IT'S TIME FOR PRESIDENT YAR'ADUA TO BRING SLOK HOME

WITH ALL DUE RESPECTS, MR PRESIDENT, IT’S TIME TO BRING SLOK HOME

By: Attorney Aloy Ejimakor, Washington DC

Before I came into motherland Nigeria late in the week before last, I had a busy schedule of sorts back in Washington DC. Busy in more sense than one. It was supposed to be a mild social schedule of going from one Nigerian community event to the other to enjoy some good wine and old-world comradeship with fellow Nigerians from across North America, with some coming from as far as Halifax in the far reaches of Canada. Well, from coming together to socialize, a plurality of Nigerians that descended on Washington waxed true to type by taking the opportunity to quickly founding an ad-hoc body that soon began to do some serious appraisals of the state of the Nigerian Federation, and they so aptly named it ‘One Nigerian Diaspora, One Nigeria’ or ONDON, for short. Amongst the ranks were elements from the crème de la crème of the Nigerian Diaspora – from members of the Organization of Nigerian Lawyers in Diaspora, to Executives of the mother Union – the Organization of Nigerians in Diaspora, Nigerian Professionals in North America, and so forth – mostly middle-of-the-roaders who wouldn’t be caught dead consorting with any ideological or ethnic partisans.

So, it came to pass that the many ordinary Nigerian social gatherings slated to occur in Washington DC inside the last months of 2007 soon graduated from the usual social banter and a good dose of Nigerian music and cuisine to something of a national patriotic chest-beating that included President Yar’Adua and Chairman Iwu’s crucial visits to the US in the same period. Washington DC was thus so hyped up with the Nigerian flavor that Usman Baraya, the acting Nigerian Ambassador to the US called it the season of Nigeria and Nigerians in the US. That so much captured it all.

President Yar’Adua (tentative, diplomatic and credible) was the first to come to town. After him, enter Professor Maurice Iwu (self-assured, patriotic, and primed to inform). For their different missions, both Yar’Adua and Iwu had largely successful outings with Americans and the Nigerian Diaspora to varying degrees. President Yar’Adua charmed George Bush and the White house with his rule of law mantra, commitment to electoral reforms and a diplomatic sleight of hand on Africom. On Africom, Bush was befuddled, and those that didn’t know Yar’Adua well failed to appreciate the deft manner he handled Africom - with no clear pointer to where Nigeria actually stood. On his part, Chairman Iwu made a compelling case for the integrity of Nigeria’s electoral process with his release of the 2007 general elections report, aided by intellectual and patient engagement of his most unreasonable critics. His moral conviction and love of Nigeria was touching.

But one thing (or more) was missing. Not with Iwu’s fine presentations – because the man won hearts and minds and took the wind out of the sail of his critics. It was instead with President Yar’Adua that Nigerians in Diaspora harbored some regret that they did not have enough opportunity or proximity to ask him to address some urgent national business – and that is to say: the business and commercial interests of certain Nigerians significantly hurt by some Obasanjo-era executive decisions that much of the Nigerian Diaspora understood to have been politically motivated. Discussed alongside this issue is the logic advanced by many that Obasanjo’s legacy (or even some peace and quiet in retirement) will continue to suffer unless President Yar’Adua urgently and clearly addresses some of the major questionable decisions carried over from the previous administration. What is more is that such decisions, while they persist, are seen to be a double whammy of sorts in the sense that they constitute both a drag on bringing some closure to Obasanjo – so he can have peace, and the moral burden such policy hangovers impose on a Yar’Adua that is supposed to be winning Nigerians to his side.

From the many such decisions, the two that became constant refrains and stood out like sore thumbs are the ones that had to do with revocation of Slok’s license and credible reports that Obasanjo also revoked up to four oil blocks hithertofore owned by Dr. Orji Uzor Kalu, former governor of Abia State. Judging by the professional caliber, ideological and geographical spread of my fellow Nigerian Diaspora who gathered to discuss these issues among the many other national issues of the day that were also within gun sight, I surmised that something good will definitely come out of this. There was this general agreement that Orji Kalu was specially marked out and dealt an unfair hand. Throughout the discussions that spanned for hours on end, I noticed this palpable feeling that the opinions rendered were mainly propelled by a common human instinct to see immediate and total justice to a man (Orji) who has suffered so much just for making bold to speak his mind. One gentleman from up Northern Nigeria by name of Haruna captured it well when he just blurted out: ‘Guys, it’s time to bring Slok home and restore Orji’s oil blocks’. And another jolly good fella hazarded: ‘or pay him some compensation for every buck he lost’. It was admirable.

What made Orji’s case extremely compelling above the many others like it was the sad fact that the man may have irretrievably lost his controlling investments in Hallmark bank, and the Southgate, where he was said to also have substantial interests. The general feeling amongst the many Diasporans gathered preponderated so much in favor of making Orji Kalu whole again - to the extent that some people even toyed with the quaint idea of encouraging Orji to explore legal means of seeking recompense from the Nigerian government for all he may have lost from the summary expulsion of Slok from Nigeria’s skies, unlawful revocation of his oil blocks, and the unfair forcible closures of Hallmark and Southgate. This postulate assumes that a political solution will remain unlikely in the foreseeable future.

A few lawyers even suggested that action may properly lie in US courts because the unique investment structure of Slok, for instance may sustain a colorable claim of minimum contacts with the United States which is all that is required for an aggressive and activist US federal court to assert long-arm personal jurisdiction over foreign sovereigns when it comes to commercial activities. But those who know Orji well maintained that he is too patriotic to attempt anything that might make Nigeria vulnerable to some foreign court and the certain diplomatic embarrassment that follows. This is not discounting the plain fact that precedents are known to exist in every democracy touting adherence to the precepts of rule of law where someone in Orji’s position had proceeded to court and easily prevailed on an action for real and exemplary damages. Yet the feeling amongst the Nigerian Diaspora gathered was that Orji is smart and statesmanlike enough to look to President Yar’Adua’s well known goodwill for the final redress that must someday soon come to Slok and other investments interests of his that were similarly imperiled by executive fiat. It is seen to be an easy political decision for President Yar’Adua because of two reasons: one – no due process was present in the time-line of the decision that led to Slok’s fall and the oil blocks to boot, in addition to the high political content and drama that pervaded them all; and two – by credible accounts, these are amongst some of the few decisions that Obasanjo is said to be now regretting. And that Orji himself is not known to have pressured Yar’Adua in this wise even made his case much more compelling and his mien as admirable as ever.

Other national issues that dominated discussions throughout the two-day symposium included the place of Professor Maurice Iwu in the present scheme of reforming Nigeria’s electoral systems and institutions. On this point, the feeling was rife that Maurice Iwu deserves national gratitude for surmounting monumental hurdles to deliver on an election that was so crucial to advancing Nigerian democracy to the next level. And considering his evident mastery of the traditional difficulties that had burdened Nigeria’s past elections, participants resolved to encourage President Yar’Adua to consider Professor Iwu an indispensable part of the nation’s current efforts at electoral reforms that make sense. Ancillary to this was the hope that Alhaji Atiku and General Buhari would, in the nearest future, see the ultimate wisdom in having their cases withdrawn from the tribunal so that Nigeria will be free from the drag that comes with protracted legal challenge of presidential poll results. Parallels were drawn from the United States and India where politicians have understood that such prolonged challenge to results of national elections, howsoever justified, ultimately brings some incalculable harm to a nation’s standing in the comity of nations. But most importantly, while applauding the Nigerian judiciary for its independence, everyone present hoped that the election tribunals hearing petitions across the country will not turn copy-cat by frivolously nullifying elections that should ordinarily stand; and that the Presidential Election Tribunal particularly will muster the requisite judicial temperament to see beyond mere legalisms and understand that nullifying a presidential election in a nation as volatile as Nigeria is no child’s play and therefore should never arise unless on a strict proof of some egregious misconduct that cannot be ignored in any circumstance. There is no evidence of such a thing yet.

