‘BVAS Wasn’t Properly Tried, Before the Presidential Election’

Last Saturday, Nigerians went to the polls for the seventh time, to elect the next President and National Assembly Members, in what many have described as the most critical and controversial election that has held since 1999. Given the various challenges that Nigerians were contending with prior to the election –  particularly insecurity, fuel shortage, and Naira scarcity, some believed that the elections wouldn’t hold or would be postponed. But, despite all odds, the first leg of the elections held, albeit amidst some allegations of  electoral malpractices and rigging, pockets of thuggery and violence. Professor Chidi Odinkalu in a chat with Onikepo Braithwaite and Jude Igbanoi discusses the electoral exercise, its integrity, the likely challenges the next President may face, and matters concerning our nation’s Judiciary

What is your opinion about the current Naira redesign policy conundrum? Some argue that one of the main purposes of the policy, that is, to curb vote-buying, does not seem to have been achieved; that even the scarce new currency has been cornered by the politicians; and because of the non-availability of cash, the people are going through immense hardship, as they have no money for food and the basics, and are suffering too much anguish. The fact that the virtual banking platforms have also become epileptic, is not helping matters. Regarding the legal aspect, what is your interpretation of Section 20(3) of the CBN Act and your opinion of the legal proceedings so far? 

Thank you very much, for this encounter. You have posed too many questions, and I am not sure I can deal with all of them in one go, or that I am indeed, qualified to. 

You ask me to interpret Section 20(3) of the CBN Act. I am not a Judge. I am no longer even sure, I am qualified as a Lawyer. So, I will be pretending if I were to tell you that I could respond to that question competently, or at all. Thankfully, I don’t have to answer that question, because it is not necessary for me to. That is because the issue is not what the interpretation is of the CBN Act, but where you go to get that if it is needed. 

The point of this matter is that the Supreme Court’s original jurisdiction, is not meant for this matter. That belongs to the Federal High Court. The reason is very simple: to resolve that matter, you need the CBN as part of the proceedings, and you cannot sue the CBN before the Supreme Court in original jurisdiction. 

As for the hardships, that is self-evident and inexcusable. It seems clear now, that the politicians connived with the banks to corner the currency notes that were distributed. You have now seen the clips of the people attacked while distributing some of those notes to buy votes during these elections, or you have read of the people who were arrested for trafficking in or storing them. In Kaduna State, where the Governor led the charge against this thing, you must have read about a senior woman leader in his party’s leadership in the State, who was fraught with tens of millions of notes, right? So, there you go! 

Look, my problem with Emefiele as the CBN Governor is that he should have been relieved of his position, once he got into his dalliance with politics to seek the Presidency on the platform of a political party. At that point, he sacrificed the independence of the CBN, and he should have been let go. Instead, he was kept there. The way the Governors got involved in this matter, shows that their motive was politics not principle. They went to the Supreme Court to ask for an injunction, which is an equitable relief. The Supreme Court had enough grounds in equitable doctrines – not to speak of jurisdictional grounds or political questions doctrine – to throw the case out. That we are here is puzzling beyond measure. This is not about law. Don’t ask me what it is about, please. 

Nigeria is going through what some have labelled the most critical election in the nation’s history, given the deeply entrenched divisions and fault lines along, religious and ethnocentric interests. How, in your view should the new President navigate through the complex problem, to set up an acceptable cabinet? 

These elections are vital for both Nigeria’s cohesion, and for its place in and beyond West Africa. When the votes are finally in and all the related disputes resolved, the in-coming President will – almost certainly – be President of less than 50% of the votes cast. That will be a first in the annals of elections, since the return to elective government in 1999. It means, notionally, at least that the person will need to find ways to corral the rest of the country into their vision. It could be an opportunity. But, it will not be easy. This is why we need INEC’s results to be credible, so that it gives the person declared as winner the currency of both credibility and political capital that they will need, to spend for what the country needs. If the result is contentious, then we could see deeper trouble for the country and that will be far from desirable, because most people have a right to believe that the country is in a deep enough hole already. 

Do you think the much talked about BVAS will assist in reducing the number of election petitions, since it is said to be accurate?

Anyone who took minimal interest in the matter would have figured that, INEC’s assurances of a seamless process or flawless BVAS deployment were both empty and not believable. I wrote about this more than once, but, I guess, as Nigerians, we are wired to miracles and to magic. So, there was an anaesthetising effect to clothing INEC with credulity that it’s squalid record under the current leadership, has neither earned nor justified. 

BVAS was untried on anything approaching the scale of the claim INEC made on it, in this election. Prior to this, it had only been tried in three off-cycle Governorship elections in Anambra, Ekiti, and Osun, as well as in the FCT Local elections. In all of those, the flaws were very evident. But, the biggest issue with BVAS, is that the result uploading function has a human interface that is tailor-made for substitution of results. That was always very evident. We now see that is exactly where the complaints are, in these elections. That was clear from the beginning. So, you end up in a situation in which party agents have one result sheet in hard copy, and another result is the one uploaded to the INEC platform. That will make for very contentious collation, and I suspect that is upon us. 

Some seem to be losing hope in the Judiciary as the last hope of the common man, because of some of its decisions and the slow pace of the wheels of justice, aside from political cases, while others are saying that a good number of political cases these days seem to be decided based on technical rather substantive justice, thereby defeating the purpose of democracy and denying the people the choices of their preferred candidates. Please, share your opinion on this.

