Illiterate Lawmakers, Static Laws

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

What’s that saying, about law being dynamic? That it evolves or develops, to meet the needs of an ever-changing society and life generally? Unfortunately, this doesn’t seem to be the case in Nigeria. On the contrary, our law seems to be static, or even worse, regressive, some laws still being enacted to protect certain groups of people, while many seem to observe laws in their breach, especially those who are meant to be the drivers of either enacting the best laws for the peace, order and good governance of Nigeria, like the Legislature, or should be executing the laws, like the Nigeria Police Force and other Government agencies – see Sections 4, 5 & 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) on the role of the Legislature, Executive and Judiciary. Nigeria and Nigerians seem to have been captured in some kind of negative web, and I often wonder how we will be untangled from it. 

Illiterate Lawmaker: Matters Arising

1) Section 318 of the Constitution 

Last week, I saw a news forward which did  the rounds on social media, to the effect that a State House of Assembly Lawmaker had been sacked by the Court of Appeal for not meeting the most basic educational qualification set in Section 318 of the Constitution, Primary School Leaving Certificate, as the claim of the Appellant was that the sacked Lawmaker, the Respondent in the Appeal, could neither read or write. How sad! That the bar has been set so low, that a person of whom it is alleged that he’s illiterate, would be the one purportedly making laws for the peace, order and good governance of a State! How many of them like him, are there in governance? Could be more then we imagine! And, yet, we wonder why some of our laws are what they are! Ambiguous, incoherent, and even repugnant to natural justice. 

I had argued in the past that, Section 318 concerning the definition of School Certificate and its equivalent, must be amended. It is a self-serving falsehood, orchestrated to serve only those with little or no educational qualifications, who have no business being in governance, to be able to be or remain there. The provision is also subjective, as in subsection d of that Section 318 provision gives INEC, which is not an education assessment institution, the latitude to be the judge of acceptable qualifications. 

2) The Problematic Section 29(5) of the Electoral Act 

Two weeks ago, I wrote about how the Nigerian Legislature has disappointed Nigerians over the past two decades; that instead of amending or repealing bad laws and replacing them with good, relevant, progressive, and up-to-date ones, an Oligarchy has been established between the Executive and Legislature to perpetuate and recycle themselves, and this Section 318 constitutional provision as to educational qualifications required to vye for office, now in cahoots with Section 29(5) of Electoral Act 2022 (EA), are both enablers of how the Oligarchy is achieving this despicable goal. 

The Court of Appeal, in reaching its decision in the Lawmaker’s case, as to the educational requirements to run for the office of Lawmaker used the earlier decision in Lado & Anor v Masari & Ors (2019) LPELR-55596 (SC) in which the constitutional qualifications of a Primary School Certificate holder with the extra conditions attached thereto, including the ability to read, write and communicate in English Language, were regurgitated, and the Court of Appeal apparently upheld the Appellant’s argument in the Lawmaker’s case, that the Respondent was unable to show that he could read or write and sacked him. The decision in Lado & Anor v Masari & Ors (Supra), was however, handed down before the advent of the questionable Section 29(5) of the EA. I have stated a few times, that the more this supposed new and improved provision is tested, the more it appears to fail. As I have been shouting from the rooftop, Section 29(5) of the EA restricts the class of who can bring matters pertaining to a Candidate’s constitutional qualification or disqualification to a pre-election matter, to be instituted at the Federal High Court, only by a fellow Aspirant who contested in the Party Primaries with such a Candidate. This current position of the law, has been upheld by various courts, including the Apex Court in the 2023 Presidential Election Petitions. It is therefore likely that, aside from the issue of constitutional educational qualification, unless there are other grounds that were proven against the sacked Lawmaker that warranted his sacking, he may very well be restored to his position, since the issue of qualification was brought as a statute-barred post-election rather than a pre-election matter, in a case by the candidate of another party, who by virtue of EA, lacks the requisite locus standi to do so. 

3) Is it Impossible to Sack an Erring Lawmaker?

Does that mean that because of a legal hitch, that is, Section 29(5) of the EA, a person who is obviously not constitutionally qualified to run for an election, can run for it and get away with it? – see Section 1(1) of the Constitution on its bindingness on all persons and authorities in Nigeria. That a person who may be proven to be illiterate, and therefore, disqualified from running for such an office, will be able to continue in that office because the wrong person brought the action against him at the wrong time? This kind of bizarre and absurd outcome, should make any right thinking person and Lawmaker question the essence, fairness, equity, honour etc of this law.

Remember I told you a couple of weeks ago about American Legislator, Republican Representative George Santos who had allegations of misspending campaign funds levelled against him, and how he was facing expulsion from Congress? Last week, he was expelled from Congress by a vote of his colleagues. Some Republicans, and all the Democrats in Congress, except two, voted in favour of Santos’ expulsion. The problem I have with Santos being expelled by his colleagues is that, despite the fact that his behaviour was criminal, their decision to expel Santos overrode the will of the people who voted him in. This is the same reason why one Democrat Representative from Georgia, abstained from voting for his expulsion. Unfortunately, not only do we do not have the type of Legislature that would take the type of step that the American Congress took against Santos to show their disapproval of his wrongdoing and to sanction him, our Legislature isn’t empowered to do so. In Nigeria, the only other recourse would be to recall the erring Lawmaker, but, I’m not sure that Nigerian constituents understand the process of recalling their representatives in the Legislature, let alone being interested in recalling them (remember the failed attempt to recall Senator Dino Melaye).

