Supreme Court’s Interim Order Still Subsists
For those who made a song and dance out of highlighting the fact that, last Wednesday, in the case of the 3 AGs v AGF Currency Case (SC/CV/162/2023), the Supreme Court was silent about its interim order of February 8, it is obvious that the order remains sacrosanct until it is set aside, even though the President, CBN and others have disobeyed it. The said interim order restrained the February 10 deadline “pending the hearing and determination” of the motion on notice for interlocutory injunction. In this context, the word ‘Determination’ means to decide/settle the question of the motion on notice, that is, when the Apex Court hands down its ruling on the motion on notice. It goes without saying therefore, that the idea that the interim order ceases to be in place before the Supreme Court has ruled on the motion on notice, because it may have been silent on the issue, is absurd; to say the said interim order ceases to exist, is tantamount to saying that the Apex Court ruled in advance on the motion on notice, without delivering its ruling!
I was therefore, dismayed, to hear my learned colleagues publicly asking what the fate of the interim order of February 8 is! It is questions like this from people who were trained as legal practitioners, and should therefore, know better, that lay the foundation for more confusion among the people, and also fuel the constitutional crisis we find ourselves in; when even the Executive is also given impeachable/incorrect legal opinions by its legal advisers, thereby causing the Executive to act unlawfully or unconstitutionally at times.
Constitutional Crisis
What do you call a country, whose Federal Government serially breaches and by-passes it’s operating manual, the Constitution, with gusto and aplomb, plus relish, and has no regard for the rule of law? A Banana Republic, running as if it does not believe in the tenets of democracy, nor does it enjoy the benefits of receiving sound legal advice. In AG Federation v AG of Abia State (2001) LPELR-631(SC) per Karibi-Whyte JSC, the Supreme Court held that: “Our system of government and our constitutional structure, entrenches the exercise of separation of constitutional powers among the three equal and separate departments of the Constitution. The exercise by usurpation of one of the constitutional functions of the other, is very likely to result in conflicts and productive of a constitutional crisis”.
About five years ago, I wrote an editorial titled ‘The Road to Constitutional Crisis’. With the assistance of the Buhari administration, it seems that we have finally arrived at that destination. In my aforementioned editorial, I had restated a definition of Constitutional Crisis that I read and agreed with, which stated in part: “….Typically, a dispute or an interpretation or a violation of a provision in the constitution between different branches of government is involved”. I concluded that: “In simple terms, it occurs when there may be ambiguities in the constitution, and people try to take advantage of it, or a branch of government acts ultra vires its powers, and the way to halt this anomaly, is unclear, in short, a problem with no sure solution”. See the case of Buhari & Ors v Obasanjo & Ors (2003) LPELR-813(SC).
There are various categories of constitutional crisis, but that which is applicable for the purpose of this discourse, is where the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution) are ignored or violated by any of the arms of government, where the President has acted ultra vires his Section 5 constitutional powers (because he still has dictatorial tendencies, even though ostensibly, we are no longer in a military era, but a democratic dispensation) and when the various arms of government are set against each other for various reasons such as rivalry, corruption, partisanship, tribalism, and even self-interest.
The common denominator in the various examples of Nigeria’s constitutional crisis which I shall mention below, is the Executive’s seeming attempts to wrestle power from the other co-equal arms of government by the usurpation of their constitutional powers, contrary to Sections 1(1), 1(2), 1(3), 4, 5, 6, 235 & 287(1) of the Constitution, and exalt itself over and above them in a fashion that sometimes resembles that of an autocratic dispensation, where the dictator takes decisions without due consultation, or with consultation from cronies/‘yes’ men and kitchen cabinet; and implements them without following the requisite due process. See the case of AG Federation v AG of Abia State (Supra).
Examples of Constitutional Crisis
1) Purchase of Tucano Jets
In 2018, the Buhari administration spent $490 million purchasing 12 Super Tucano Jets from the US Government without seeking and obtaining the approval of the National Assembly (NASS) (see Sections 4(2) & 88 of the Constitution & Items 2 & 3 of the Exclusive Legislative List) to make such an enormous expenditure. The excuse of the ‘doctrine of necessity’ could not avail the President, because the US Government had issued its approval for our purchase of the Jets since December 2017, and there was therefore, ample time to seek and obtain the approval of NASS from the time the approval was given, with the knowledge that the Nigerian Government could be called upon anytime from then to make payment.
The action of the President purchasing the Jets without following due process and seeking the requisite approval from NASS, was clearly ultra vires the President’s powers, and a usurpation of the constitutional role of the Legislature. He then sought ratification from NASS after the fact, thereby rendering NASS irrelevant in such an important matter, since it wouldn’t have mattered if they refused to consent, the act having been completed.
2) Handling the #EndSARS Protesters in October 2020
The shooting, wounding and killing of unarmed Protesters at the Lekki tollgate during the above-mentioned Protest, was in clear violation of Sections 14(2)(b), 33, 34, 39(1) & 40 of the Constitution, which include the right to security, the right to life and dignity, freedom of expression and association. Obviously, it was the Executive that must have ordered the Military to the scene, and given them the ‘Carte Blanche’ to open fire.
