Aloy Ejimakor is a Nigerian jurist based in the United States. He is the President of Nigerian Patriots in Diaspora (NPID) and also of Organisation of Nigerian Lawyers in Diaspora (ONLID). He traveled to Nigeria recently and granted an interview to members of the Press. Below is the text of the interview
As a lawyer and President of the Organization of Nigerian Lawyers in Diaspora (ONLID), what are your views on the recent call by the NBA, following the Ekiti case, for removal of Professor Maurice Iwu of INEC?
I don’t think it is appropriate for a hardcore, federally-chartered professional association to involve itself in passing the buck over the much overplayed shortcomings of the 2007 election. If such were the case, the Nigerian Medical Association, the Nigerian Society of Engineers, Pharmaceutical Society of Nigeria and all other professional associations might as well jettison all decorum and jump into taking sides in what has become an object of vicious power play between duplicitous politicians. Appointing or firing of INEC Chair is also a political (not judicial) item, clearly reserved for the pleasure of the President and consent of the Senate. And INEC is not a judicial body with some nexus to the NBA. So, what’s the beef with the NBA? That Maurice Iwu will continue as INEC Chair for now and even beyond his tenure after June 2010 is strictly a ‘political question’, not a juridical one and must thus be determined by whether the President decides to capitulate to the designs of the opposition or remain firm in exercising his sound political discretions in not wagging the dog. That is besides the Senate which is, by the constitution, required to find serious cause before confirming such removal. Where is the immediate cause or misconduct the constitution required? For starters, the NBA must advance proof that Professor Iwu pre-meditated some change in ink color in Ekiti for the sole purpose of disadvantaging the AC. If nullification of a result declared by INEC is a misconduct for which an INEC Chair shall be fired, the framers of our constitution would have said so. I suppose the same thing said for the NBA is also applicable to the NLC, in addition to the fact that NLC should be taken even less seriously because of its open romance with the Labour Party and the AC.
And there is more: The NBA ought to have known that the color of ink to be used is expressly within the sole discretion of INEC; and that it was by an INEC internal procedure that a certain color was brought in ordinary use. In other words, it was neither required by statute, nor by other mandatory federal regulation having the force of law. But since the Court of Appeals is the final authority on the Ekiti matter, it is now left to society to wonder whether a higher court would have upheld or remanded the Ekiti case on further appeal. We must not pretend that our courts are suddenly infallible when it comes to nullifying election results declared by INEC. Now let us consider this question: Is it reasonable for NBA to hold Maurice Iwu strictly liable for a spontaneous and innocent decision of INEC ad-hoc field officers to switch to another ink color? And to the point of calling for Iwu’s sack over this petty matter? Is the NBA saying that Professor Iwu, by some telepathy from his Abuja office, divined the change of ink color in order to advantage the prevailing candidate? And since the Court of Appeals did not explain how the in-field change of ink color constituted ‘substantial non-compliance’, can NBA now explain it to Nigerians and also demonstrate the fraudulent intent attributable to Iwu that may justify his removal. This is not to say that Iwu can be removed on grounds of failing to use the right ink color or even for any finding of ‘substantial non-compliance’. The constitution clearly provides that the INEC Chair can only be removed for ‘misconduct’, not for getting ink colors wrong. Pray, if every result INEC declared is supposed to stand or upheld for peace to reign, why did the founding fathers of our constitution create election tribunals? Why didn’t the founding fathers simply provide that: “We hereby enact that for every election nullified, ‘Iwu Must Go’”? Why is the NBA not calling for the firing of every judge or justice whose decision is overturned by a higher court? This is bait and switch, smoking mirrors, warts and all.