Elements of a Good Law: Qualities Absent from Section 29(5) of the EA

What are some of the elements of a good law? Aside from the fact that a good law is one that is able to resolve disputes decisively, it is not unreasonable, nor is it discriminatory, and it is equitable and enforceable. Section 29(5) of the EA, doesn’t appear to possess these features. 

In most of the cases which we have seen concerning constitutional qualifications and disqualifications, the provision of Section 29(5) of the EA appears to leave the dispute unresolved. Co-aspirants rarely institute legal proceedings against themselves, as this may amount to Party misconduct, and there are consequences stated in Political Party Constitutions for those who shun their internal dispute resolution mechanisms and seek legal redress, which may be considered to be embarrassing or bringing the Party into disrepute, or even anti-Party activities instead. Erring Party Members can face punishments, ranging from reprimand to expulsion from the Party – for example, see Article 21 of the APC Constitution on the Discipline of Party Members. This makes Section 29(5) look like a useless dummy. 

Again, Section 29(5) of EA appears to be discriminatory, contrary to Section 42(1)(b) of the Constitution, since it gives only a co-aspirant and no one else the locus standi to sue on constitutional qualifications and disqualifications, even if there are reasonable grounds to institute proceedings against such erring Candidate. While one may be able to defend the position that such proceedings cannot be open to everyone to institute, it may be more equitable to open it up to, at least, allow Petitioners to include questions of constitutional qualifications or disqualifications as part of their election petitions, as they also have a vested personal interest in the outcome of the election they have participated in, just as co-aspirants have a vested personal interest in party primaries; or else, such questions will never be resolved, as no co-aspirant will ever raise it. See Section 36(1) of the Constitution. A law that appears to be orchestrated in order that certain people can escape justice, instead of doing justice, I submit, is not a good law.

Laws Relating to Confessional Statements of Suspects 

And then, we have the situation where the laws may attempt to be evolved progressively, but are observed in their breach, or at the end of the day, as usual, they are skewed in favour of Government and/or its agencies (as Section 29(5) of the EA is skewed in favour of the erring Political Candidates)  instead of being skewed in favour of justice – these are bad laws. 

If you have ever watched any of the Crime Channels on DSTV, the programmes which show real life interviews of suspects at Police Stations, you will see that, in America, for example, for several decades now, such interviews are video recorded, thereby allowing everybody to see the countenance of the suspect, thereby ruling out the issue of 95% of suspects claiming that their confessional statements were taken under duress and the need for any trial-within-trial. On the contrary, in Nigeria, in 2023, we still have uncountable situations where confessional statements for most suspects are signed or thumb-printed by the suspect at the Police Station, not video recorded when the statement is being made, or, in the alternative, not witnessed by a legal practitioner who is present when the statement is being taken, as a result of which the first thing these Defendants do as soon as they arrive in court, is to retract their statements, alleging that they were made involuntarily, under duress and are consequently, inadmissible, thereby requiring a trial-within-trial. 

In this 2023 era of technology, in which even a smart phone can be used to make video recordings, why should we still be bogged down with trial-within-trial issues? Because, our law in that regard, is deficient. 

In 2015, Section 15(4) of the Administration of Criminal Justice Act 2015 (ACJA) made it mandatory for a suspect’s confessional statement to be taken in writing. In the same breath, Section 15(5) of ACJA also makes an oral confession of a suspect (without it being recorded), admissible in evidence! What then is the point of Section 15(4) which makes it mandatory that a statement be taken in writing if the subsequent provision more or less contradicts it, or the second half of the provision that mentions recording a confessional statement? In this day and age, these provisions are not up-to-date and do not meet global best practices. It should be mandatory, that such interviews or confessional statements should be videotaped. 

Section 9(3) of the Lagos State Administration of Criminal Justice (Repeal and Re-Enactment) Law 2015 (ACJL) made it mandatory that 1) the taking of a confessional statement must be video recorded, 2) if not, it must be taken in the presence of the legal practitioner of the suspect. This is never adhered to, as the Police take statements daily, without adopting either of these two options, yet, these statements are usually admissible in court. While I’m not saying that all suspects are innocent – they are not, it is a well known fact that many suspects are tortured by Police into making confessional statements, so much so that the Anti-Torture Act 2017 was enacted to deter this practice. Practically every Defendant in Nigeria, confesses their guilt to the Police! How?! This seems fishy, and if indeed, a person is innocent until proven guilty à la Section 36(5) of the Constitution, then video recording of interviews of suspects and taking of statements must be mandatory, and the Police and all law enforcement agencies must comply. 

Conclusion 

My point? In 2023, our laws must be contemporary, meeting the needs of today, and designed with the aim of ensuring that justice is achieved, instead of being skewed in favour of shady Politicians or Government Agencies. As for Section 29(5) of the EA, my last word on it is that, the only way to bring it up to scratch, is to expand its scope to Petitioners in their election petitions; if not, it will remain a loophole through which the undeserving are protected, possibly like the Lawmaker who isn’t literate!