I am one of those who has lost hope, so, please don’t speak about some. That is one of the reasons, I no longer can claim to be a Lawyer. The kinds of things that come out of our courts these days, can only be manufactured by Juju priests and voodoo shrines. I did not train for either, and lack the qualifications to practice any of those. This is not just about technicality; it is also about bare-faced abuse of judicial office. Going to court these days cannot be fulfilling or meaningful for those who do it at any level, from the Area Courts, Magistrates Court or District Courts to the Supreme Court. Strange things happen, in all of our courts these days. It is also that the courts have become turfs for insider dealing. Most of the people appointed to the Bench these days, are related to powerful Judges or powerful politicians – the son of this, the daughter of that, the wife of the other one, or the mistress of that one. It is no longer about competence, character, skill or qualification. The Bench has been taken over, by intimations of pillow-talk propinquity. It is disgraceful. 

That the 1999 Constitution has not worked well for Nigeria, is a fact. Some have advocated a return to the 1963 Constitution and Restructuring – regional governments and true devolution of powers away from the centre, while others still have advocated an Interim Government for a period of six months, in order to draw up a new Constitution and set the country on the right path, instead of going straight into the 2023 general elections. Would you subscribe to a retention of the 1999 Constitution with all its imperfections, or a return to regional autonomous units? What are your thoughts on the different options for Nigeria?

There is nothing so imperfect about the Nigerian Constitution, that cannot be fixed by good leadership. However, year-on-year, our leadership at all levels gets more venal. The Constitution did not say we should rig elections, or fill high public positions with the worst instead of the best. It did not say we should not send our children to school, or that we should watch our mothers and sisters die in pregnancy for failure to provide for them. The Constitution is not a charter for State incapacity, or for mass plunder of our natural resources. The things that ail us are man- and woman-made. Look, our Constitution is already too prolix, even before you add the amendments. We think that what we need is writing more verbiage onto the document, but that is only going to make the Constitution more complex. 

India became independent in August 1947, but only adopted its constitution over three years later in 1950. It took three years to negotiate a constitution which has lasted. In Nigeria, we decree constitutions into being without thinking about negotiating the agreements that would underpin it, or addressing first principles. A constitution is more than a legal document. It is first and foremost, a testament to a political settlement, as well as an IOU to generations yet unborn. The legal dimension to the constitution is in fact, the least significant of its functions. In Nigeria we make the constitution prisoner to the lack of imagination of black-letter Lawyers, rather than a shrine that binds us in civic worship. That is why we are in this crisis. I don’t imagine I will persuade anyone that what I have just said, is anything other than the fantasies of an idealist, but, there you have it. 

The situation at the Supreme Court where the system is so clogged up that cases are now given dates in 2024 and beyond, is quite worrisome to say the least. For well over a year, the Apex Court has also been short of Justices. As at today, there are only 13 Supreme Court Justices instead of a full court of 21. The Justices are overworked. What panacea would you proffer to ameliorate all this? Some have advocated that Divisions of the Court be created in the geopolitical zones of the country, to decongest the Apex Court, while other suggest that there be separate Divisions to hear election matters and policy/interpretation cases? What do you think?

You see, I have had my say on the Supreme Court for a long time. I have written about it for nearly two decades. I was actually thinking the other day, that I should put all of my writings on the Supreme Court together into one collection. So, I have really little to say in response to your question. 

Again here we are victims of our short-term tactical thinking, without no sense of first principles. First, we need a diagnosis. Every time the Supreme Court is raised, the stock solution is appoint more Justices. No one thinks about the quality of Justices, or, even more, about what they go there to do. So, we send up Justices to the Supreme Court, to be deciding whether a party should nominate Jude or Onikepo to the House of Assembly of Atlantic State. Well, there are over 900 House of Assembly seats and now 18 parties, and all of their nomination fights for just house of assembly seats could end up in the Supreme Court, and be on a clock for disposal. Then add House of Reps seats, and Senate, and Governor. I have not mentioned Local Government nominations. All that can end up in the Supreme Court. It is an utter waste of judicial time and resources. So, the Court doesn’t ever again get to have time for ordinary citizens. Instead, it is chasing political cases for sanguine and subsistence reasons, all at the same time. 

It is easy to say the Court is overworked, but, when you see it take up cases like the one over the currency thing on original jurisdiction, it can make one despair into thinking that there is a sadomasochistic streak up there. I confess that, I don’t get it. I could go on about the age at which Justices get to the Court, but, if you are appointing people who will spend two, three or four years on the Court, what kind of contribution can then make? 

But, because we have this turn-by-turn system, we will not be able to get it right. So, the problem is hydra-headed. There are no quick fixes. By the way, I think the idea of creating geo-political divisions of the Supreme Court, is entirely messed up. Sorry, there is no other way that I can find to describe it. If you read their decisions carefully between the lines, you will see the Court is already sufficiently tribalised. When you relocate the Court into geo-political zones, you no longer have a Supreme Court; it will become a Supreme Bantustan Court. In Nigeria, sadly, we love our Bantustanisations. That is part of the reason, why there are no common standards applicable to us all anymore. That is also why the only thing that now unites us all, is mutual disaffection with the country and with each other. 

How would you rate the outgoing administration vis-à-vis its three main campaign promises – fighting corruption and insecurity, and revamping the economy, and also its respect for the rule of law? What is your view on the state of the nation generally?

Well, my mother always told me: If you can’t say a kind word about someone, hold your peace. The best I can do, is wish Mr Buhari good riddance when his time is up on May 29. I always thought he was good enough, only as a misadventure. He has not disappointed me, though. Not at all. It is good that he got his wish, to become President of Nigeria. If he didn’t we would all have been made to believe when his earthly sojourn is over, that he would have been the solution to all of Nigeria’s problems. Now, we know that he is the problem against which all of Nigeria’s solutions proved ineffective. 

Thank you Prof.