Back to Orji Kalu, Slok, and oil blocks, it was the final opinion of the Nigerian Diaspora gathered that The Gambia where Slok holds sway is not known by any credible accounts to be below par in her air safety regulations, and given the exemplary performance of Slok in West Africa’s airspace industry, Nigeria stands to benefit from calling the airline back home. The benefits are legion – running the gamut from reducing the nation’s unemployment rates to adding value to the private investment portfolio of Nigeria’s aviation industry. But more to the auxiliary point of this essay, the Nigerian Diaspora feels very strongly that Obasanjo should care more about his legacy by summoning his famous courage to finally go to President Yar’Adua and encourage him to reverse some of hard-nosed decisions he seemed to have taken in too much haste, undoubtedly as a consequence of his understandable attempt to protect his political turf.

Aloy Ejimakor is of Law Group, Washington DC alloylaw@yahoo.com

TIME TO PURGE JOHN ODAH FROM THE ELECTORAL REFORM COMMITTEE

TIME TO PURGE JOHN ODAH FROM THE ELECTORAL REFORM COMMITTEE

By: Aloy Ejimakor, Washington, DC

Vanguard of January 28, 2008 reported a certain Comrade John Odah of the Nigerian Labour Congress as calling for the resignation of Maurice Iwu as the Chair of INEC. Fine, Mr. Odah is a Nigerian and therefore entitled to public airing of his opinion on any national issue. But when such national issue involves the ongoing debate on the reform of Nigeria’s electoral systems and institutions, Mr Odah is no longer entitled to an unfettered expression of his opinion, and even so publicly. He is however free to hold such opinion privately and to express it to the hilt but only within the boundaries of the privileged deliberations of the Electoral Reform Committee (ERC).

The ERC is still working on the important task of giving the nation a new electoral regime that will improve on the gains of the very difficult 2007 general elections and strengthen the institutions and laws for conducting future elections in the country. Under the universal rules governing public conduct and utterances of those who serve on such committees, members are seen as quasi-public officers even though of an ad-hoc tenure, and thus barred from making public utterances that might have the appearance of pre-empting the work of the committee or jumping the gun to go beyond the letters of reference establishing the committee. Anybody who read the letters of reference for the committee will agree that Professor Maurice Iwu’s tenure as INEC Chair is not one of them. Therefore, Mr. Odah went beyond the express scope of the ERC when he took words out of the mouths of the NLC and called for Maurice Iwu’s resignation or sack. The NLC can push for such if it so wishes, but Mr. Odah, regardless of his position as General Secretary of NLC must not be part of such call for as long as he continues to serve in the ERC. Other than calling for Iwu’s resignation which carries a veiled threat to President Yar’Adua’s tenure as well, Mr. Odah should himself resign forthwith from the ERC; otherwise other members of the committee which have been embarrassed by his irresponsible behavior and inflammatory public remarks might demand and compel his resignation or it might even get to a point where President Yar’Adua will have no other choice than to fire Mr. Odah to pave way for a more responsible labor leader to be appointed to the ERC to represent the Nigerian Labor Congress.

To be sure, Mr Odah was appointed by President Yar’Adua, who is in office on an election and result declared by Professor Maurice Iwu. That means that by calling for Iwu’s sack, Mr. Odah is also questioning the legitimacy of the very President Yar’Adua who appointed him to the ERC. And taken further, Mr. Odah should know that instigating the NLC to push for Iwu’s sack will not look credible unless he also simultaneously pushes for President Yar’Adua’s resignation. So, one must assume that the real and ultimate target of this latest attack from Mr. Odah is President Yar’Adua because it is conceivable that once Mr. Odah is finished with his threat to lead a charge to hound Iwu out of office, his attention will then be directed to President Yar’Adua whose tenure was established by an election and result declared by the same Maurice Iwu and the conduct of which Mr. Odah wants Iwu’s head to roll. Whether Mr. Odah will then be patient enough to push for President Yar’Adua’s sack by peaceful means or resort to suggesting some other extra-constitutional means to accomplish his task remains to be seen. But while Mr. Odah is at it, he should be told in clear terms by all who mean Nigeria well that the reckless and veiled threats he loves to make are matters that border on the national security of Nigeria. Maurice Iwu is just one factor, but President Yar’Adua’s tenure as a consequence of the crucial 2007 general elections is central to the national security and stability of the Federation of Nigeria.

The ERC exists solely for the broad and national purpose of making recommendations to reform the electoral systems and institutions of the whole of Nigeria, and not that of Edo State alone where the AC’s loss of the governorship still makes Mr. Odah as mad as hell. So, for as long as Mr. Odah continues to dwell on the singular politics of Edo state and what he may have lost there, he will be failing in his important and broader national assignment as a member of ERC. No meaningful contribution can be expected from a man who is so embittered and partisan to the point of continually occupying his committee down-time with some desperate efforts to hold brief for the AC and entertains himself with the same old wives’ tales of fantasying on Maurice Iwu’s sack. It must be noted that Mr. Odah’s efforts are merely futile because the AC can hold its own and properly press its case at the tribunal or the courts of public opinion. The AC has its own capable partisans and apparatchiks and so does not need a busy and desperate labor leader-for-sale like Mr. Odah to make a public case against Iwu. The ERC should not be converted to a forum for partisan brinkmanship or Iwu/Yar’Adua-bashing by those who continue to engage in the crazy notion that Maurice Iwu alone should bear all the blames for all the electoral woes that have betide Nigeria since its founding.

The primary duty of a labor leader in the caliber of Mr. Odah is to occupy his time with finding lasting solutions to the myriad issues confronting the Nigerian working man if he is reluctant to take his present assignment seriously and hanker down to quietly working out a fine boilerplate for conducting the nation’s future elections. He should not lend himself as a tool for politicians with all sorts of dubious intentions because doing so will be to the larger detriment of the non-partisan labor he represents. Thus, if Mr. Odah has had it and he no longer wishes to represent labor in the ERC because he now wishes to be a revenge-seeking politician, he should do the honorable thing by resigning his leadership of the Nigerian Labor Congress and dive into the murky waters of partisan politics to his heart’s content. Nigerians will not allow him free reign to use the Nigerian Labor Congress as sword to threaten those he regards as his political opponents or a shield to protect himself when he engages in unwarranted and malicious aggression against Nigeria’s institutions and those charged with the difficult task of overseeing them.

It is pertinent to note that this is not the first time Mr. Odah has allowed himself to be swayed by naked partisanship. It was reported then that no sooner was he appointed to the ERC than he canvassed the bizarre idea that INEC be disbanded and replaced by the ERC as the new body that will conduct future elections in the country. He was then laughed off as merely lacking in proper knowledge of Nigeria’s constitutional system. It is now clear that Mr. Odah still does not understand that INEC and its chairmanship is a creation of the constitution and the ERC in which he serves is not but was created merely at the pleasure of a President that means Nigeria well, if not with Professor Iwu’s blessing as well. Thus, for entertaining such fancy ideas of hounding people out of office, Mr. Odah immediately comes across as someone who is limited in his understanding of the ad-hoc nature of the ERC or the role he has so graciously been invited to play in it. In other words, Mr. Odah has shown that he lacks the requisite character, fitness and temperament to serve as a member of such an important committee. Thus, if he does not resign, President Yar’Adua should see fit to fire him with immediate effect if the committee proves unwilling to demand his purge from its ranks. The least that Mr. Odah can expect out of his recent outbursts is an official query to show cause why he should not be removed from the ranks of the ERC forthwith.

