Freeing Nigeria from the Chokehold 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Happy 64th Independence Day!

Happy 64th Independence Day? Well, this felicitation sounds very much like sloganeering to me, or a meaningless generic greeting, because after 64 years of self-rule, there’s not too much to be happy about. Instead of progress, it is unfortunate that our independence has brought with it, decline, degeneration and retrogression. Some people now argue that, we may have been better off remaining as a British colony, because it appears that whatever percentage the British as our colonial master may have kept back for themselves from Nigeria’s revenues and resources, may be a small amount compared to what our leaders have stolen and looted from Nigeria’s coffers over the years, corruptly plundering the nation for their own personal gain. And, the British would probably have done much more infrastructural development in Nigeria, judging from what they left behind, let alone the strong institutions we had back then. 

What is there to celebrate? Our Founding Fathers like Chief Obafemi Awolowo, GCFR, SAN and the Sardauna of Sokoto, Sir Ahmadu Bello, KBE, GCON, who is said to have died with only £10 in his bank account, must be somersaulting in their graves right now, seeing what the Nigeria whose independence they fought the British so fervently for, has become – a Fragile nation (complete with all the indices – insecurity, weak institutions, grossly inadequate infrastructure, extreme poverty, high unemployment, corruption, key offices populated with individuals who lack capacity etc), which has been tottering on the brink of failure for a number of years, as a result of bad governance. This is not de-marketing Nigeria, it is the bitter truth. 

When the Retired Generals get together to criticise the civilian Presidents, one wonders whether they don’t realise that they too are also part of the reason for Nigeria’s woes, having laid the foundation for failure! Truly, President Tinubu inherited a comatose nation from President Buhari, a country that was declared the poverty capital of the world in 2018 under Buhari’s leadership, one that was described by former British Prime Minister, David Cameron in 2016 as being “fantastically corrupt”. The Buhari slogans, ‘Change’ and ’Next Level’, brought a change for the worse, and the next level of suffering and regression. Nigerians urge President Tinubu not to turn his own slogan, ‘Renewed Hope’ to renewed hopelessness and endless pain. If we are to be honest, it is in reality, a Sad Independence Day, particularly when we compare Nigeria to countries like South Korea, China and Singapore, and how fruitfully they have spent their last 60 years; UAE, 30 years, and Rwanda, 24 years. Nigeria is quite a disappointment, she has done rather badly, but, hope is not lost, if we are able to get back on the right track forthwith.

After fighting for independence, Nigerians fought for democracy – to what end? We appear to have gone from frying pan to fire, exchanging colonialism briefly for democracy, then autocratic military rule which was exchanged for a kakistocratic, kleptocratic, somewhat plutocratic so-called democracy, populated by politicians who have totally manipulated the electoral process and the system, in order to capture Nigeria for themselves and stay in office perpetually; they have the country in a chokehold or headlock, whichever is worse,  and I’m wondering how Nigeria can ever be freed from it. The Politicians have destroyed most things, even our once strong and influential traditional institutions have not been spared; instead, the politicians have allowed them to be populated by the undeserving, again for their own benefit – ex-419ners,  an Indian hemp smoker, alleged kidnappers, to mention but a few. 

How Can Nigeria be Freed from the Chokehold/Headlock? INEC?

Be that as it may, as a Lawyer, I can only subscribe to freeing ourselves from this chokehold and making a change for the better, within the ambits of 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), and the law. And, to this end, we can only call on the three arms of government to start playing their constitutionally provided parts properly, for optimum results. 

The Independent National Electoral Commission (INEC) can play a good role in getting Nigeria out of the chokehold, if it performs diligently, credibly and independently, free from all external influences, including that of the Executive and Politicians. Unfortunately, there have always been serious complaints about how INEC conducts elections, so much so that late President Umaru Yar’Adua was honest enough to openly admit that the election that brought him into office in 2007 was flawed, and electoral reform was required. This time it was not a loser complaining, but a winner who had benefited from the warped process! 

