningful investigation seems to be going on. I don’t believe the press release portrayed them in a positive light.
What is the cause of these agitations and the continual clamouring to break away?
If Nigeria is laid on sound principles of the rule of law, if people have a sense of belonging wherever they may have settled and are not made to feel like second-class citizens in any part of the country, if access to things like jobs and political opportunities is based on merit, these agitations will be a thing of the past.
Nevertheless, if the government is parochial and there are implications that if you are not from a specific location, you cannot access certain things, then people would feel undesired and would want to go different ways where there is a feeling of belonging.
How can we make progress with these problems?
When we recognize some of the diseases, terrible practices, and nepotism that are encountered in government, when individuals are rewarded based on merit, then we will make progress.
A reference was also made to a “series of protests” and efforts to secure a court order to delay the inauguration of the President-elect. Do you sense the government is averse to peaceful protest or apprehensive about court orders?
The right to peaceful protest should be protected by society. It is part of the right to freedom of expression. But I would be shocked if any court grants an injunction to restrain a person who has been declared the winner of an election from being sworn in.
Is it a practical setup that winners of elections are sworn in while petitions are ongoing?
At the return to civil reign, while Obasanjo was declared a winner, other contestants went to court. They did so in 2003, 2007, and 2011, and I think it was only in 2015 that the losers did not approach the court. In 2019, Atiku went to court, but the winners of these elections were sworn in. It never stopped anything.
If, hypothetically, the court gives the order to remove a person, it will take effect if it is upheld by the Supreme Court. Our laws could be such that petitions are determined before swearing in; I subscribe to that.
However, when somebody challenges your victory, there will be uncertainty until there is a final determination, but it should not stop the winner from assuming power.
Someone can be removed and replaced with another person, or a rerun can be ordered. The state will not grind to a halt. It is part of our democratic process until there is a constitutional provision otherwise. We have to go with the fact that petitions must be filed within 180 days and appeals within 60 days. It is our judicial process as provided for by our constitution.
A potential threat noted by the Human Rights Commission is that the judiciary may face some threats due to pressure. Do you agree with this?
A lot of bad behaviour ends up at the doorstep of the judiciary, and it makes them overworked. There were so many rights violations during the elections, and law enforcement did not do much to curtail them. Because of all these factors, the judiciary is overworked. But it is part of the government’s statutory function to settle disputes between the government and individuals and other authorities.
Is it healthy for our democracy that non-political issues would be suspended to cater to petitions of a political nature in the following months?
I think we have so politicised the political processes that we have highlighted and elevated political cases above criminal adjudication and commercial transactions, to the detriment of society. Until we do something about it, we will not make much progress.
We need to understand that no society can be respected when rights are heavily violated and people are unable to access justice. The politicians also help the system by ensuring that it is allowed to work. If the electoral process is seen as free and fair, then there will be less litigation arising out of it.
Do you agree with the suggestion that retired judges should be invited to sit on the tribunal to lessen the burden on judges?
I agree that we may need to increase the retirement age of judges or employ more judges.
Retired judges are retired unless we amend our laws to allow that; until then, I don’t think that call is justified.