Mr. Odah cannot defend himself by any wild claim that he was merely restating the position of NLC. Eve if it can be argued that NLC is free to take a stand either for or against Maurice Iwu or President Yar’Adua or the 2007 presidential election, Mr. Odah is supposed to recuse himself from any proceeding where such resolution is carried because not doing so will clearly mark him out as partisan, irresponsible and dangerously pre-emptive of an issue that is still receiving attention in a committee he serves as a member. It is much like the law courts where a pending matter admits of no public opinionating because it is subjudice. Anything contrary is immediately deemed pre-emptive of ongoing proceedings and is therefore sanctionable. As a former Chief Justice, an experienced Justice Uwais, who chairs the ERC can be trusted to know what to do to protect the sanctity and integrity of the proceedings of the ERC from any member who believes he can get away with such unbridled contemptuous conduct. That Mr. Odah went as far as interjecting scathing statements of his own means that he is no longer interested in serving the overall interests of Nigerians as a member of the ERC but is now engaged in a mindless political campaign and mean-spirited personality attacks of his own.

Analogies can be drawn to so many others from the civil society, labor or judiciary who serve in this government either as members of some committee or as ministers or the like. Let us take AGF Andoakaa for instance. If for any reason, the Nigerian Bar Association (NBA) of which Andoakaa is a member wishes to rise against Chairman Iwu or President Yar’Adua, AGF Andoakaa, though a member of the NBA will not be the one reading the resolution, not to talk of adding additional remarks of his own. As a member of the ERC, Mr. Odah is a quasi-public officer for as long as the ERC sits, and thus should exercise restraint or do what all conscientious persons do by resigning if he disagrees with those under whom he serves instead of staying put to continue to embarrass himself and the Nigerian labor which he purports to represent.

Attorney Ejimakor is the Convener of Organization of Nigerian Lawyers in Diaspora. alloylaw@yahoo.com

HOW MAURICE IWU SAVED NIGERIA FROM BEING ANOTHER KENYA

HOW MAURICE IWU SAVED NIGERIA FROM BEING ANOTHER KENYA

By: Ugo Harris Ukandu, Washington DC

Election is a necessity for every democratic country because it is the only fair way for making a clear choice between two or more competing opponents for public office. But in Africa, we seem to be falling for an international conspiracy (in collaboration with a few selfish African leaders) to perpetuate the long-term aims of slavery and colonialism to divide and conquer Africans by tribe, creed, ethnicity, religion and a ‘we-versus-them’ mentality. In every African election, there is hardly a loser willing to concede victory to the opponent. Every loser begins to believe that he won once the so-called international election observers and monitors begin their usual mantra of casting aspersions on the conduct of the election and the electoral umpire. These are the same observers and monitors who prefer to stay in five-star hotels in African capitals and give opinion and recite numbers on election preparations and results in rural areas of Africa, and purvey wild statements that incite a nation against herself.

It is time to curb these activities, especially when these monitors/observers do not know much about the local political or electoral dynamics of the African locale. International organizations and other countries are welcomed to partner in elections conducted in Africa if they come with the purpose of sincere collaboration in advancing our democracy without threatening our stability. But in any case, such as in Kenya where the foreign observers usurped the powers and roles of national electoral umpires, Africans are supposed to summon the courage to tell them off like Professor Maurice Iwu did before they go too far. Kenya capitulated to excessive foreign interference and is now paying the ultimate price for it.

In both Nigeria and Kenya, the EU offered some money, demanded pride of place at meetings of national electoral umpires and wanted unchecked access to the biometric data on all registered voters. In Nigeria, a patriotic Maurice Iwu and a confident INEC refused the EU money and the demands based on sound national security considerations. And this was the point when the EU at once began a sustained international and local campaign of discrediting the Nigerian election and INEC leadership. This sowed discord among the citizens of Nigeria, the political parties and the contestants for office. Added to this were the other problems Nigeria already had to deal with such as the militancy in the Niger Delta as well as some in Kano and Yobe states. But Nigeria was to overcome because Maurice Iwu refused to play wimp like his Kenyan counterpart, who has become notorious for allowing foreigners too much leeway and now seems unwilling to defend the result he declared.

INEC and Nigerian authorities did a very good job in saving Nigeria another sad story in our history. Today INEC and Dr. Maurice Iwu have been vindicated when you look at what is happening to Kenya primarily because the Electoral Commission of Kenya (ECK) accepted the controversial demands Maurice Iwu had rejected and thus paved the way for a situation that has made the foreign observers the ultimate electoral umpires for a sovereign and stable nation like Kenyan. For some peanuts and poor handling of her national security, Kenyan now has to deal being turned against itself and for the first time in its post-colonial history. Now with more than 700 people killed by mob and more than three hundred thousand people displaced and turned to refugees, the same two-faced EU is still on hand to help settle the problem they fueled. This has become the lot of Africans every election time, except for Nigeria which, through Maurice Iwu’s eyes, saw Kenya and rejected it before it happened.

According to a recent report by Reuters of January 17, 2008 on aid to Kenya: “European Union should freeze all aid to the Kenyan government until the crisis over President Mwai Kibaki's disputed re-election is solved, members of the European Parliament have said. The lawmakers, who criticized the EU executive for disbursing 40.6 million euros ($NZ78.24 million) of aid a day after the election, said the result was not credible and called for a fresh vote if a fair recount was not possible. The European Parliament asks for the freezing of all further budgetary support to the government of Kenya until a political resolution to the present crisis has been found. The disputed election has dented Kenya's democratic credentials and rattled donors. Post-election turmoil, in which hundreds have been killed, has hit Kenya's economy as well as supplies to east and central African neighbors. Although its aid is limited compared with what it gives poorer African countries, the EU is one of Kenya's top donors, providing 290 million euros between 2002 and 2007…...” unquote

As an African, I am sick and tired of the problems and havoc election has caused Africans simply because we take some aids and economic assistance that don’t mean much to our overall national development. Nigeria has matured to a point where we must reject any attempt to dictate impossible electoral values to us just because of some small foreign grants we can afford from a day’s oil royalties. As a people, we have had our fair share of foreign-instigated conflicts during our infancy as a nation and we can ill-afford such conflicts in our present state of national maturity. In 1966, my father, my family, uncles, relatives and thousands of my people and other tribes were butchered in Northern Nigeria during and after an election which led to two bloody coups in rapid succession. My heritage and faith as a person born in Northern Nigeria was totally destroyed. Evidence is legion that another major part of the reason why these had to happen was because we had easily accepted the overbearing interference and influence of the British in our domestic politics and their instigation of bitter tribal politics in what was supposed to be a healthy contest amongst African brothers that happen to speak different languages. A repeat could have occurred in 2007 if Maurice Iwu had not been around to ensure that the transition took place despite all the international and domestic conspiracies to scuttle it.

Thus, looking at Kenya, and how Maurice Iwu saved the day in Nigeria, these questions arise in my mind: Does election or democracy really matter for Africans, given that both are creating more and more problems for us? Is there any other alternative for selecting our leaders in Africa in the face of this mindset from the West that African elections are not credible? Are we being herded to a corner where we can no longer be confident of our hard-won sovereignty and then go wholesale to invite our former colonial masters back to conduct elections for us? Is there no way we can have some sort of a tenured electoral umpire (one that has delivered on a transition election) at times like this when our nation is still in democratic transition?

While considering these questions, we must first deal with the problems which are already identified as constituting some of the drag that has bedeviled our difficult match to democracy. We must begin with the role of foreign election monitors, especially the EU genre, which all together must be told clearly where their role begins and ends. Their combined influence on local electoral logistics must be curbed, otherwise we may fall into the situation that led to the problem in Kenya where these foreign observers/monitors arrogated the powers and reach of the national electoral umpires to themselves and began to call the shots as though they are the final arbiters of all elections held in Africa, and thereby undermining the local constitution and authorities. Election is one of the most important and true tests of a nation’s sovereignty and coming of age, and therefore any nation perceived as wobbling on delivering on her national elections courts the disrespect and overlordship of other nations.

