2023 Polls: Between Emotions and Legal Provisions

Happy 70th Birthday to the ‘Entrepreneur of Entrepreneurs’, Dr Michael Adenuga GCON

Before I go into the ‘Word for Today’, permit me to celebrate my dear Egbòn (Big Brother), Dr Michael Adeniyi Agbolade Ishola Adenuga, CSG, GCON who attains the biblical age of ‘three score and ten’ on April 29, 2023. I met him about 40 years ago, just before his 30th birthday, and over the years, I have watched him evolve into ‘A Shining Star of Africa’ (not just Nigeria), a Banker, Industrialist, Telecoms Giant, one of the biggest players in Nigerian Oil & Gas, Real Estate, generally an ‘Entrepreneur Par Extraordinaire’, and a Philanthropist. Dr Adenuga is worthy of emulation; he is one of the largest employers of labour in Africa, one who has invested solidly in Nigeria, instead of engaging in capital flight, the hallmark of many wealthy Nigerians who make their money here and immediately proceed to invest it all in Dubai, Europe, etc, instead of reinvesting their funds in Nigeria. In any event, with all the negativity that is constantly being peddled about Nigeria, I decided that it would be refreshing to celebrate Dr Adenuga, a fine entrepreneur whose achievements serve as a positive ambassador for our country, one who President Macron of France, in honouring him with his country’s highest decoration, referred to  as “A true model for Africa”. As we say in Yoruba, “Ohun a ni l’an gbe larugè” (It is what we have, that we carry with high esteem).  Congratulations and Happy 70th Birthday Sir. 

Election Controversy at its Worst

Since 1999, during the Fourth Republic of our dear country Nigeria, this 2023 election cycle seems to be different from the last six. It has been riddled with so much more controversy, bitterness and a feeling of unease, and sadly, misconceptions which have unfortunately been spread via social media by our learned colleagues and educated people, who seem to be driven more by emotions than the provisions of the law, and have contributed in no small measure to heating up the polity with their warped interpretations of the law and facts. A couple of WhatsApp forums which I aware of became so toxic, that some members chose to leave platforms which they had been a part of for years. Repeating here, some of the inappropriate posts that I have seen on WhatsApp, will be reducing myself to the level of those whom I am complaining about. Instead of promoting the Preamble of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), to consolidate unity amongst Nigerians and live in harmony, these mischief makers are causing disaffection, and counterproductively encouraging the isolation of ethnic groups from each other, by their utterances. This is so very wrong. I condemn it. We are all Nigerians, and ‘in brotherhood we should stand’. 

I believe that since my page enjoys wide readership spanning different continents, it is my duty to try to correct some of the misinformation that has been disseminated. People can’t just behave like Donald J. Trump did when he didn’t get his way and wasn’t re-elected, filling the people with resentment to the point where he subtly instigated his supporters to more or less attempt a ‘Palace’ coup, based on baseless insinuations which couldn’t be proven, and had no grounding in law. There is a popular saying that: “The law is an ass”; and according to the Cambridge Dictionary, it means that “the legal system or a particular law is wrong or not good enough, and should be changed”. It is crystal clear that, in the case of the Electoral Act 2022 (EA) it is not good enough, and some of the provisions of the Constitution with regard to elections, particularly qualification and disqualification in order to contest for elective office, the aforementioned saying about the law being an ass is apt. Will the 10th National Assembly correct all the anomalies that have become apparent in the EA from its first outing in the 2023 elections, or will it be business as usual? If the latter is the case, our electoral process will never improve, and the courts will continue to be overwhelmed with pre-election matters and election petitions every election cycle. It is our hope that the 10th National Assembly will do the needful; for example, if an electronic voting process is most desirable, then the law must specifically provide for it, define what the process entails and make it mandatory. 

Various Electoral Issues

During the two election cycles which have occurred since I became the Editor of this esteemed publication, I have dealt with various topics concerning different election issues which occupied the front burner of Nigeria’s discourse; in fact, I’m almost an expert in election matters!  From the sequence of elections debate during the 8th National Assembly, to inconclusive elections after the 2018 Osun Gubernatorial election; to dual citizenship with regard to an individual vying for elective office, and citizenship in general; to electronic transmission of results before the eventual enactment of the EA, definition of a Public Servant, Party Defection, Place Holders after the 2022 Party Primaries, and qualification and disqualification of candidates who intend to  run for elective positions, particularly that of President, the different types of Forfeiture (in relation to the US matter concerning the President-Elect, Senator Bola Ahmed Tinubu), to mention but a few. 

Following the conduct of the 2023 elections, I have also discussed several burning issues, like whether the issue of INEC’s failure to transmit election results electronically in real time was fatal to the elections – I concluded that it isn’t, having perused the EA which more or less provides for a manual electoral process; and that of Section 134(2)(b) of the Constitution and whether the provision could be interpreted to mean that 25% of the votes cast in FCT is a requirement for a Presidential candidate to be declared as the winner of an election. I concluded that it isn’t, having studied the Constitution and case law including Awolowo v Shagari & Ors (1979) LPELR-653(SC) and Ibori v Ogboru & Ors 2006 6 N.W.L.R. Part 920. If you need 25% of 36 oranges and 1 lemon, and it is a requirement that the lemon be treated as an orange, then treating the lemon any different from the oranges, will certainly result in a different interpretation of the requirement. See Section 299 of the Constitution; Awolowo v Shagari (Supra) and Buhari v Obasanjo 2005 13 N.W.L.R. Part 941 Page 53 at 205-206.

