The Coming Political Stalemate in Nigeria
by
Mobolaji E. Aluko
alukome@aol.com
Thursday, March 27, 2003
______________________________________________________________________________________
Content:
A.
INTRODUCTION
B.
AND WHAT IS TO BE DONE?
C.
MY PREFERRED CHOICE OF ACTION
D.
THE ROLE OF THE MILITARY
E.
EPILOGUE
F.
BIBLIOGRAPHY
G.
NOTE
A. INTRODUCTION
A political stalemate is brewing in Nigeria, and
we got to put on our thinking caps before we get seriously engulfed in another
crisis.
Today is Thursday, March 27, 2003. Beginning 16 days from now, we have the
following set elections upcoming in Nigeria:
- 12 April: National Assembly (House and Senate) elections
- 19 April: Presidential and state governors' elections
- 26 April: Possible run-offs
- 3 May: State assemblies' elections
- 29 May: President and other elected officials hand over?
Yet:
1. The voters' register has been published only in the fewest of places in the
country, probably no more than 5% of out of the 10,000 wards and 120,000 polling
booths. [The registration was held September 12 to 21, 2002, and again January
21 to 24, 2003].
2. The 120,000 polling booths have not been designated.
3. The final list of candidates of the 30 parties – that is 20 presidential,
about 100 gubernatorial, 500 senatorial, 3,000 House of Reps, 9,000 State
assemblymen candidates - has not been cleared.
4. Samples of ballot papers have not been made available. Final copies of 60 –
70 million of them are
obviously yet to be printed - in the absence of candidates' names and/or their
parties' affiliations.
5. The INEC polling agents (500,000 ad-hoc employees) are still being sought.
6. Consequently, the parties have not designated their own polling
agents/observers.
In short, obeyed in the breach – or in danger of
being breached - are the following sections of the Electoral Act 2002:
i) Section 1 (1) which provides that: "No general
election shall be conducted before the Commission has concluded the compilation
and updating of the National Voters Register otherwise called Register of Voters
which shall include the names of all persons entitled to vote in any federal,
state or local government election".
(ii) Section 10 (1) which provides that "the
Commission shall, by notice appoint a period of not less than 5 days and not
exceeding 14 days during which a copy of the voters' register for each local
government area or ward shall be displayed for public scrutiny and during which
period any objections or complaints in relation to the names or omitted or
included in the voters' register or in relation to any necessary corrections
shall be raised or filed".
(iii) Section 20 (1) which enjoins INEC to conduct
elections not less than 60 days after the display of voters register had been
concluded.
(iv) Section 40 (1) which states that "every
person intending to vote shall present himself to a presiding officer at the
polling unit in the constituency in which his name is registered with his voters
card".
On top of all the above, politics/elections-based assassinations and
intimidations are happening left, right and center – Harry Marshall
(assassinated March 5, 2003, in his bedroom in Abuja) and the attempted
assassination of Akin Osuntokun (Obasanjo/Atiku Campaign Headquarters Director
of Publicity). Obasanjo himself and/or his operatives have fingered 12 hot-spot
states, out of 36.
All of these lacunae are a recipe for chaos and violence if the upcoming
elections still hold on the days set above.
One does not pray for chaos and violence. In fact, one prays against them, but
chaos and violence are the fruits of disorder and plan-lessness. What you sow,
you reap.
B. AND WHAT IS TO BE DONE?
Some decisions have to be made - and pretty soon - if our "nascent democracy" is
to be saved.
As each day passes, the options become fewer and
fewer - and none very palatable - but one must still be chosen. What are those
options, and if possible, within Constitutional provisions?
-
Hold the Elections Anyway
According to the law, this is an easy choice.
(i)
Sec 64(1): “The Senate and the House of representatives shall each stand
dissolved at the expiration of a period of a period of four years commencing
from the date of the first sitting of the House.” [Section 105 (1) similarly
covers the State Assemblies]
(ii)
Section 132(2) of the 1999 constitution provides that election to the
office of the president shall be held not earlier than 60 days and not later
than 30 days before the expiration of the term of office of the last holder of
that office.
(iii)
Section 135(2) which is subject to the provisions of subsection 1,
provides that the president shall vacate his office at the expiration of a
period of four years commencing from the date, when (a) in the case of person
first elected as president under this constitution, he took the oath of
allegiance and oath of office.
Thus, clearly the tenure of the president expires
effectively on May 29, and the tenures of the National Assembly end on various
dates in June, the last no more than 10 days later.
But with the lacunae spelt out in the
Introduction, would this easy choice be a wise choice? I do not believe so.
-
Postpone the Elections for A Time Definite – and Have the Present Government
Continue in Office beyond May 29
There is what appears to be a precedence for
this: the local governments, whose terms expired in May 2002, but due to lack
of preparedness of INEC – among other legislative and executive shenanigans –
have since had their elections postponed until a time indefinite.
Nevertheless, the situations are not identical:
the local governments had a constitutionally authorized supervising body to fall
back to – the state governments and their respective State Electoral
Commissions.