When these observers/monitors discredit the election authorities working under the difficult conditions of over-heated transitions, it becomes humanly impossible for the natives or ordinary people to respect the law and order in place, if not the election outcome as well. How can you expect your citizens to respect poll results declared by electoral umpires that have already been discredited by all manners of foreigners with doubtful intentions towards your country? No election is perfect and also cannot be expected to reflect values foreign to the locale where it is conducted. The Europeans learned from their mistakes and so, they should encourage Africans to learn from their own mistakes as well. Disparagement or reckless assessments intended to isolate the electoral leadership will never cut it.

Part of the effort therefore is to encourage aggressive information management on the part of African governments of the day to counter any negative misinformation that attempts to discredit our electoral umpires and the institutions we have in place at the given point in time. Lessons can be learned from India, Taiwan, South Africa, and other emerging democracies which have done well at countering negative press and succeeded in projecting an acceptable level of some electoral purity. And most importantly, we must understand that electoral tribunals (and judgments issuing from them) are part of the overall process of all elections even in advanced democracies. Therefore, we must refrain from this infantile tendency to celebrate yet another nullification of an election as further proof of how rotten our elections are. In our system of phased electoral process, INEC is merely the agency of original jurisdiction (much like a trial court with original jurisdiction), with finality of election outcomes residing with the tribunals and other higher courts. Thus, it will not be fair to call for resignation of an INEC boss merely because a result he declared had been overturned without also calling for the mass resignation of all trial judges whose judgments are overturned on appeal.

Ugo Harris Ukandu is of Nigeria Democracy and Justice Project, Washington, DC. abujarock@yahoo.com

OF T. A. ORJI AND THE EVIDENTIARY VALUE OF AN OKIJA SHRINE VIDEO

By: ALOY EJIMAKOR

The law of evidence is the basic kernel that underpins the administration of the civil and criminal laws of any common law country when it comes to fair and balanced resolution of disputes presented before the courts. Nigerian superior courts operate within the parameters of settled common law rules of evidence received from the British as a consequence of colonialism, and then adopted and saved by local legislation and judicial precedents as part of the laws of Nigeria after independence. Nuances may be present but are tangential and infinitesimal. The only marked departure from the common law precepts can be found in our Customary and Sharia court systems where strict adherence to common law rules of evidence is not mandated as the norm. Customary courts are free to look to local customs and traditions and Sharia courts are known to have their own unique rules of evidence for determining cases properly lying before them. Conversely, our High Courts of original jurisdiction, including the Election Tribunals are bound to strict application of the federal rules of evidence, mostly codified in the Evidence Act. It cannot be otherwise without being repugnant to the system we currently operate. And whenever the record on appeal demonstrates a clear violation of the evidence rules, a court of appeal is expected to find error and reverse or remand. This is why controversy is now trailing the recent ruling of Abia Governorship Election Tribunal admitting into evidence a video claimed to depict Governor Theodore Orji under pain of some traditional ritual at the Okija Shrine. For a tribunal with a fine reputation for issuing sound interlocutory orders thus far, admitting the video is troubling because there is nothing in our current rules of evidence that can justify the ruling, even by some stretch.

First, the video and what it purports to depict is not probative of any of the core material issues before the tribunal, and that is: Whether Chief Theodore Orji was duly or lawfully elected and returned as Governor of Abia State, or whether he was qualified to run (if at all this can be said to still be at issue in view of Supreme Court rulings on point). Probative evidence is one that is capable of aiding the fact finder (or the tribunal) in determining a factual question or reaching a reasonable conclusion as to where the truth lies between two opposite propositions. So, with regard to the said video, wherein lies its impact or probative value on determining whether Chief Orji was duly elected and returned? Or what does this video have to do with the material issue presented by the petitioner that the governorship election was rigged? And it cannot in any way be probative of whether Chief Orji was disqualified based on his disputed indictment because that issue is at once precluded by clear Supreme Court precedents in other related cases that held Chief Orji qualified to contest for office despite his spat with the EFCC. Or more to the point, does the video prove that Chief Orji belongs to a secret society, of which Okija Shrine is hardly one by any definition.

Further, even when such evidence can be said to have some probative value, it can still be inadmissible if the prejudicial effects outweigh the probative value. It has been demonstrated in the preceding paragraph that the video had absolutely no probative value to the material fact at issue before the tribunal. But assuming that it does in some way, the video is sadly rich in prejudicial effects because being associated with the much maligned Okija Shrine is worse than a smear campaign. It results in many prejudices or bad blood against the person. It impugns Chief Orji’s community reputation as an upstanding Christian and leader of his state, casts him in a bad light before Nigerians as a pathetic blood-drenched ritualist, and most importantly, can ignite the odium of the tribunal against his person, and therefore may be seen as capable of coloring the tribunal’s legal and factual conclusions. And all of these have no scintilla of connection with proving the proposition that Chief Orji either rigged the election or was not lawfully declared and returned, or that he was not qualified to run. And if the intention is to portray him as disqualified ipso facto by pointing to his connection to ritualism, then it must fail because there is no law that prohibits Nigerians from participating in rituals, including even those that involve animal (but not human) sacrifices or some symbolic sprinkling of animal blood. Rituals are commonplace amongst many customs in this country and have even formed part of the religious or denominational practices of many good and decent Nigerians. Think anointing oil and other exotic rituals performed in far-flung forests in pitch darkness, all with ethereal incantations, dancing, warts and all. Thus, this video has no useful evidentiary value likely to pass the strict muster of appellate review.

Secondly, no evidence is admissible if it is not relevant – in the broad sense that such evidence must have some connection or some reasonable nexus to the fact at issue. Again, the issue before the tribunal is not whether Chief Orji’s alleged initiation or some ritual dance before a shrine enabled him to rig the election and become governor, or somehow led to some temporary loss of reason that confused INEC to declare and return him as elected. Or does anything in the video show Chief Orji in some physical manifestation as an election rigger or with his fingers in the cookie jar? No, because the relevant issue before the tribunal that will have the most bearing on the outcome of the petition is, again: Whether Chief Orji was duly elected and returned in accordance with the Constitution and the Electoral Act. Therefore, in so far as our rules of evidence are concerned, admission of a ritual video to prove election malpractice or even some stretch of disqualification to contest is not relevant and therefore must fail.

Thirdly, no photographic or video evidence is admissible without proper foundation or authentication, unless in some rare cases where such evidence is self-authenticating. Proper foundation strictly requires the purveyor or the person proffering such evidence to prove the identity of who made the video, when it was made, whether the video is a copy or original, the purpose for which the video was made, and even in-court production and technical inspection of the recording device used in producing the video. In between these proofs, the tribunal must take expert testimony to determine whether the video has been tampered with, the chain of custody of the video since it was made, and whether the producer or maker of the video is an amateur or a professional. And since the video purports Okija Shrine as the location depicted therein, the tribunal is supposed to take oral and other testimony including a tour of the shrine proper to determine whether the video is in truth a depiction of the locale of the shrine, not some other contrived or identical locale. It is only after all these that proper foundation or authentication can be said to have been made as can sustain admissibility of the video as part of the record evidence capable of any direct consequence on the tribunal’s final legal and factual conclusions.