The Edo Gubernatorial election which took place last week, is the latest in the book of criticisms of INEC’s performance – from allegations of overvoting at some polling units to an opaque collation process, in which the PDP has alleged that a whole level of the collation process, the Local Government was skipped, going straight from the Ward to the State level, while the PDP polling agents were not allowed in to observe the collation process. See Section 51(2) of the Electoral Act 2022 (EA) which provides that where the number of votes cast at a polling unit exceeds the number of accredited voters, the Presiding Officer shall cancel the result in that polling unit; see the case of Oyetola & Anor v INEC & Ors (2023) LPELR-60392(SC) per Emmanuel Akomaye Agim, JSC where the Supreme Court held that evidence required to prove overvoting are the record of accredited voters in the BVAS and the polling unit result in the Form EC8A.

At the polling unit, the results are counted and entered into the Form EC8A, signed by the Presiding Officer and Candidates or their polling agents; a photo of EC8A taken by BVAS and uploaded onto IREV. IREV is not a collation device; it only shows the results that are entered into it; so, garbage in, garbage out! Copies of the EC8A are given to all Party Agents and the Police, and then taken to the Ward to be entered into the Ward Collation Sheet, then to the Local Government where all the Ward Result Sheets are entered into the LG Result Sheet, before finally getting to the State Collation Centre to the Returning Officer. At every point, the different levels of Result Sheets are made available to all the political parties, and the process is done transparently, in the presence of the media, the political parties, their agents etc – see Sections 60, 62 & 71 of the EA and Atiku & Anor v INEC & Ors (2023) LPELR-61556(SC) per Emmanuel Akomaye Agim, JSC. The  allegation is that, this process wasn’t followed in the Edo election. INEC really has to be more up and doing, especially in off-cycle elections where there are no distractions of multiple elections taking place simultaneously all over the country. 

And, this is how Welders and unsuitable, unqualified Candidates, win elections! It is absolutely not a testament of capacity, to assert that because a person may be a member of the Legislature, they can govern – the roles are entirely different. Majority of our politicians do not mean well for this country, at all. As long as they are able to stay on the centre-stage by hook or by crook, they are happy to continue to pick the bottom of the barrel and rig them in to office, instead of the brightest and the best. If we can’t have free and fair elections, the truth is that it would be near impossible to free ourselves from the chokehold and cycle of underdevelopment and failure. Over to you, INEC.

The Legislature: Making Laws for Good Governance 

It is also time for the Legislature to raise the bar in lawmaking for the good governance of Nigeria, as opposed to passing self-serving laws like Section 29(5) of the EA, which more or less gives a carte blanche to constitutionally unqualified Candidates to be able to run for office, because it unreasonably limits those who can challenge Candidates’ qualifications to co-Aspirants in the same party! Aspirants and Candidates who lose out in primaries and elections, are usually compensated with other juicy government positions, the promise of which will make them refrain from challenging anybody’s qualifications in court. How then is  Nigeria expected to progress with our mixed bag of so-called leaders who lack capacity or are unqualified or both, but are able to slip through the cracks because of politicians, loopholes in the EA, corrupt INEC Officials and some corrupt judicial officers? Or maybe it is time to apply to the court for a judicial review of Section 29(5) of the EA to test its constitutionality, based on its denial of Candidates’ right to fair hearing? If this provision is shot down by the courts, it would help in freeing us from the chokehold, as it weed out many unsuitable people from political office.

Congratulations to the New CJN: The Critical Role of the Judiciary

Aside from INEC conducting elections properly, another way that Nigeria can start to be freed from this terrible chokehold, is if the Judiciary starts to play its critical role as the last hope of the common man seriously, and justice is always dispensed judiciously and judicially. We congratulate Her Lordship, Honourable Justice Kudirat Motonmori Olatokunbo Kekere-Ekun, CFR (nee Fasinro), on her confirmation as the 19th Chief Justice of Nigeria (CJN), and we feel confident that this will be a new dawn for the Judiciary in Nigeria. If the Judiciary plays its role properly, there will certainly be a significant turn around, as it would bring with it, justice. 