2) Appointment of Inspector General of Police
Section 153(1)(l) of the Constitution provides for the establishment of the Nigeria Police Council, while Section 215(1)(a) of the Constitution, Third Schedule to the Constitution Part 1 L Nigeria Police Council (NPC) Paragraph 28(c) and Section 7(3) of the Police Act 2020 (PA) all provide that the President shall appoint the Inspector General of Police (IGP) on the advice of the NPC. The NPC comprises of the President, all the Governors, Chairman of the Police Service Commission and the IGP. Learned Silk, Femi Falana, has complained repeatedly that the NPC doesn’t hold meetings as it should, let alone advise the President on anything, particularly his choice of IGPs. There are presently at least three Governors who are Lawyers, Rivers and Sokoto, and Ondo, a Senior Advocate of Nigeria. Per chance, if they had been consulted about the appointment of IGP Alkali Baba, they would have pointed out to the President the provision of Section 215(1)(a) of the Constitution, that the appointment of the IGP shall be from among serving members of the Police Force, inferring that the IGP must be a serving Police Officer throughout his four year tenure (see Sections 7(6) of the PA), and that by virtue of Section 18(8) of the PA, sometime next month the IGP will cease to be a serving Police Officer before the end of his tenure of office in 2025, as he will have attained the mandatory retirement age of 60 and 35 years in service.
An unnecessary constitutional crisis caused by the President, in order to enthrone his choice of IGP at all cost.
3) President’s Disobedience to Supreme Court’s Interim Order in the Currency Redesign Matter
Just like the NPC, Section 153(1)(h) of the Constitution establishes the National Economic Council (NEC) which has the Vice President as Chairman, and all the State Governors and CBN Governor as members, to advise the President on the economic affairs and programmes of the country (see Third schedule to the Constitution Part I H Paragraph 19).
In his argument before the Supreme Court, Counsel to Kano State, Sanusi Musa, SAN, raised the point that NEC was not consulted about the currency redesign policy. The logical assertion is that the decision to make and implement the policy (and the anguish unleashed on Nigerians arising therefrom), therefore, runs afoul of the provisions of the Constitution – in my opinion, it defies Sections 1(1), (2), (3), 14(2)(b) & 16(1)(b) particularly, amongst other constitutional provisions cited above.
Besides this, not only did the President, CBN, etc disobey the Supreme Court’s interim order issued on February 8, 2023 contrary to Sections 235 & 287(1) of the Constitution, the President sat as a court of appeal on the Supreme Court’s interim order and sought to vary it – a double constitutional crisis! A clear usurpation of the role of NEC and that of the Supreme Court, while showing a blatant disregard for the latter. See the case of Okonkwo v FRN & Anor (2021)LPELR-58384(SC) per Musa Dattijo Muhammad JSC, where the Apex Court held inter alia that: “This Court is the highest and final Court of Appeal in Nigeria. It’s decisions bind every Court, authority or person in Nigeria”. I submit that, this includes the President and the Executive.
Conclusion
Examples abound on how this administration has eroded our institutions, setting Nigeria on a sure path to constitutional crisis, in order to have its way, whether right or wrong. Though some argue that this APC administration somewhat reduced the chances of its party members running for elective offices with the lingering fuel and currency crises, if this election is adjudged to be mostly free and fair, at least the Buhari administration would have bequeathed something positive – an improved electoral process.
The incoming administration already has its work cut out for it, in terms of restoring the Constitution its place of pride, rebuilding our institutions and enthroning the rule of law in all the arms of government generally.
P.S. A Brief Summary of Some of My Observations of Last Saturday’s Elections
In my polling unit, for the number of voters, more BVAS devices should have been deployed. One of the BVAS devices had issues, and those whose surnames started with the alphabets in the range that that particular device had been programmed to accredit, had to spend several hours waiting until the device started functioning, when they were then able to be accredited to vote. Though the polling unit was somewhat rowdy, using the functioning BVAS device for those whose surnames started with the alphabets A-J was seamless, and I didn’t hear any reports of electoral malpractices in my polling unit.
We however, witnessed quite a few electoral offences across the country, right from the proscribed IPOB attacking registration centres and trying to stop people in the South East from registering to vote, and trying to prevent the elections from holding there; to videos of underaged children flashing PVCs on Election Day, saying they were voting for particular candidates; to the disruption of some polling units and burning of ballot papers after people had voted, thereby preventing their votes from being counted; to the disenfranchisement of people; to INEC officials tampering with result sheets (we saw a video of a Youth Corper who was caught, and confessed to attempting to give the results of one candidate to another); to the arrest of representatives of politicians/political parties for trying to buy votes by means of bank transfer, and using Naira and US Dollars; threats and intimidation of voters to vote for particular candidates – this cut across all the leading candidates’ parties; to thuggery and violence. All these actions are offences, contrary to the Electoral Act 2022.
The offence that however, took the cake in my view even if it seemed trivial to some, was that of President Buhari and the Attorney-General of the Federation, Abubakar Malami, SAN, who flashed their ballot papers to show that they had voted for the APC, contrary to Section 122(1) of the EA which provides for secret ballot, and punishable by Section 122(4) of the EA with a maximum fine of N100,000 or three months imprisonment or both! Among other things, it showed a total contempt for the rule of law, by the President and the Chief Law Officer of the Federation.
The slow pace of releasing of the election results by INEC, is rather disappointing, and has given rise to the dissemination of all sorts of fake results all over social media. While the APC and PDP both declared they were leading in the Presidential polls by the day after the elections, even though INEC had declared only a few results, the Labour Party or it’s supporters, are also driving their own narrative that they have won the elections, and if they are not declared as such, it means that they have been cheated out of their victory. How do you declare yourself as the winner of a football game, because you scored a goal five minutes into the game, and there’s still over one more hour to go in the football match? This type of behaviour is inciting and dangerous, especially if the final results are not declared in favour of the one who assumes he has won the election. Patience, they say, is a virtue.
At the end of the day, people must not forget that by virtue of Section 134(2)(a) & (b) of the Constitution, the winner of the Presidential election must have the highest number of votes cast and the 25% spread in 24 States and Abuja. Without fulfilling these two conditions, there will be a second election.