Fourthly, under the ‘rule of the poisonous tree’ or the ‘exclusionary rule’, admissible evidence can still be excluded if it was obtained in violation of law. The laws of Nigeria, including our organic law- the Constitution prohibit violation or invasion of anybody’s privacy, which includes making a recording of a citizen without his consent, especially in his private moments. Therefore, if in truth it was Chief Orji that was on that video, then the video is inadmissible or excludable because it depicts Chief Orji in a private ceremony of some sort and which he has the constitutional right to keep from the public domain or purview of a tribunal that does not sit in camera. To be sure, Chief Orji could not be said to have freely consented to the recording or to its public airing. And if one may ask: Is every aspect of the rituals, rites or other traditional ceremonies performed at the Okija Shrine prima facie illegal? There is nothing in the laws of Federation of Nigeria that has expressly outlawed Okija Shrine even after the morbid discovery made at that shrine a few years ago. Therefore, even when an argument can be advanced that parleying with Okija Shrine may be bizarre and funny, there is yet to be a clear law disqualifying one from running for public office simply because he paraded before a shrine with a vaunted mystic efficacy. And modern Nigerian judicial practice is averse to the notion of looking to the paranormal in the administration of our justice system.

Lastly, our rules of evidence clearly prohibit admission of hearsay evidence. In its present form, that video reeks of multiple layers of hearsay. Hearsay evidence is roughly defined as a prior statement or any proposition being presented in court by a person other than the ‘utterer’ for the purpose of proving the truth of the matter asserted in the statement or proposition. In lay terms, hearsay arises when someone else seeks to repeat what another person said without the person that made the statement being in court to deny, admit or impeach the statement. As a matter of evidence law, a video is a statement of fact or a proposition that seeks to prove a material fact at issue. So, the person seeking to introduce the video cannot be different from the person who made it unless the maker is in court to be confronted and cross-examined to determine veracity or credibility. Thus, absent direct and confrontational testimony elicited from the landlords of Okija Shrine, it is pure hearsay to introduce a video that is asserted to have been cast at the exact geographical locale of the shrine.

There is nothing in the record of proceedings leading up to admission of the video that can suggest that the tribunal subjected the video to even the most liberal tests of hearsay before ruling to admit it into the record. The tribunal should have taken testimony from those who claimed to have made the video to determine whether in fact it is true that they were the ones that made it. And testimony should have been also taken from the high priests or other accredited custodians of Okija Shrine to determine whether in fact they can confirm or deny that the video was made at the shrine. For instance, a common law court cannot admit the assertion made by someone else other than you showing a video of your house without testimony from you or other person duly qualified to be in the know confirming that it is your house that is in truth depicted in the video, unless the imagery is self-authenticated by some landmark, address or other insignia so open and notorious that no opposite conclusion can reasonably be drawn. The most popular exception to the hearsay rule is ‘dying declaration’ or ‘dead man’s declaration’, where the person who would have confirmed or denied the matter asserted is either dead or made the statement in apprehension of imminent death. The custodians of Okija Shrine familiar with the unique terrain of that shrine are still alive and thus should have been summoned to confirm or deny the assertion at issue that the shrine depicted in the video is in truth Okija Shrine and not some other native rain forest that ordinarily evokes similar mystique and awe like Okija Shrine.

Therefore, the video claimed to have placed Chief Orji at the specific locale of Okija Shrine is not admissible because it is not probative or relevant; and it is unacceptably prejudicial, is obtained in violation of law and constitutes hearsay. For these reasons, it is expected that upon further reconsideration, the tribunal will move to strike the video from the record.

Aloy Ejimakor is of Law Group International, Washington, DC. alloylaw@yahoo.com

AS THE SENATE PREPARES TO AMEND THE CONSTITUTION

By: ORJI UZOR KALU

Constitutional amendment is an indispensable process that must be embraced by any nation that seriously desires the advancement and growth of her democracy and way of life. Experience from around the world has shown that most national constitutions came into being during periods when nations were in a hurry to depart from some failed system of governance or on an urgent hunt for a new political order that best represents the society’s will of that moment. In the United States, the first Continental Congress that gave America her written constitution was in much hurry to emancipate America from an irritatingly undemocratic royal rule coming from a Britain they perceived as a declining power. At the time, the desire for America’s independence was exigent and titillating, and the constitution Americans enacted to guide their path to the new order was done in so much hurry that too many fundamental values like abolition of slavery and equality before the law were either missing or clumsily drafted. Even bad grammar and some mischief were legion. But in time, Americans were to prove that they could do better. Constitutional amendment was the answer.

In Nigeria, the 1999 constitution presently in operation was not that badly drafted by the original framers but as finally enacted, it contained or was absent provisions the departing military forced upon it by sheer decree, thus subverting much of the popular will of Nigerians as represented by the Constituent Assembly. Yet, this is understandable because Nigeria, much like America before it, was also in much haste to rid itself of military rule, and therefore was bound to make some errors in the enacting of her constitution. Americans corrected their own errors through several amendments that began from the 1st amendment to the odd twenty-seven they have as of today. The amendments were matters of course because they simply encapsulated the popular will sifted from vibrant public debates, judicial pronouncements, or creative legislation issuing from the United States congress. In Nigeria, as the senate retreats to amend our constitution, it must be encouraged to look first to the rich body of sound postulations coming from Nigerians of differing hues – both the lay public and the fine constitutional experts that bestride our nation. But more importantly, the senate should very well look to the many rulings from Nigeria’s Supreme Court in which constitutional questions were implicated and settled in many ramifications. Again, in the United States, it was the Supreme Court that pointed the way to constitutional reforms on matters such as equal protection of the laws by striking down segregation or state-tolerated discrimination. The US congress followed suite by enacting the 14th Amendment. And when the Court struck down private discrimination against blacks, the congress codified the ruling by enacting the 13th Amendment. The Miranda Rights read to American residents upon arrest was as a result of court rulings which were later to give birth to the 5th and 6th Amendments; and judicial rulings were the forerunner of the 11th Amendment on the devolution of police powers from the federal government to the states. So, you can say that some controversy and judicial activism were first present before many amendments proceeded in America.

In Nigeria, much controversy has arisen over our process for qualification for election to public office to the point that many of the core issues now fit for constitutional amendment have already been settled by our high courts around the country, becoming final and thus law when reviewed by the Supreme Court. One example is the issue of vacancy of the office of the Vice President when he ceases to be a member of the political party that saw him to office. Another is the authority of political parties to substitute their candidates, and so on. These are all constitutional matters found in several sections of our constitution in its present form but nonetheless courting controversies because of absence of sound considerations to their nuances when the constitution was being framed. So, now that our very own constitutional court – the Supreme Court has issued clear rulings for or against the opposite propositions on some of these questions, we now have a judicial direction to where the nation should go, just like the Americans before us looked to their Supreme Court rulings for guidance on the nature and reach of their own many amendments. More specifically and to recap, the senate needs to tinker with provisions on elections, election petitions, fair treatment of candidates by their political parties, the effect on tenure of annulled elections, and so on. The judicial roadmap is clear enough and in the public domain and therefore they bear no repeating here. Where the issue is considered unfit or verbose for constitution-making, then some ancillary and simultaneous federal legislation may prove to be the alternative.