In nation building, there are two important areas that the Judiciary can be highly and positively impactful, which if they get right, the Nigerian society will improve – their adjudication of political and criminal cases. Practically every election ends in litigation, for one reason or the other. If cases are decided correctly, then the courts will cease to be a playground for politicians where they purchase injustice from some bad egg judicial officers, so as to get into or stay in office. Isn’t it ironical that the Sardauna of Sokoto who is said to have died with only £10 his account, even though he was Premier of the Northern Region for almost 12 years, a testimony that he wasn’t a looter like majority of today’s politicians, was murdered in cold blood along with his wife, while Yahaya Bello who is charged with looting over N100 billion during his eight year tenure as Governor, is roaming the streets of Abuja freely, playing hide and seek with the law enforcement agencies, and daring the Nigerian State to catch him for good measure! 

The other day, someone was telling me that Senator Orji Kalu was back in court. Naturally, I thought that his case of money laundering which was dismissed by the Supreme Court, not on its merits but a technicality that went to the root of the case and affected the jurisdiction of the trial court, had started de novo at the Federal High Court (FHC). To my shock, I learnt that this new case concerns fighting against his case being started de novo. What is this new trend of politicians going to court, to try to stop their arrest or prosecution? It must not be allowed to take shape.

You will recall that in 2019, Senator Kalu was found guilty of money laundering to the tune of N7 billion, and he was sentenced to 12 years imprisonment by trial Judge, Baba Idris J. of the FHC. During the trial, Baba Idris J. was elevated to the Court of Appeal, but by virtue of Section 396(7) of the Administration of Criminal Justice Act 2015 (ACJA) and a fiat from the President of the Court of Appeal (PCA), he concluded the part-heard matter. Even though the intention behind Section 396(7) of ACJA was good, in that it was enacted to prevent delay in criminal trials, in Ude Jones Udeogu  v FRN, Orji Uzor Kalu & Slok Nig. Ltd (2020) LPELR-57034(SC), the Supreme Court declared the said Section 396(7) null and void due to its inconsistency with the Constitution. By virtue of Section 253 of the Constitution, the FHC is properly constituted when it consists of a Judge of that court. Once Baba Idris J. was elevated, he ceased to be a Judge of the FHC, and therefore, lacked the jurisdiction to continue to hear the matter. It is trite that, the appointment of a Judge to a higher court takes effect from the date of appointment, not the date of swearing in. On lack of jurisdiction and its effect, see the locus classicus of Madukolu v Nkemdilim 1962 2 S.C.N.L.R. 341. 

The lack of jurisdiction of Baba Idris J, translated to the fact that everything that had been done in Kalu’s case was null and void, binding on no one and of no effect; as if it never took place. He was not discharged and acquitted. The Apex Court ordered a fresh trial – see the case of Hassan v FRN (2016) LPELR-42804(SC) per Olabode Rhodes-Vivour, JSC. Kalu subsequently went to the FHC, to obtain an order prohibiting the EFCC from initiating fresh proceedings against him, on the ground that his name was not expressly stated in the Supreme Court judgement! And, Inyang Ekwo J. acceded to that request. Why did Orji Kalu’s name have to be expressly mentioned in the Supreme Court judgement, when he was a Defendant/Respondent in the matter? Was the case against you or me? I would go as far as asserting that, even if the Supreme Court hadn’t ordered a fresh trial, the pending allegations against Kalu were enough grounds for a fresh trial. The EFCC/Government then subsequently, seemed to deliberately mess up the case, by filing a deficient record of appeal at the Court of Appeal. It all seems fishy. Any Lawyer who filed such a deficient document on behalf of the prosecution, definitely has a case to answer. 

Conclusion 

We welcome the new CJN, and hope that Her Lordship will no longer tolerate the nonsense which became the norm under some of her predecessors, leading to massive injustice that has contributed to almost ruining Nigeria. Apart from adjudication of disputes and criminal justice administration, the Judiciary is the main upholder of the rule of law, the protector of fundamental rights of citizens, a check and balance on the Executive and Legislature by reviewing their actions, as well as playing an important part in maintaining the integrity of the legal profession. If the Judiciary plays its role effectively, we will be on the way to wrestling ourselves free from the terrible political chokehold.