The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
As usual, last week was rather interesting in the Nigerian scheme of things. The parties, that is, the various Petitioners and Respondents in the Presidential election petitions adopted their final written addresses at the Presidential Election Petition Tribunal (PEPT), and the matters have been reserved for judgement; the second partly uninspiring list of Ministerial nominees (except for a few) was forwarded to the Senate for further action, and so was President Bola Tinubu’s letter to the Senate seeking for support for military intervention in the Republic of Niger.
Some Elements of a Good Judgement
As far as the petitions are concerned, with all the ‘hullabaloo’ about them, it is the wish of Nigerians that the PEPT does substantial justice to them. By virtue of Section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution). the PEPT must deliver its judgement within 180 days from the date of the filing of the petition, which means that judgement must be delivered by the fourth week of September, 2023.
The most important element of a good judgement, is that it is a correct judgement based on the law and facts. See the case of Mbani v Bosi & Ors (2006) LPELR-1853(SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN). The issues must be distilled, evidence adduced properly evaluated, clear findings of facts made, and the law properly applied to arrive at the correct conclusion. This aspect is more important, than even the writing style of the Judge. Any Judge worth his or her salt. would want to avoid a situation where their decision is overturned by a higher court for being ‘per incuriam’, that is, when a decision is reached without due regard to the law and facts, or where an erroneous judgement is handed down, or such judgement is unjust, or occasions a miscarriage of justice. See the case of NEPA v Ososanya 2004 5 N.W.L.R. Part 867 Page 601 at 624. While the principle of ‘stare decisis’ must be adhered to, the trial Judge must stay away from bad precedent. The issue of deciding cases based on public policy which is usually equated with public good, will only be permissible if such decision is in line with the rules, law and procedure that governs a matter. In Sonnar (Nigeria) Ktd & Anor v Partenreedri M.S. Nordwind Owners of the Ship M.V. Nordwind & Anor (1987) LPELR-3494(SC) per Kayode Eso, JSC, the Supreme Court held inter alia that a Judge cannot seek sanctuary for his decision wholly on public policy, as “to rely on public policy or public good simpliciter, is to give room to uncertainty in the law”.
The reasoning behind a judgement, must be clear and coherent, and a judgement must shy away from being based on technicalities. In Ikpeazu v Otti 2015 18 N.W.L.R. Part 1490 Page 47 at 71-72 the Court of Appeal held thus: “In all election matters, the use of technicalities merely helps to shut issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities, that tend to leave the litigants more confused”. I would also add that, technical justice not just only leaves the litigants confused, but usually deprives that whom justice belongs to, of it.
The PEPT must refrain from handing down any decisions that focus on mere unsubstantial technicalities, that is, technicalities which have no bearing on the substance of the case. The question which a trial Judge should always keep in mind is whether, based on the facts of the case, a miscarriage of justice will occur if any existing technicality is ignored or taken as a mere irregularity, and judgement is still handed down based on the merits of the case. In Akpan v Bob 2010 17 N.W.L.R. Part 1223 Page 421 the Supreme Court held inter alia that: “Technical justice is no justice at all, and a court of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned….Where the facts are glaringly clear, the courts should ignore mere technicalities, in order to do substantial justice”. Also see the case of Okafor v Nweke 2007 10 N.W.L.R. Part 1043 Page 521. We trust that the PEPT will bear these guiding principles in mind, in doing justice to the petitions.
Second List of Ministerial Nominees
The fact that Section 147(5) of the Constitution provides that a person who is appointed as a Minister of the Government of the Federation must be one qualified for election as Member of the House of Representatives, certainly doesn’t mean that this bare minimum baseline should then be used as the authority for the Senate to ask Ministerial nominees who have been members of the National Assembly (NASS) or others, to just take a bow and go, instead of screening them.
Sections 65 & 66 of the Constitution which provide for Qualification and Disqualification for Membership of the House of Representatives, has absolutely nothing to do with ability and capacity. It is simply the attestation to the fact that you are a Nigerian citizen, at least 25 years of age, have a School Certificate or its equivalent, a bit of a character reference and the like. See the case of Ardo v Nyako & Ors (2014) LPELR-22878(SC) per Kumai Bayang Aka’ahs, JSC.
It is bad enough that Ministers are being screened without their portfolios, let alone some being allowed to waltz in and out of the Senate to share jokes and take a bow in the name of ‘screening’. On my side, I am vehemently advocating that the 10th National Assembly amend Section 147 of the Constitution, to provide that all Ministerial nominees of the President must have their portfolios attached to them, before they can seek Senate confirmation. An informed test of knowledge can then be given to the nominees by the general house, and possibly the Senate Committees covering their portfolios.
Nigeria is in an extremely precarious position, and my impression of President Bola Tinubu, is one of a person who wants to rebuild this shattered country and leave a good and lasting legacy. Therefore, I don’t think that at this point in time of our trajectory, governance should be about trial and error, or anything other than superior performance, qualities that some people on the second ministerial nominees list certainty do not have. If old hands are to be recycled, their past performances are there for all to see. Nominating for example, a Governor who did nothing in his State during his tenure, is not just bizarre, but a recipe for failure, and one wonders why, considering the fact that the technocrats who were nominated, were selected because they have distinguished themselves in their fields of endeavour. It should be those who have performed outstandingly that could be recycled, if at all, and not those who failed so woefully, that they were even rejected by their people, that should be foisted on the country as Ministers.
