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As Nigeria’s judges get set to begin voting, By Chidi Anselm Odinkalu

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This week, the opening salvo will be fired to signal the onset of the final round of voting in Nigeria’s electoral marathon. This is not a reference to the state-level ballots that occurred around the country on Saturday, March 18. I refer instead to something far more consequential.

Democracy may be about choices and decisions by citizens in theory. As practiced in Nigeria, however, citizens are mostly spectators. In every election, Nigeria’s judges have the final votes.

Every election cycle in Nigeria has three seasons. The campaign season belongs to the parties, the politicians, and godfathers. This is followed by the voting season, during which the security agencies, thugs, and the Independent National Electoral Commission (INEC) hold sway. Thereafter, matters shift to the courts for the dispute resolution season, which belongs to the lawyers (mostly Senior Advocates of Nigeria, SANs) and judges. All three are separate but interdependent.

Of 1,490 seats contested federally and in the states in 2019 (excluding the CT Area Council ballots), the courts decided 805 (54.02%). This is higher than just over 45% recorded in 2015 and 51% recorded in 2011 but lower than the high of 86.35% from the nadir of 2007. So, by 2019, Mahmood Yakubu’s INEC had bled all the confidence that Attahiru Jega, his predecessor, had built in the electoral process. In 2023, he shamelessly pulverized what was left of it.

 

With elections to federal offices concluded on 25 February and to state offices on 18 March, election petition season is now formally open. On 22 March, the first landmark will be reached with the expiration of the 21-day deadline for filing petitions arising from the presidential election results announced on 1 March.

Already, every piece of evidence points to the likelihood that this will be no ordinary season. On March 3, 48 hours after the announcement of the results, the Court of Appeal ordered the INEC to grant access to the parties to inspect the materials generated from the presidential elections. Three days later, the order was served on the INEC. Instead of complying, the commission stone-walled.

On March 13, INEC chairman, the execrable Mahmood Yakubu, informed lawyers for the parties who demarched him at the INEC headquarters in Abuja, that he had nothing to hide before quickly reminding them that most of the documents that they wanted were in the states and not at the INEC Headquarters. As with all the acts of infamy to which this INEC chairman has become habituated, he said this with a straight face.

This decentralization of obfuscation is original but unlawful. Under the Constitution and the Electoral Act, Nigeria is one constituency for the presidential election and the INEC Chairman is the only returning officer. The idea that documents used in the election are in the custody of INEC states offices is quite simply nonsensical. It is his place to organize custody in such a manner that the standards of access to them is uniform and predictable. By sending the lawyers on an obstacle course through 36 states and the FCT, Mahmood makes manifest his design to frustrate election dispute resolution.

Livy Uzoukwu, the SAN leading the legal team for Labour Party’s Peter Obi, credits INEC’s stone-walling with forcing them to reduce the scope of their inspection of materials from 36 states to just nine. Even then, by March 16, they had granted the lawyers access to only two states.

In Nigeria, every election petition is heard by a panel of three, five, or seven judges. If they all don’t agree, the judges will decide by majority vote. To win, a party must have the votes of two judges out of three (first instance); three justices out of five (appeal), or four justices out of seven (Supreme Court). Where there is such disagreement, there will be dissents.

The heightened role of judges in elections is essentially a feature of the presidential system of government. In Nigeria, Kayode Eso handed down the first notable dissent in this field in the Supreme Court decision in Obafemi Awolowo’s challenge to the victory of Shehu Shagari in the 1979 presidential election. Six of the seven Justices, led by Chief Justice Atanda Fatayi-Williams, ruled that the elections were in “substantial compliance” with the law, but Eso, the junior Justice on the panel, filed a memorable dissent.

Sometimes, the decisions of the courts inexplicably diverge. Following elections in September 1983, Nigeria’s Supreme Court heard two cases arising respectively from the governorship elections in Anambra and Ondo States. The issues were broadly the same: the then ruling party, the National Party of Nigeria (NPN), was credibly accused of rigging the elections in both states, enabling the Federal Electoral Commission (FEDECO) to announce NPN candidates as winners when they lost. In Anambra, the citizens mostly went back to their businesses.

In Ondo State, the citizens decided to make the state ungovernable by burning everything in sight. On December 30, 1983, the Supreme Court upheld the Anambra governorship election by a majority of six to one but invalidated the Ondo Governorship result by the same margin. Hours later, on the night of the same day, soldiers sacked the government. By the time the court issued its reasons on January 6, 1984, Maj-Gen. Muhammadu Buhari was already one week old as a military ruler.

It is not only in Nigeria that election courts can announce incomprehensible outcomes. In 2006, Uganda’s Supreme Court considered a petition by the opposition candidate, Kizza Besigye, against incumbent President, Yoweri Museveni. In its decision, the Court concluded that “there was non-compliance with the provisions of the Constitution, Presidential Elections Act and the Electoral Commission Act, in the conduct of the 2006 Presidential Elections”; that there was “disenfranchisement of voters by deleting their names from the voters register or denying them the right to vote” and that “the principle of free and fair elections was compromised by bribery and intimidation or violence in some areas of the country.” Nevertheless, Chief Justice Benjamin Odoki led three other judges in a majority of four to uphold the outcome in favour of Museveni.