Further, this thing about NBA always taking on the government of the day and institutions that determine the rules of devolution of political power in Nigeria is assuming such a dimension that is fast rising to the level of overawing government and intimidating its high officials. I suspect that the real target of the NBA is not Professor Iwu but a President Yar’Adua that continues to be seen by fringe ranks of the NBA as a sitting duck and a disagreeable Obasanjo imposition. This is part of the reason some credible Nigerians have charged that the NBA, as presently led, appears to be fronting for the opposition and disaffected politicians within the ruling party. Despite Ekiti and others like it, it appears that NBA was suckered in by elements of the opposition and scheming PDP apparatchiks looking to make hay and supplant Yar’Adua in 2011, including an Atiku who continues to see Professor Iwu as the sole obstacle to his evident ambitions to becoming President in 2011, perhaps on the indecent assumption that the President might be too ill to run or worse. True or not, I would rather NBA curtail this unwise politicking and concentrate more on those fine, apolitical ideals that underpinned its founding, including law reforms; constitutional amendment, awaiting trials; discipline of lawyers; professional ethics; continuing legal education; and like lawyer-related pre-occupations.
How do you reconcile your views on INEC/Iwu with what the Supreme Court held in the case of Governor Amaechi of Rivers States?
In Amaechi versus Omehia, the issue before the court was a plain legal question, not the collateral equitable question that ultimately carried the day; and that has nothing to do with any irregularities attributable to INEC or Maurice Iwu. If at all, Amaechi’s issues had more to do with PDP’s struggles with internal party democracy and the inequities arising therefrom. As Chair of INEC, Professor Iwu is charged with abiding by the law, not over-reaching himself to act as a court of equity that must right every electoral injustice. INEC’s first instinct is to recognize only a candidate sponsored by a political party. The stretched equitable considerations that led to Omehia’s fall are strictly within the purview of superior courts, not an INEC that is a mere non-adjudicatory agency with the limited mandate of umpiring elections. So, to most legal analysts, Amaechi was poised to more likely prevail on the clear legal questions raised by his substitution and that any companion ruling was supposed to be restricted to an order for a fresh ballot that would now have Amaechi’s name on the ballot as the PDP candidate. The other issue, wholly equitable and unaddressed by the briefs before the court, was whether the votes cast for Omehia in the election could be held in equity to have been cast for Amaechi? That was the point where the Supreme Court turned activist and ‘equity-prone’ by departing from a pure court of law and looked to its equitable jurisdiction to issue that part of the ruling that awarded the governorship to Amaechi. The rationale offered by the court is so far unknown to Nigerian black letter law as presently enacted, but may be consistent with equitable principles underpinning our inherited tradition of common law. Let me explain. There is nothing in the Nigerian constitution or the Electoral Act – the two substantive laws by which electoral disputes are resolved - that expressly mandated that ‘where a substitution fails by court order, the victory garnered by the ‘interloper’ candidate shall be awarded to the candidate so wrongfully substituted’. The only situation where such victory could be legally awarded in accordance with some stretch of the law is one in which the wrong candidate was declared elected, such as in the case of Obi versus Ngige - in an inter-party contest, not intra-party. To be sure, what the law contemplated both in its express provisions and spirit was for a failed intra-party substitution to lead to new elections where the offended candidate will have the opportunity of standing as the candidate of the offending political party. The legislative history of our electoral laws and settled judicial precedents amply support this proposition. And the reason is simple. Nigeria has a political party system and our laws do not yet recognize independent candidates (like America) nor elections without vested candidates (like Britain). It therefore follows at universal logic that any vote cast in our elections is assumed at law to have been cast not only for the political party but also for the candidate. This means that the votes cast in the gubernatorial elections in Rivers State were not just for PDP standing alone but also for Omehia, as a natural person, who assumedly contributed to the victory at issue. Conversely, if Amaechi was never substituted, he could have lost the election, not as a consequence of any voter disdain for the PDP, but as a rejection of Amaechi – the natural person, not the candidate. Therefore, our electoral statute demands two broad requirements for validation of votes in an election. One is that there is a candidate (identifiable in his physical characteristics as an intelligent being, as opposed to a chicken or cow or even a tree); and the second, is that such candidate must be sponsored by a political party. In the case at bar, the intelligent being who met both requirements was Omehia, not Amaechi. In other words, the votes cast in the governorship elections can never be divisible (at law) or separated from Omehia, the physical person just as the same votes cannot be separated from PDP, the sponsoring party. Both of them – candidate and party, are joint owners of the votes or entitled to them by the entireties, analogous to being tenants by the entireties in real property law, in which case each tenancy or entitlement is inseparable in their entireties from one tenant or the other. Keep in mind that, as far as those votes are concerned, PDP and Omehia are more like Siamese twins. Therefore, without more, the judgment would have been unassailable had it simply ordered new elections with Amaechi as the new PDP candidate. The judgment courted controversy by going as far as declaring Amaechi the duly elected governor in an election that did not have his name on the ballot. So, the objections raised by those criticizing the judgment can be sustained on the plain construction of the black letter law. That some people still point to Amaechi’s case as another malpractice that counts against Professor Iwu goes to illustrate the gathering demerits of such postulations.