The next hot-button constitutional issue is our system of local government administration, especially matters relating to the discretionary powers of the governor to regulate their finances as he deems fit. We have seen situations where the federal government was bitterly pitted against the states on issues of withholdings and the frustrations citizens continue to express in this regard. On the other hand, we have also seen much complaint by vocal local government chairpersons on the issue of unfair withholdings of greater portions of their ‘statutory’ allocation by some governors. So, in as much as corruption is to blame for the lack of appreciable impact of the allocations going to LGAs, many LGAs lagged simply because their governors cut too deeply into their statutory allocations to a level that left nothing after recurrent expenditures to pay for any sustainable capital item. And to make matters worse, there is no ameliorative law that compels the governors to account for what they deducted from the LGA allocations, thus making it inherently immoral and against the tenets of public policy underpinning our federal system. It rankles that under the present scheme, any governor is free to unlawfully deduct from the allocation of one LGA and spend the money as he wishes, including even taking it wholesale to another LGA or other unrelated project that he just fancies. This is not consistent with pure federalism, as it is only in Nigeria, and not in India or the United States, that a state governor is able to yank funds statutorily allocated to another tier. In the US, the governor of a state has no business with county (LGA) finances, and even goes as far as making grants from state coffers to counties. It cannot be the other way around without infringing on the core elements of fiscal federalism in which an effective local government system is expected to function properly. There is no basis in reason to believe that the governor of a state is suddenly possessing of superior discretion in terms of how much of its allocation an LGA is entitled to, especially when the governor is not the one that is domiciled in and directly administers the local area.

Contrast the foregoing with a situation where the President suddenly asserts some pseudo-legal authority to impound statutory allocations bound for the states, and retains all but barely the much required for states’ recurrent expenditures. Nigeria will boil, and the world would laugh at us. Therefore, just as the President is assumed not to be imbued with better fiscal integrity or discretion than a governor, so also we must operate under the premise that the same is true between a governor and an LGA chair. And to press this point home, though as a drift, is our tendency to hold the local government system in contempt merely because of the operative word ‘local’, which is a word of art most Nigerians associate with all kinds of negativities and is even considered a pejorative or slur. Call any Nigerian local and see his red-faced reaction. The British did not call the system of local government they operated here before independence ‘county’ for nothing and the Americans that operate the best federal system known to man retained the same characterization. In both climes, where English is the first language, they knew well enough to figure that the word ‘local’ is often misconstrued to represent something demeaning or less than respectful, and thus they were careful to prefer ‘county’ – a synonym that evokes modernity and suburbia, and has come to be seen as a semantic differentiation from a municipality or mayoralty. The lesson therefore, is that proper constitution-making requires us to mind our language.

Additionally and most importantly, it is time for Nigeria to refrain from our odd and duplicitous tradition of affirmative action, known in our parlance as ‘federal character’. Everywhere you turn to in the Nigerian constitution, you will find references to our admirable commitment to ‘federal character’, often interpreted to mean the nation’s desire to balance power and opportunities amongst the majority tribes on the one hand, and then between them and the minorities on the other; or considerations to equality of the six geopolitical zones, the states, and our two major religions. Much as it is preposterous to suggest that we will ever have a perfect adherence to federal character, there are some glaring imbalances that must be urgently addressed if we are serious about Nigerian unity and prosperity. One that the senate must embrace as expedient is the popular desire by Nigerians (not just people of the South East) to create one more state in the South East. I say popular because the Mantu panel has already collected views from around the country demonstrating that an additional state for the South East is amongst the proposals that are expected to easily pass muster. Therefore, we, as a people committed to the ideals of federal character, fairness and unity of the nation should make bonafide efforts to avoid playing mean-spirited politics with this and bring closure to the feelings of alienation rampant in the South East on account of this imbalance. If something must give to get this done, then two more states could be created in the South East with one more for each of the other five geopolitical zones, but not more.

Therefore, as the senate goes into retreat to fix Nigeria’s constitution, our senators need to prove the statesmen they are by giving Nigerians the sort of amendments that will be in touch with the popular will of Nigerian citizens, in comportment with well-reasoned Supreme Court rulings, and above all, emulates the fundamental elements of federalism that are known to have worked for more experienced nations in like circumstances.

Orji Uzor Kalu is former Governor of Abia State

IMPRESSIONS AND CONCLUSIONS FROM IWU’S RELEASE OF ELECTION REPORT IN AMERICA

By Jimmy Osifo, Virginia Beach USA josifo@yahoo.com

After reading some essays posted to the internet on the subject of Maurice Iwu’s recent trip to America to release the report of the 2007 general elections, I decided to also write my own impressions and conclusions based on my personal and first hand observations of how the two events turned out. The first event was the one in downtown Washington DC in the morning, and the second was at the Nigerian Embassy in Northwest Washington DC that commenced in the evening and ended quite late at night. Present at the morning event at the Press Club in Washington DC and known or introduced to me were: Banjo (who ran for Governorship in one of the Southwestern States under NCP); Harris Ugo Ukandu (a public policy analyst based in Washington DC); Ambassador Usman Baraya (acting Nigerian envoy to the United States); Colonel Bello Fadille (who I was told is INEC legal adviser or something of that nature); Dr. Amanze Obi (of the SUN editorial team); Sunny Ofili (who moderated); Andy Ezeani of INEC (who also moderated); Derrick Edwards (a white American who represented some pro-democracy think-thank based in the US); Dr. Tamuno Jonathan (a research scholar out somewhere in the Washington DC area); one Mamman (whom I believe to be a Professor out in Arkansas, USA); Robert Ngwu (President? of NIDO); Professor Mobolaji Aluko (of Howard University, Washington DC); Sam Uwandu (a former gubernatorial candidate of PDP in Imo State); a delegation of Nigerian Lawyers in the US led by Aloy Ejimakor (of The Law Group, Washington DC); Dr. Don Uzoma; Dr. Stanley Onye and the Nigerian Defense Attaché (these last two I noticed at the evening event at the Embassy); and a host of others numbering about ninety-five, by my rough headcount. I noticed that Igbos of the South East were in slight majority both at the US National Press Club and Nigerian Embassy events but this did not surprise me because by credible US estimates, Igbos alone (including those borne in the US) may top 2 million out of the odd 3 million Nigerians living in America. So, in every official function in America open to all Nigerians, Igbos always dominate by their numbers and professional stature and they are quite a vociferous and gutsy bunch – something that intimidates some non-Igbos in the US, but not including me, maybe because of my mixed minority origins. But it appears from an article by Prof Aluko published on the Web that the majority Igbo presence at the event might have intimidated some non-Igbos to the point that blinding one or two persons to a more dispassionate view of how the events panned out.

Let me begin my account with the Guest of Honor, Professor Maurice Iwu. I must confess that I came to the event that day prepared to disbelieve him, but when I heard the man speak and read portions of his preface in the Election Report, I had sort of a baptism of fire. The man had cold facts and figures to back up his claims of an attempt by some political types to stop the election, and that made me wonder why I had not figured this out before now even when most of the information Iwu reeled out has been in plain view all along. I found further comfort with Iwu’s version of events when I noticed a telling pattern on the part of two or three folks who attempted to join issues with him. The first was the guy from out Southwestern Nigeria who did not know the name of his Electoral Commissioner, and he claimed have ran under a party most Nigerians present (including me) never even know existed. The guy reminded me of Lyndon LaRouche (the perennial presidential candidate) running for President of America every election and then claiming that the Democrats or Republicans rigged him out; the second was Mobolaji Aluko, who appeared driven by some personal passions to take Iwu on; and the third is the former senatorial candidate from Abia who did not know his constituency well enough to figure that actual polling was done manually and not electronically. I don’t remember his party platform, except that I am certain it is not one of the major four major parties we have for now in Nigeria. And for this reason, he too reminded me of LaRouche and his fringe political party.