Who do the federal AND state governments fall back
to? ECOWAS? AU? Or the toothless UN?
No one really.
The National Assembly has a slight upper hand
here: the term of the president ends about a week or so BEFORE that of the
Executive. So it can INSIST that the president leave, and then attempt to pass
some laws that benefit itself to continue in power – and hope that the nation
will go along.
But without a President, who would sign such a law
into effect? With the near-zero credibility of the National Assembly, who will
agree to that?
So we are stuck on that one.
Consequently, the only constitutionally-acceptable
measure of postponement here with the present government continuing in office is
a DECLARATION OF WAR!
How is that
so? Let us resort to the 1999 Constitution:
QUOTE:
Section 64 (2): If the Federation is at war in
which the territory of Nigeria is physically involved and the President
considers that it is not practicable to hold elections, the National Assembly
may by resolution extend the period of four years mentioned in subsection (1)
of this section from time to time but not beyond a period of six months at any
one time.
UNQUOTE
Section
105 (1) similarly covers the State Assemblies.
How
would this be done? Again the 1999 Constitution:
QUOTE
Section
5 (4) Notwithstanding the foregoing provisions of this section:-
(a)
the President shall not declare a state of war between the Federation and
another country except with the sanction of a resolution of both Houses of the
National Assembly, sitting in a joint session
UNQUOTE
The
most important question here: against whom shall we declare war? Cameroon would
have been convenient – over Bakassi – but it appears that cooler heads have
since prevailed, and Presidents Biya and Obasanjo have carried their pan-African
neighborly amity too far, and decided to settle matters amicably as gentlemen of
gentle-countries.
But I
have an idea: we should have a meeting with the South-West pacific country of
Tuvalu (population 11,156), come to some agreement that we will pay all their
civil servants for the next ten years, and give them oil free for the same
period – provided that they agree that we declare war on them, and they
reciprocate!
That
way, we will be kosher. No guns, no army movements, nothing. It would of
course be a sham war, quite okay, but this would be a win-win situation to get
us out of a tight spot – that is if the present governments INSIST on postponing
themselves into continuation in office.
-
Postpone the Elections for A Time Definite – and Meantime Appoint the Chief
Justice as President Pro Tem, as This Regime is “Retired” on May 29
After May 29, there would technically be a
vacancy. But Section 146 of the 1999 Constitution which addresses vacancies in
the Executive does not apply because neither the president or vice-president
would, after May 29, have “unexpired terms:”
QUOTE
Section
146.
(1)
The Vice-President shall hold the office of President if the office of President
becomes vacant by reason of death or resignation, impeachment, permanent
incapacity
or the removal of the President from office for any other reason in
accordance with
section 143 of this Constitution.
(2)
Where any vacancy occurs in the circumstances mentioned in subsection (1) of
this section during a period when the office of Vice-President is also
vacant, the
President of the Senate shall hold the office of President for a period of
not more than
three months, during which there shall be an election of a new President,
who shall hold
office for the unexpired term of office of the last holder of the office.
(3)
Where the office of Vice-President becomes vacant:-
(a)
by reason of death or resignation, impeachment, permanent incapacity or
removal in accordance with section 143 or 144 of this Constitution;
(b) by his assumption of the office of President in accordance with
subsection (1) of this section; or
(c) for any other reason,
the President shall nominate and, with the approval of each House of the
National
Assembly, appoint a new Vice-President.
UNQUOTE
The Senate President, who is in line for the
presidency, can make no claim here, because none of the methods in which the
president that affords him that privilege of succession applies – death,
resignation, impeachement, permanent incapacity, etc. ; see (146 (3) a).
Unless of course they have bad new designs on him,
but even time is an enemy in that venture.
So we
are stuck on that one too.
Now, if
the Executives (federal and state) INSIST on continuing in office, the People -
as in “PEOPLE POWER”,most probably as represented by the political parties other
than the ruling ones - have a resort in Section 233 of the Constitution: an
appeal to the Court of Appeal, which could quickly end up in the Supreme Court.
QUOTE
Section
233. -
(1) The
Supreme Court shall have jurisdiction, to the exclusion of any other court of
law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An
appeal shall lie from decisions of the Court of Appeal to the Supreme Court as
of right in the following cases – ……….
(e)
decisions on any question –
(i)
whether any person has been validly elected to the office of President or
Vice-President under this Constitution,
(ii) whether the term of office of President or
Vice-President has ceased,
(iii)
whether the office of President or Vice-President has become vacant; ….
UNQUOTE
With the record of this Supreme Court, it is most
likely that it would rule that the terms of office of the Executives have
expired, and that their offices have become vacant.
Aha –
but this leads to a good IDEA! Why don’t we send the Executive AND National
Assembly all packing, and encourage the Supreme Court to terminate them, with a
view of ensuring that the only people of the realm without an expiring term is
the Supreme Court and the Judiciary, and then hint that we don’t mind the Chief
Justice assuming the Presidency ex-tempore?
That
would be a neat solution to this mess that we have set for ourselves.