Dual Citizenship & Forfeiture 

The issue of Dual Citizenship and Forfeiture do not seem to have been laid to rest and remain topics of hot public debate; and it seems that are still some misconceptions which must be cleared, in order to prevent people from being misinformed. In Ikengboju Dele Gboluga v Hon. Albert Akintoye & 3 Ors Appeal No. CA/K/EPT/NAS/286/2019, the Court of Appeal held that a holistic reading of Section 66(1)(a) of the Constitution (in pari materia with Sections 137(1)(a)(President) & 182(1)(a)(Governor) of the Constitution) does not prohibit a person from holding the citizenship of another country or from contesting for electoral positions. Also see the case of Ogbeide v Osula 2004 12 N.W.L.R. Part 886 Page 127. The hullabaloo about the President-Elect being a Guinean citizen, diplomatic or otherwise, goes to no issue. It doesn’t even make sense for the Constitution to allow dual citizenship, and then turn around to disqualify a Nigerian by birth who has dual citizenship from running for elective office – it would be contradictory.

In my piece of 29/11/22 titled ‘Forfeiture and Its Many Variants’, I discussed different types of Forfeiture under American Law – Civil, Criminal and Administrative. Administrative forfeiture is an action in rem (against property), which allows an agency to seize property without judicial process, if there’s probable cause to do so; and while I maintained that the three types of forfeiture all had criminal elements, I made a clear distinction between criminal and civil forfeiture stating thus: “Criminal Forfeiture obtains against a Defendant who is convicted of a criminal offence, and forfeiture in this regard, is part of the Defendant’s sentence…..In the case of Civil Forfeiture, the difference is that no criminal conviction is required, and unlike criminal forfeiture in which the proceeding is against a person, civil forfeiture is proceedings against property which is derived from criminal activities or proceeds of a crime”; in short, civil forfeiture is also an action in rem.

A Comparison with Woodbery’s Case

Last week, we featured a news story about ‘Woodbery’, Hushpuppi’s Partner-in-crime who pleaded guilty to a one count wire fraud charge in a US District Court of Northern Illinois. He entered into a plea agreement which includes the repayment of $8 million scammed from several companies, and the forfeiture of cars and watches to the US Government. I downloaded the Criminal Complaint brought against Olalekan Jacob Ponle aka Woodbery, where he was listed as the Defendant in the case. Even though Woodbery entered a plea agreement, he was charged, pleaded guilty to committing an offence and convicted. 

If this scenario is placed side by side with the American court process that concerns President-Elect Tinubu which has made the rounds, it is obvious that the latter is an ‘action in rem’, as President-Elect Tinubu was not listed as a Defendant in that case, nor was he charged like Woodbery; it was the funds in various accounts held by him and two other companies that were listed as the Defendant, and referred to therein as ‘Defendant Funds’. 

Undoubtedly, it is shameful for one’s name to be associated with crime or linked to narcotics, but the truth of the matter is that, fortunately or unfortunately (depending on which side of the divide one is), in the case of President-Elect Tinubu, his issue does not appear to meet the threshold for disqualification under Section 137(1)(d) or (e) of the Constitution. The issue of the law being an ass, again, is apt here, as the argument that what may qualify as being immoral or distasteful is not necessarily unlawful, fits the bill in this circumstance.  

A perusal of one of the Presidential election petitions which attached the aforementioned American court process that it seeks to use to disqualify President-Elect Tinubu, referred to the forfeiture of $460,000 as a fine. But, in law, a fine is a punishment that may be given, as a result of being found guilty of committing an offence. This means that for an individual to be fined, he/she must be charged with an offence, found guilty and convicted, then punished. According to the online “lawdictionary” a Fine is defined thus: “To impose a pecuniary punishment or mulct. To sentence a person convicted of an offence to pay a penalty in money”. The aforementioned attached court process doesn’t list President-Elect Tinubu as a Defendant, let alone him being charged for any offence, convicted, sentenced or fined. As Lawyers, we know that doing something as simple as using the word ‘or’ instead of ‘and’, or inserting a comma where there shouldn’t be one, can change the meaning of a sentence, let alone unilaterally changing the word in the American court process from ‘Forfeiture’ to ‘Fine’ in the election petition, where the American court process doesn’t so state. They mean two different things! In Buhari v Obasanjo (Supra) the Supreme Court held that “In the interpretation of a statute, once the words used are clear, ordinary meanings of the words in it are given to them”. I believe this literal rule of interpretation must be extrapolated, and used in this case of the insertion and misuse of the word ‘fine’ as a substitute for ‘forfeiture’. 

Conclusion 

I call upon Nigerians, especially we the learned and educated ones, to resist the temptation of fuelling resentment amongst the people, especially based on the baseless. Of what benefit is it to any of us, if our country is needlessly plunged into disarray? The law is not what we want it to be, based on our emotions, preferences, ethnicity, religion etc. So, why mislead the people into believing so? When matters are then decided in accordance to the law, mischief makers have already set a stage for bringing the Judiciary into disrepute if final decisions do not go their way, as a result of the false narrative they have already spread. While freedom of thought and expression remain sacrosanct by virtue of Sections 38 & 39 of the Constitution, we must refrain from throwing all caution to the wind based on things which may at best be misinterpretation and fallacy, in the interest of public order (see Section 45 of the Constitution). It is obvious that a large number of people have lost some confidence in the Judiciary, which is the venue for the ventilation of electoral issues, and there is no time better than this, for the Judiciary to restore this confidence, by showing that Nigerians can depend on it to handle all election petitions, judiciously and judicially, without fear or favour.