Next is something I read on the Internet (culled from Nigerian Tribune) to the effect that Iwu had garnered the valuable endorsement of Nigerian Lawyers in Diaspora. That is true. I noticed that a lot of lawyers were in attendance both at the morning and evening events and that told me that they probably quickly organized as a group to attend and see things for themselves as a basis to form an opinion based on facts. And I have also noticed from previous press clippings that these lawyers have lately taken up the matter of rising to the defense of Nigeria’s image abroad. So, rather than questioning their integrity as Professor Aluko alone tried to do in his article, I think anybody that loves our country and wishes her well should praise the Lawyers’ efforts or simply let them be for merely exercising their right of airing their opinion on a public policy matter that concerns them as Nigerians. Any number of Nigerians – professionals or artisans alike can convene as a group to take a position on any issue of public discourse concerning Nigeria without having to deal with some misguided mean-spirited personal attacks. It is called the right to peaceable assembly and free speech, and thankfully both the US and Nigerian Constitutions guarantee those rights as fundamental. I also gathered that other Nigerians in Diaspora, apart from the lawyers have organized as a group to endorse the INEC report and may have already come out with a position in support of the growing notion that Iwu bears no ‘personal’ culpability for any problems that might have been encountered during the elections.

In fact, I admired Iwu the more for giving those that he knew will always attack him the opportunity to even get close to an environment that was completely under his control. If he wanted, he could have used his contacts in the US to filter out opposition elements and redline them from attending the events so that he gets to look good. So, it says a lot about the fine and steely character of a man who strives to find some accommodation for those he very well knew to openly hostile to his person and office. Thus, I considered it an honor when Iwu made the point that everyone should be allowed to speak even when it was clear that one or two persons might seize on the opportunity to challenge him needlessly. I say this because other Nigerian officials are known to be averse to such generous access when they come to America and a frustrated Nigerian Diaspora have had to be content with less than an eye contact from afar. Suffice it to say therefore that after observing the two events and perusing the Election Report, I reached certain conclusions, which are:

One - Professor Maurice Iwu’s press briefings should continue because through them Nigerians both at home and in the Diaspora are becoming more informed about what happened before, during and after the elections from someone in authority with firsthand information. Two – the report by the EU observer Group (or whatever) is not credible because it is plausible that Iwu annoyed them by refusing their money, denying them presence at INEC’s meeting, and above all rejecting their illegal request for the biometrics (including fingerprints) of over 60 million Nigerians, apart from the glaring fact that their report on the 2007 elections seemed to be a self-plagiarism of the same thing they had said in 2003 both in terms of choice of words and general assessments.

Three – Iwu should be praised for his courage for standing up to the several interests and institutional difficulties hostile to the conduct of the presidential elections, and it was this singular act of courage that assured Nigeria her first civilian to civilian transition in history. Four – Nigeria should never take any grants from any foreign government to conduct our elections because those grants come with conditionalities that breach our national security and make us seem like a self-disrespecting ‘banana republic’ (to borrow Iwu’s words) and Nigeria is not too poor to provide the relatively low funding required for her national elections.

Five – as the local government elections (NOT being conducted by Iwu) demonstrate, the problem of elections in Nigeria and amongst Nigerians is a cultural thing with Nigerians everywhere (including us in the United States). Prof Aluko himself confirmed this when he said in his article that Robert Ngwu and Ola Kassim were fighting over headship of NIDO – in America. Even amongst Nigerian town unions in America, Nigerians take each other to court over who becomes Chairman of something as civic and little as a branch of a town union. Iwu has shown the way out because he seems to possess the strong character and fitness Nigeria needs in a federal electoral umpire. It follows therefore that Nigeria needs to adopt a new system of permanent tenure for Chairmanship of INEC - like Ghana and other countries which have done so with much success. This is the only fair way to retain the skills of those like Iwu who represents the best chance at giving Nigeria an election that leads to something (not one that gets annulled or stopped midstream – like in 1993, which was acknowledged as free and fair but it produced no transition). Six – Iwu is right that most parties and candidates lost because they didn’t have the requisite numbers to win elections, and those that won did so for the opposite reason. Contrary to submissions in opposite, this is an issue appropriate for comments by Professor Iwu because he meant to serve a note of warning to parties to be better prepared next time around or merge with other parties that have proved stronger.

Seven – a lot of folks are attacking Iwu because of their personal frustrations with his tenure as INEC Chair - it is either they could not compromise him or prevent the elections from holding or that they had some personal spats with him. Eight – why did the first aircraft dispatched to convey our ballots suddenly develop no-wings and failed to fly back our presidential ballots from South Africa five days to the presidential election? Who instigated such a stunt that threatened Nigeria’s national security and nearly scuttled our nascent democracy? Who would have benefited from a forced and sudden postponement of the presidential election had Iwu not surmounted this hurdle by quickly engaging another aircraft to fly back the ballots? Who knew what, and when did they know it? These are pertinent questions that I have never seen asked by this isolated bunch of Iwu-bashers. Nine – Orji Kalu of PPA deserves respect and honor from all Nigerians for helping stabilize Nigeria at a critical time by joining President Yar’Adua’s government of national unity, and that should be a reference point that should encourage others still in the trenches to call a truce.

And finally, Iwu’s tenure as INEC Chair expires in 2010. People should refrain from pressuring President Yar’Adua to court danger to his fragile tenure and that of all elected state and federal officials by forcing Iwu’s resignation; and Yar’Adua needs Iwu as the third anchor to Nigeria’s tripod balance, and the man is competent to boot. In terms of access to the levers of federal power, Maurice Iwu is the most powerful Igboman in Nigeria today. It could have been Orji Kalu but the guy is not in government, and that alone made the difference. So, I advise Igbos not to fall ‘mugu’ to any suggestions to join in ousting Iwu because once Iwu goes, his replacement is least likely to be Igbo and that will create an official vacuum. Needless to say that Igbos should by now be well aware of the gloating that trailed the rapid fall of three Igbo senate presidents and the damage it did to their psyche as major players in the contest for federal power. Yorubas say: “Yoruba Ronu” (Yorubas Think). I say “Igbo Ronu” (Igbos Think). And peace to Nigeria.

Jimmy Osifo wrote in from Virginia Beach, USA. josifo@yahoo.com

2007 NIGERIAN GENERAL ELECTIONS: THE EU OBERVER REPORT IS NOT GOSPEL

By: Ibrahim Danlami, College Park, USA ibrahimdanlami@yahoo.com

This piece is intended as a sequel to the many essays on Professor Maurice Iwu’s conduct of Nigeria’s 2007 general election and the condemnations that trailed the wake of the damning assessment turned in by the EU Observer Mission. There are now new twists and turns following Maurice Iwu’s formal presentation of the official Election Report to the Nigerian Diaspora in London and Washington. And silence is no longer golden because Nigeria is hurting from an unrelenting barrage of vigorous attacks from all manners of people nearly nine months after the elections. So, as a native Nigerian, I will be damned if I should just continue to remain silent about what happens to my native country, her institutions and public officials, and the drag it imposes on Nigeria’s quest for a befitting diplomatic stature, good order and foreign investments

While Maurice Iwu was making his presentations at the Press Club and the Chancery, my mind wandered off to the greater irregularities present in Nigeria’s ongoing local government elections (being conducted locally, and not by Maurice Iwu and INEC). And I am not alone in this line of thought because following release of the Report, the vast majority of Nigerian Diaspora has now rallied to the defense of Maurice Iwu and INEC. This can be seen from the many essays/reports written by those who were present at the two separate events in Washington DC where Professor Iwu made his presentations, if not the endorsements coming from some Diaspora professional groups. I was at both events but I deliberately preferred to keep quiet and remain as low-key as possible so I can better concentrate on the important task of either confirming or recanting what I already gleaned from prior research. I wanted my take to be swayed by hard facts and realism, and not by idealisms or other passions that have no place in what the 2007 elections meant for my native country. The Nigerian Diaspora position on this matter is important because it represents a critical gateway to a better measuring of what Nigerians everywhere think of the conduct of the election. In other words, if Nigerians themselves accept the election outcome, warts and all, that alone may be grounds for the international community to look less to the grim report turned in by the EU Observer Mission, bearing in mind two twin sets of facts: One - Nigeria’s teething pains with her elections are less of the making of Maurice Iwu or one man alone but more of an institutional immaturity on the part of Nigeria as a young, and an inexperienced democracy. Two - The cultural tendency to never-say-die on the part of Nigerians in contest for any office (political or civic, home-based or Diasporan) which often drives the loser to exaggerate any irregularities occurring in the ordinary course of subjecting elections to human discretion.