Coming from America, which adheres to rule of law, do you believe that President Yar’Adua is sincere with his policy of adherence to rule of law?
Yes, the President is sincere on all counts; and here is why: This is not the first time Nigerian leaders have expressed some commitment to rule of law. But this is the first time Nigerians have seen a credible and noticeable presidential effort geared to converting the doctrine from a mere populist slogan to a cultural revolution of sorts. The difference lies in the fact that previous attempts failed to take hold because they remained mere slogans, sadly lacking in any bonafide and concrete measures on the party of the government of the time to make it a way of life for Nigerians and our institutions. Today, President Yar’Adua seems to have departed from that tradition as amply demonstrated by some of his actions to date. Consider the President’s ram-rod reluctance to intermeddle in matters reserved to the judicature and the many other hot-button judicial issues of the day where the President left no one in doubt that he preferred to let matters play out within the settled procedural framework. In all of these situations, the President never pussy-footed and you don’t have to look far to notice the gathering diplomatic windfalls for Nigeria, coming from even the most cynical and hostile of nations. In America, Yar’Adua’s sincerity on rule of law has sunk in and is credited with an extraordinary degree of respect Nigeria is known to now enjoy at the highest levels of the US administration; and it is credited with the upsurge in direct foreign investments that are bound for Nigeria in recent times.
Ejimakor can be reached at alloylaw@yahoo.com
As a lawyer and President of the Organization of Nigerian Lawyers in Diaspora (ONLID), what are your views on the recent call by the NBA, following the Ekiti case, for removal of Professor Maurice Iwu of INEC?
I don’t think it is appropriate for a hardcore, federally-chartered professional association to involve itself in passing the buck over the much overplayed shortcomings of the 2007 election. If such were the case, the Nigerian Medical Association, the Nigerian Society of Engineers, Pharmaceutical Society of Nigeria and all other professional associations might as well jettison all decorum and jump into taking sides in what has become an object of vicious power play between duplicitous politicians. Appointing or firing of INEC Chair is also a political (not judicial) item, clearly reserved for the pleasure of the President and consent of the Senate. And INEC is not a judicial body with some nexus to the NBA. So, what’s the beef with the NBA? That Maurice Iwu will continue as INEC Chair for now and even beyond his tenure after June 2010 is strictly a ‘political question’, not a juridical one and must thus be determined by whether the President decides to capitulate to the designs of the opposition or remain firm in exercising his sound political discretions in not wagging the dog. That is besides the Senate which is, by the constitution, required to find serious cause before confirming such removal. Where is the immediate cause or misconduct the constitution required? For starters, the NBA must advance proof that Professor Iwu pre-meditated some change in ink color in Ekiti for the sole purpose of disadvantaging the AC. If nullification of a result declared by INEC is a misconduct for which an INEC Chair shall be fired, the framers of our constitution would have said so. I suppose the same thing said for the NBA is also applicable to the NLC, in addition to the fact that NLC should be taken even less seriously because of its open romance with the Labour Party and the AC.