Is this
“Chief Justice-as-president” provision in our Constitution? Unless it is
written in invisible ink, I do not see it. In fact, unlike the United States
Constitution as amended (See Note 1), there is NO long line of succession
provision in our 1999 Constitution when both President and Vice-President are
unavailable.
But do
you have any other ideas less desperate than this my preferred choice?
C. MY PREFERRED CHOICE OF ACTION
So my
preferred choice is an Interim government centered around the Chief Justice of
the Federation and the Chief Judges of the States, who can then set about
creating federal government of national unity, governments of state unity, etc.
I suggest that we give them 18 months - say up to October 2004 - rather than by
the end of 2003 to get it right in terms of re-engineering the failing state
called Nigeria and arranging for new elections.
And yes
– not before a Sovereign National Conference.
A
slight problem: who would PROPOSE these STEPS formally, and then ACCEPT these
recommendations? It is not likely that the present governments - state and
federal executives and legislators – will commit political suicide!
Could
it again be by “PEOPLE POWER” – as in street demonstrations - and not just
political parties? The prospects of that are bleak. Let us be frank: it is
most likely that 80% of Nigerians don't know that we no longer have a military
rule and/or that Obasanjo is civilian president. Maybe 60%. Of the 20-40%
left, 50% are either not of voting age, or could care less what happened in
Abuja or the state governments: they don’t impact their lives. Of the 50% left,
50% support the Executives and Legislature continuing: they don’t want too many
complications. Of the 50% left, 50% would not move to do anything against
him. Of the 50% left who want to do something, 80%, being 32% Hausa-Fulani,
21% Yoruba, 18% Igbo and 29% non-Hausa-Fulani-Igbo-Yoruba, will argue until
tomorrow as to what to do.
If we
waited for Peoples Power in Nigeria, we would be terribly stuck.
D. THE ROLE OF THE MILITARY
Much as
I hate to admit it, the Military has a crucial role to play here, not in the
traditional role of coup-making, not to become governing autocrats once again –
a role in which they have woefully failed over the years, and would require a
regime more evil in enforcements than Abacha’s to maintain - but as obedient
guarantors of the Constitution.
The
fact of the matter is that whoever they pledge their allegiance to – whether to
the incumbents continuing in office, or to a Supreme Court Judge as Executive
President Ex-Tempore – will win the day. That is the reality.
The
problem is whether the Military will resist the temptation to take our ball and
run with it. We would then be pilloried by the Military once again with the
myth of public invitation.
E. EPILOGUE
In
looking at the political horizon of Nigeria, one is exhausted. It is at that
point that one offers up the only thing that one has: prayers to the
Omniscient, Omnipotent God for our potentially great country.
So: May God guide us aright to make the wisest
choice! [Amen.]
__________________________________________________________________________________
BIBLIOGRAPHY
http://www.vanguardngr.com/articles/2002/cover/f322032003.html
INEC’s Many Troubles
Vanguard, March 22, 2003
http://www.thisdayonline.com/political/20030326pol01.html
How Prepared is INEC
for April Polls?
This Day, March 26,
2003
http://www.thisdayonline.com/news/20030326pxt01.html
Yusufu, Ajuwa Raise
Alarm over Voters' Register
This Day, March 26,
2003
http://www.thisdayonline.com/news/20030326pxt02.html
Candidates Jittery over
Delayed INEC List
This Day, March 26,
2003
http://www.thisdayonline.com/news/20030326news09.html
April Poll: Police
Patrol Team Now to Protect Politicians
This Day, March 26,
2003
http://www.vanguardngr.com/articles/2002/cover/f225032003.html
FG moves to deploy
troops to volatile states ahead April polls
Vanguard, March 26, 2003
http://odili.net/news/source/2003/mar/21/26.html
Osuntokun and the
assassins – Rueben Abati
Guardian,
March 21,
2003
http://odili.net/news/source/2003/mar/20/230.html
Confusion as PDP, AD
Present Same Candidates
This Day March 20, 2003
http://www.vanguardngr.com/articles/2002/cover/f324032003.html
NBA Moves Against
Political Assassinations
Vanguard March 24, 2003
http://www.vanguardngr.com/articles/2002/cover/f415032003.html
2003 Polls: Can the
Police Cope?
Vanguard, March 15,
2003
F. NOTE
US Presidential
Succession Act
http://www.usconstitution.net/consttop_succ.html
Constitutional Topic:
Presidential Line of Succession
The 25th
Amendment reiterates what is stated in Article 2, Section 1: that the Vice
President is the direct successor of the President. He or she will become
President if the President cannot serve for whatever reason. The 25th also
provides for a President who is temporarily disabled, such as if the President
has a surgical procedure or if he or she become mentally unstable.
The original
Constitution provides that if neither the President nor Vice President can
serve, the Congress shall provide law stating who is next in line. Currently
that law exists as
3 USC 19, a section of the U.S. Code. This
law was established as part of the Presidential Succession Act of 1947. There,
the following line of succession is provided:
