November 27, 2023

A Senior Advocate of Nigeria, Afam Osigwe, on election petitions as well as the illegality of the call for an interim government among other issues

Those calling for an interim government premise it on the need for reform in the country. Do you consider this to be a good reason?

There can’t be any talk of reform outside of the constitutional framework that will not amount to some form of coup. The constitution has provided for a change of government, and that is through elections.

An election has taken place, and a winner has been declared by the Independent National Electoral Commission.

I am aware that some of the candidates in that election have gone to court, but to justify the call for an interim government on the grounds of constitutional reforms suggests that reforms cannot be made within the constitutional framework. I don’t agree with that.

What other reasons make this unacceptable to you?

We need to ask: under this interim government, what law will regulate it since the constitution will not be applicable? Will it become a supreme law-making government?

At some point, it will slide into anarchy. I can’t walk my way into the thought process that seeks to justify this call. There is no doubt that many things could be done better in Nigeria, but the call for an interim national government is not the answer to it, and as a lawyer, since the constitution does not justify it, I am unable to see why anyone would ask for it.

Do you agree with the way the Department of State States handled the matter by issuing a press statement to that effect?

I don’t think it is professional. If people are plotting a coup, I do not expect a highly revered agency like the DSS to release a statement as if they were a political party, saying that they pledge their loyalty to the President-elect as if their loyalty were called into question.

Nobody is calling their loyalty into question. If people are plotting to topple the government through undemocratic means, it is part of their statutory duties and power to sanction an arrest.

If they have identified them as they claimed, then they should arrest them.

But after a week of making that statement, no arrest has been made; making it seem like that call was just flying a kite. It didn’t seem like it was founded on any credible intelligence, and no concrete investigation seems to be going on. I don’t think the press statement put them in a good light.

What is the cause of these agitations and the persistent clamour 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.

However, if the government is parochial and there are suggestions that if you are not from a particular place, you cannot access certain things, then people will feel unwanted and would prefer to go separate ways where there is a sense of belonging.

How can we make progress with these problems?

When we identify some of the maladies, bad policies, and nepotism that are experienced in governance, when people get rewarded based on merit, then we will make progress.

A reference was also made to a “series of protests” and attempts to get a court injunction to prevent 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?

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.

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