And there is more: The NBA ought to have known that the color of ink to be used is expressly within the sole discretion of INEC; and that it was by an INEC internal procedure that a certain color was brought in ordinary use. In other words, it was neither required by statute, nor by other mandatory federal regulation having the force of law. But since the Court of Appeals is the final authority on the Ekiti matter, it is now left to society to wonder whether a higher court would have upheld or remanded the Ekiti case on further appeal. We must not pretend that our courts are suddenly infallible when it comes to nullifying election results declared by INEC. Now let us consider this question: Is it reasonable for NBA to hold Maurice Iwu strictly liable for a spontaneous and innocent decision of INEC ad-hoc field officers to switch to another ink color? And to the point of calling for Iwu’s sack over this petty matter? Is the NBA saying that Professor Iwu, by some telepathy from his Abuja office, divined the change of ink color in order to advantage the prevailing candidate? And since the Court of Appeals did not explain how the in-field change of ink color constituted ‘substantial non-compliance’, can NBA now explain it to Nigerians and also demonstrate the fraudulent intent attributable to Iwu that may justify his removal. This is not to say that Iwu can be removed on grounds of failing to use the right ink color or even for any finding of ‘substantial non-compliance’. The constitution clearly provides that the INEC Chair can only be removed for ‘misconduct’, not for getting ink colors wrong. Pray, if every result INEC declared is supposed to stand or upheld for peace to reign, why did the founding fathers of our constitution create election tribunals? Why didn’t the founding fathers simply provide that: “We hereby enact that for every election nullified, ‘Iwu Must Go’”? Why is the NBA not calling for the firing of every judge or justice whose decision is overturned by a higher court? This is bait and switch, smoking mirrors, warts and all.
Further, this thing about NBA always taking on the government of the day and institutions that determine the rules of devolution of political power in Nigeria is assuming such a dimension that is fast rising to the level of overawing government and intimidating its high officials. I suspect that the real target of the NBA is not Professor Iwu but a President Yar’Adua that continues to be seen by fringe ranks of the NBA as a sitting duck and a disagreeable Obasanjo imposition. This is part of the reason some credible Nigerians have charged that the NBA, as presently led, appears to be fronting for the opposition and disaffected politicians within the ruling party. Despite Ekiti and others like it, it appears that NBA was suckered in by elements of the opposition and scheming PDP apparatchiks looking to make hay and supplant Yar’Adua in 2011, including an Atiku who continues to see Professor Iwu as the sole obstacle to his evident ambitions to becoming President in 2011, perhaps on the indecent assumption that the President might be too ill to run or worse. True or not, I would rather NBA curtail this unwise politicking and concentrate more on those fine, apolitical ideals that underpinned its founding, including law reforms; constitutional amendment, awaiting trials; discipline of lawyers; professional ethics; continuing legal education; and like lawyer-related pre-occupations.
How do you reconcile your views on INEC/Iwu with what the Supreme Court held in the case of Governor Amaechi of Rivers States?
In Amaechi versus Omehia, the issue before the court was a plain legal question, not the collateral equitable question that ultimately carried the day; and that has nothing to do with any irregularities attributable to INEC or Maurice Iwu. If at all, Amaechi’s issues had more to do with PDP’s struggles with internal party democracy and the inequities arising therefrom. As Chair of INEC, Professor Iwu is charged with abiding by the law, not over-reaching himself to act as a court of equity that must right every electoral injustice. INEC’s first instinct is to recognize only a candidate sponsored by a political party. The stretched equitable considerations that led to Omehia’s fall are strictly within the purview of superior courts, not an INEC that is a mere non-adjudicatory agency with the limited mandate of umpiring elections. So, to most legal analysts, Amaechi was poised to more likely prevail on the clear legal questions raised by his substitution and that any companion ruling was supposed to be restricted to an order for a fresh ballot that would now have Amaechi’s name on the ballot as the PDP candidate. The other issue, wholly equitable and unaddressed by the briefs before the court, was whether the votes cast for Omehia in the election could be held in equity to have been cast for Amaechi? That was the point where the Supreme Court turned activist and ‘equity-prone’ by departing from a pure court of law and looked to its equitable jurisdiction to issue that part of the ruling that awarded the governorship to Amaechi. The rationale offered by the court is so far unknown to Nigerian black letter law as