Now consider Maurice Iwu’s allegations that the EU observers turned monitors or worse by demanding a free pass to attend INEC meetings (as if Nigeria is already a failed state); and even had the alacrity to demand for their keeps the entire body of sensitive data containing the biometrics of Nigeria’s registered voters including, as Maurice Iwu put it, “the fingerprints of the President of my country”, apparently because they offered 40 million Euros as grants-in-aid to INEC. Now, I don’t know about my fellow Nigerian Diaspora in the West but one thing I know for certain is that in America where I have lived for years, a whole army of irate citizens will go to any length to reject any plan by the government (not to talk of a quasi-government unit like election observers) to compile and archive their biometrics without a compelling public interest such as part of a narrowly-tailored national security strategy to overcome a portent threat like terrorism. Even so, we in America are witnesses (and participants) to the robust challenge by citizens against somewhat similarly intrusive portions of the US Patriotic Act – an idea that was blamed on Attorney-General Ashcroft and which might have contributed to his fall. This instinctive citizen resistance to such intrusions stems from the recent dramatic rise in identity thefts, if not the suspicion that the government or other custodian thereof will someday misuse the data to the detriment of innocent citizens. But to me, the more troubling question is whether Americans or Europeans will turn over the biometrics of their citizens (including President Bush’s fingerprints) to a bunch of snoopy Nigerians or Africans running around US and Europe in the name of being observers at elections that don’t impact them directly. So, are Nigerians being told by the EU (or observers who claimed to be fronting for EU) to turn over their biometrics because Nigeria is Third-World or is it because the 40 million Euros in grants-in-aid constitute sufficient inducement and consideration for a nation possessing nearly 50 billion dollars (and counting) in reserves? Or has Nigeria suddenly lost her sovereign rights to a national security interest in guarding the private and sensitive information of her citizens, including the nation’s leaders? So, Maurice Iwu was right to have feared that the 40 million Euros was not mere freebies but carried the prospects of strings and diplomatic disrespect that a modern, strong and prosperous Nigeria does not need any longer. And he had good cause to worry that more unconscionable demands could have come had he not drawn the line. Therefore, it goes without saying that it was for this reason alone that a hostile environment existed throughout the election period between the EU Observers and Maurice Iwu/INEC. Recall that the EU called Iwu arrogant first before some Nigerians began to do the same.

And then enter the damning EU Observer Report, and to my utter surprise, I discovered that their 2007 report is almost a verbatim repetition of their 2003 report and I wondered why. I also noticed that the EU report is replete with dodgy disclaimers – meaning that the Observers are sort of eating their own words and generally appeared wishy-washy on an assessment they intended the whole world to believe as gospel. Well, if the Observers who wrote the report appear to be evasive or reluctant to own up to it, why should anybody, including Nigerians ground their assessment of the 2007 elections on the tenors of a report that is so notoriously self-disclaiming? I wager that it is plausible that since Maurice Iwu pissed them off, they were more likely to get back at him by turning in a report that is less of an objective assessment but more of a fall-out of a bitter personal disagreement they had with him. Additionally, the EU observers were too few in number to traverse the huge land mass of Nigeria and tens of thousands of polling precincts and wards, most of where the conduct of the election was widely acknowledged by Nigerians to have been free and fair. Had the observers covered all the polling centres, they would have confirmed that most political parties and their candidates lost primarily because they lacked in any of the factors or elements necessary for succeeding in national elections, and prevailed in their traditional strongholds.

For most of the West, especially the European Union, there is this rampant tendency to rush to conclusions that elections held in countries that the West fears, loathes or does not understand are never free and fair. The West does not loathe or fear Nigeria but it is well-known that it does not yet fully understand Nigeria and the unique cultural burdens that continue to stalk her fledgling Western-style democracy. The high standard set by the West for elections to be credible is fine and laudable, but pressuring young democracies and a people who have endured decades of autocracy to embrace them overnight is unrealistic and unfair to boot. It gets to a point that creates the appearance of pandering to opposition elements and a disregard for the nation’s sovereignty. This brings me to the recent elections held in Russia which saw Putin’s party winning with super majorities. But guess what? The same EU observers also saw red and irregularities in that election. But I suspect that the real truth lies somewhere in between the West’s traditional distrust of a nuclear-powered Russia led by a non-aligned Putin and a persisting misunderstanding of a post-Soviet Russia that is still learning the ropes of representative democracy, if not some petulance over the failed Western capitalist quest to be the major player in exploiting Russia’s huge deposits of natural gas and other hydro-carbons, which has been blamed on Putin. As for Nigeria, if you don’t know by now that the West considers candidate Abubakar Atiku pro-West and President Yar’Adua a closet anti-West or too Islamist (and frugal, meaning - a radical socialist that may prefer China), then you have not been reading everything out there. And more to the point, Yar’Adua’s fiscal conservatism in Katsina when he was Governor was mis-characterized as neo-socialist by a West that looked forward to an Atiku they believed through his PR spin in the US to be anti-socialist and thus more representative of any capitalist desire for a President likely to draw down Nigeria’s hard currency reserves to finance high technology acquisitions from the West. This is plain fact that must detract from the overall credibility of the EU Observer Report of an election in which a not-well-liked ‘radical/socialist’ Yar’Adua emerged victorious. Buhari is not really in the West’s serious reckoning because of his poor human rights record when he was military ruler, and Orji Kalu was seen to be too sophisticated and pan-Nigerian to be trusted to deliver on a strictly pro-Western capitalist agenda. And so it came to pass that in giving primacy to these calculations, the EU sadly ignored how dicey and arduous it was for Maurice Iwu and INEC to transit Nigeria from one civilian regime to another for the first time in the history of the country amidst all the duplicity and grand intrigues that were in plain view.

Finally, I disagree with those opposed to Maurice Iwu’s release of the INEC Report and his aggressive engagement of his tormentors. By making the report public, Nigerians and the world are now better informed about the nation’s electoral difficulties than ever before. That makes for better reforms and less tendency to lay blames at the wrong places. And while the issue is still hot, it will be nice to see some fireworks from the Presidency. In Washington, Professor Iwu declared, and I quote “You cannot keep the baby and throw away his mother” (translation: ‘The President cannot expect his presidency to still remain legitimate by not defending the process that brought it into being’ or ‘President Yar’Adua will call his mandate into question once he succumbs to calls for Maurice Iwu’s ouster’). I agree.

Therefore, President Yar’Adua should go heads-up now and show some verve in deflecting some of the darts being hauled at Maurice Iwu, INEC and Nigeria – coming mostly from fringe angles and interests that either don’t wish Nigeria well or don’t know any better. For the President to suggest that he will go back to his native Katsina if he loses at the election tribunal hardly helps; and if it is some sort of political rope-a-dope, it is not working at all, as it gives the appearance of disinterest or timidity and stokes the notion of a temporary presidency and possible anarchy. It also emboldens those challenging his election and complicates every diplomatic effort to bring matters to some closure. Others who can step up to the plate are the hundreds of National/State Assembly members and all the Governors who are enjoying mandates made possible by a complex transition eked out primarily on the resilience of majority of Nigerian masses that have proved more willing to accept the election outcome, if not a gutsy Maurice Iwu who accomplished what the Nigerian army - with all their coercive force and autocratic control of federal power could not do in 1993 when they failed to deliver a transition Nigerians so much desired at that time.

Ibrahim Danlami, College Park USA. ibrahimdanlami@yahoo.com.