Discrimination in Different Forms
I reiterate the fact that the headship of government agencies should be fairly distributed in accordance to Federal Character, Ability and Gender Parity. EFCC and NNPCL for instance, which are both famous for being Northern Region liaison offices, must be transformed into pan-Nigerian organisations. Ditto for those agencies that may be Yoruba or Igbo dominated headquarters. The EFCC has never been headed by a non-Northerner. I have come across a few people in one of these two establishments who are excellent at their jobs, but have been kept on the same level for over 10 years, passed over for promotion, while outsiders were brought to be their seniors, simply because they don’t hail from the favoured regions. This is discriminatory, contrary to Section 42(1)(a) of the Constitution. It is time for a change.
We had hoped that the number of Female nominees would be increased in the second list, so that there would be at least 15 women; but, out of over 40 Ministerial nominees, only two more were added, to make a total of 9 Female nominees. This is disappointing, and also highly discriminatory. The weekly Federal Executive Council Meeting, will resemble that of Boys Scouts. How sad!
It is our hope that, going forward, women will be brought to head crucial government agencies. For example, the most senior officer in active service in the DSS who rose through the ranks, well trained and experienced, is apparently a lady who retired last year (I did some research). The current DSS Director General, is the only person who is senior to her. If Lawal Daura who was allegedly sacked for wrongdoing, was subsequently returned to DSS by President Buhari, why can’t a lady who knows her onions and retired in good stead, be recycled? Even closer to home, our own Nigerian Law School – the highest ranking, longest serving Lecturer, and Director of the Lagos Campus at the time a new DG of Law School was chosen in 2017, also a female, was passed over for the position. It is time for this administration, to correct some of these injustices.
Military Intervention in the Republic of Niger
Section 5(4)(b) of the Constitution empowers the President, with the prior approval of the Senate, to deploy the Armed Forces on combat duty outside Nigeria. Obviously, this is the reason for President Tinubu’s letter to the Senate, because when the military arm of ECOWAS (initially known as ECOMOG) deploys troops, member countries contribute their soldiers to form the army. In 2017, when ECOWAS deployed troops to the Gambia to force out Yahya Jammeh who refused to handover to Mr Barrow who won the election, though the mission lasted four years, the military intervention ensured that the necessary transition occurred within three days and Mr Barrow was sworn in as President.
I believe that the issue of Niger, must be viewed in several ways. Most of the people who have criticised President Tinubu and ECOWAS on their stand, may be ignoring the fact that there are always two sides to a story. Whilst undoubtedly, Nigeria is the strong regional power of West Africa, and it is good that we have made it known that we are not in support of coup d’états, I believe that combat should be the last resort, after exhausting all the available means of diplomacy and mediation. It is undeniable that the high level Nigerian team chosen by President Tinubu to go to Niger, is a sound team – two seasoned soldiers and a diplomat, that is, His Eminence, the Sultan of Sokoto, His Excellency, General Triple A and Ambassador Kingibe, and they must not relent in trying to restore democracy to Niger.
However, a pertinent question is, who will bear the cost of the outing in case of an invasion of Niger? Has Nigeria recovered from the financial burdens of Liberia and Sierra Leone, in which Nigeria bore most of the cost of those two military interventions? Unless of course, foreign powers who are against the coup or the UN will be footing the bill, many don’t seem to be in support of a country that is in as bad financial shape as ours, spearheading this kind of campaign bearing in mind that Nigeria is probably the main source of funds for ECOWAS, and may have to bear most of the cost of any military intervention in Niger. We are still arguing about palliatives for our people, because of the removal of the fuel subsidy; impending strike action by Labour, because of the demand for increase in the minimum wage, to mention a few of our financial problems; undertaking an expensive military outing at this time, unless it is proven that the coup in Niger poses imminent danger to Nigeria, may be seen as imprudent.
Another side to the argument which may be of equal concern, is that the militarisation of these contiguous countries in the Sahel region, not only poses a threat to democracy in West Africa, but more so neighbouring countries like Nigeria, and therefore, we shouldn’t be shortsighted and do nothing, living in a fool’s paradise that we are not in any immediate danger. Russia for one’s interest in Africa, can be seen from the utterances of the Russian Mercenary Outfit, the Wagner Group. Niger is the richest in Africa, in the highest-grade Uranium, and Niger has accused France, its colonial master, of paying next to nothing for their Uranium. Countries like Russia and other nuclear powers like China, North Korea, require that Uranium for their nuclear programmes. Since the Western countries don’t support the coup in Niger, and the Niger Military will definitely require arms, this will give a country like Russia a perfect means of entry into West Africa, by supplying Niger arms and lending them their support, in exchange for Uranium. This may prove dangerous to Nigeria, and her porous borders, especially where we are already being ravaged by Boko Haram and bandits, because some of these arms will definitely fall into their wrong hands, and will be used against the Nigerian State. The bottom line is that, having an unpredictable military government right next door to your already unstable territory, is a bad combination. Even if the Nigerian Army isn’t interested in coup plotting, who is to say that insurgents and bandits, wouldn’t be interested in same?
ECOWAS may have already taken account of these complications and many more which may be unknown to the general public, hence, ECOWAS’ position in this matter, which is actually more complex than it looks. Is a quick military intervention by ECOWAS therefore, required in Niger to restore democracy, not just to stem the tide or ill-wind of military coups in West Africa, or so that things don’t spiral out of control? What will be the effect of war, on our own people who reside in close proximity to Niger, or to Nigerians as a whole?
Conclusion
Many believe that, Diplomacy is still the best option – the avoidance of any military outing, and the restoration of democracy. The Senate shares this view, and has rejected any military intervention by Nigeria. We however, hope it all works out, for the good of Nigeria. But, for sure, majority do not want to return to the military days, where our fundamental rights were non-existent.