presently enacted, but may be consistent with equitable principles underpinning our inherited tradition of common law. Let me explain. There is nothing in the Nigerian constitution or the Electoral Act – the two substantive laws by which electoral disputes are resolved - that expressly mandated that ‘where a substitution fails by court order, the victory garnered by the ‘interloper’ candidate shall be awarded to the candidate so wrongfully substituted’. The only situation where such victory could be legally awarded in accordance with some stretch of the law is one in which the wrong candidate was declared elected, such as in the case of Obi versus Ngige - in an inter-party contest, not intra-party. To be sure, what the law contemplated both in its express provisions and spirit was for a failed intra-party substitution to lead to new elections where the offended candidate will have the opportunity of standing as the candidate of the offending political party. The legislative history of our electoral laws and settled judicial precedents amply support this proposition. And the reason is simple. Nigeria has a political party system and our laws do not yet recognize independent candidates (like America) nor elections without vested candidates (like Britain). It therefore follows at universal logic that any vote cast in our elections is assumed at law to have been cast not only for the political party but also for the candidate. This means that the votes cast in the gubernatorial elections in Rivers State were not just for PDP standing alone but also for Omehia, as a natural person, who assumedly contributed to the victory at issue. Conversely, if Amaechi was never substituted, he could have lost the election, not as a consequence of any voter disdain for the PDP, but as a rejection of Amaechi – the natural person, not the candidate. Therefore, our electoral statute demands two broad requirements for validation of votes in an election. One is that there is a candidate (identifiable in his physical characteristics as an intelligent being, as opposed to a chicken or cow or even a tree); and the second, is that such candidate must be sponsored by a political party. In the case at bar, the intelligent being who met both requirements was Omehia, not Amaechi. In other words, the votes cast in the governorship elections can never be divisible (at law) or separated from Omehia, the physical person just as the same votes cannot be separated from PDP, the sponsoring party. Both of them – candidate and party, are joint owners of the votes or entitled to them by the entireties, analogous to being tenants by the entireties in real property law, in which case each tenancy or entitlement is inseparable in their entireties from one tenant or the other. Keep in mind that, as far as those votes are concerned, PDP and Omehia are more like Siamese twins. Therefore, without more, the judgment would have been unassailable had it simply ordered new elections with Amaechi as the new PDP candidate. The judgment courted controversy by going as far as declaring Amaechi the duly elected governor in an election that did not have his name on the ballot. So, the objections raised by those criticizing the judgment can be sustained on the plain construction of the black letter law. That some people still point to Amaechi’s case as another malpractice that counts against Professor Iwu goes to illustrate the gathering demerits of such postulations.
Coming from America, which adheres to rule of law, do you believe that President Yar’Adua is sincere with his policy of adherence to rule of law?
Yes, the President is sincere on all counts; and here is why: This is not the first time Nigerian leaders have expressed some commitment to rule of law. But this is the first time Nigerians have seen a credible and noticeable presidential effort geared to converting the doctrine from a mere populist slogan to a cultural revolution of sorts. The difference lies in the fact that previous attempts failed to take hold because they remained mere slogans, sadly lacking in any bonafide and concrete measures on the party of the government of the time to make it a way of life for Nigerians and our institutions. Today, President Yar’Adua seems to have departed from that tradition as amply demonstrated by some of his actions to date. Consider the President’s ram-rod reluctance to intermeddle in matters reserved to the judicature and the many other hot-button judicial issues of the day where the President left no one in doubt that he preferred to let matters play out within the settled procedural framework. In all of these situations, the President never pussy-footed and you don’t have to look far to notice the gathering diplomatic windfalls for Nigeria, coming from even the most cynical and hostile of nations. In America, Yar’Adua’s sincerity on rule of law has sunk in and is credited with an extraordinary degree of respect Nigeria is known to now enjoy at the highest levels of the US administration; and it is credited with the upsurge in direct foreign investments that are bound for Nigeria in recent times.
Ejimakor can be reached at alloylaw@yahoo.com
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