Sometimes, the decisions in election petitions are dodgy. When it decided the election petition against the outcome of the December 2012 presidential election filed by then-opposition candidate, Nana Akuffo-Addo, on August 29, 2013, Ghana’s Supreme Court announced a majority of six against three in favour of upholding the declaration of President Mahama as the winner. Economist, George Ayittey, wrote that the announced decision was “bungled. There was an inexplicable 4-hour delay in announcing the verdict, fueling speculation that something fishy was going on behind the scenes. Then Justice Atuguba announced a six–three verdict dismissing the petition. A day later, the verdict was changed to 5-4.” In a study of the judgment published in 2014 under the title ‘The Burdens of Democracy in Africa: How Courts Sustain Presidential Elections’, late Nigerian lawyer, Bamidele Aturu, showed that five of the nine justices who sat on that election petition in fact ordered a partial or total rerun of the election. In effect, rather than the announced majority of six–three in favour of President Mahama, the verdict was in fact five-four against him.

More recently, miracles have occurred. In August 2017, Kenya’s Chief Justice, David Maraga, led the Supreme Court to strike down a presidential election in Africa for the first time. In May 2020, Malawi’s Supreme Court did the same. In Nigeria four months earlier, the Supreme Court on January 13, 2020, declared Hope Uzodinma governor of Imo state despite his having been returned fourth in the election.

What Nigeria’s Supreme Court does in 2023 will matter. Like the major parties, all actors in Nigeria’s election petition process have learnt to build “structures”. For the parties, their structures are in the infrastructure of election rigging, or what former governor of Ekiti State, Kayode Fayemi, once famously called the criminal network of “five gods and the godfather”, including the highest levels of INEC, the security services, thugs, and the judiciary. For INEC, it is in the ruling party and the power network of incumbency at the federal and state levels. For the judiciary, it is in the same mutual benefit network of incumbency in the various branches of government at various levels.

 

Election petitions have become a preoccupation of judges in Nigeria and around Africa and a defining process in public perception of the courts. In the past, they provided moments of high forensic and judicial drama. Increasingly, however, they have become performative rituals for sanctifying electoral burglary and celebrating judicial capture. The beneficiaries are the burglars and the judges. The best the victims can often expect to receive is a timorous Pontius Pilate mistaken as a valiant judge. In 2023, Nigeria’s judges can sculpt a different narrative.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu

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Strictly Personal

Budgets, budgeting and budget financing, By Sheriffdeen A. Tella, Ph.D.

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The budget season is here again. It is an institutional and desirable annual ritual. Revenue collection and spending at the federal, State and local government levels must be authorised and guided by law. That is what budget is all about. A document containing the estimates of projected revenues from identified sources and the proposed expenditure for different sectors in the appropriate level of government. The last two weeks have seen the delivery of budget drafts to various Houses of Assembly and the promise that the federal government would present its draft budget to the National Assembly.

Do people still look forward to the budget presentation and the contents therein? I am not sure. Citizens have realised that these days, governments often spend money without reference to the approved budget. A governor can just wake up and direct that a police station be built in a location. With no allocation in the budget, the station will be completed in three months. The President can direct from his bathroom that 72 trailers of maize be distributed to the 36 states as palliatives. No budget provision, and no discussion by relevant committee or group.

We still operate with the military mentality. We operated too long under the military and of the five Presidents we have in this democracy, two of them were retired military Heads of State. Between them, they spent 16 years of 25 years of democratic governance. Hopefully, we are done with them physically but not mentally. Most present governors grew up largely under military regimes with the command system. That is why some see themselves as emperor and act accordingly. Their direct staff and commissioners are “Yes” men and women. There is need for disorientation.

The importance of budget in the art of governance cannot be overemphasized. It is one of the major functions of the legislature because without the consideration and authorisation of spending of funds by this arm of government, the executive has no power to start spending money. There is what we refer to as a budget cycle or stages. The budget drafting stage within the purview of the executive arm is the first stage and, followed by the authorisation stage where the legislature discusses, evaluates and tinkers with the draft for approval before presenting it to the President for his signature.

Thereafter, the budget enters the execution phase or cycle where programmes and projects are executed by the executive arm with the legislature carrying out oversight functions. Finally, we enter the auditing phase when the federal and State Auditors verify and report on the execution of the budgets. The report would normally be submitted to the Legislature. Many Auditor Generals have fallen victim at this stage for daring to query the executives on some aspects of the execution in their reports.

A new budget should contain the objectives and achievements of the preceding budget in the introduction as the foundation for the budget. More appropriately, a current budget derives its strength from a medium-term framework which also derives its strength from a national Development Plan or a State Plan. An approved National Plan does not exist currently, although the Plan launched by the Muhammadu Buhari administration is in the cooler. President Tinubu, who is acclaimed to be the architect of the Lagos State long-term Plan seems curiously, disillusioned with a national Plan.

Some States like Oyo and Kaduna, have long-term Plans that serve as the source of their annual budgets. Economists and policymakers see development plans as instruments of salvation for developing countries. Mike Obadan, the former Director General of the moribund Nigeria Centre for Economic and Management Administration, opined that a Plan in a developing country serves as an instrument to eradicate poverty, achieve high rates of economic growth and promote economic and social development.

The Nigerian development plans were on course until the adoption of the World Bank/IMF-inspired Structural Adjustment Programme in 1986 when the country and others that adopted the programme were forced to abandon such plan for short-term stabilisation policies in the name of a rolling plan. We have been rolling in the mud since that time. One is not surprised that the Tinubu administration is not looking at the Buhari Development Plan since the government is World Bank/IMF compliant. It was in the news last week that our President is an American asset and by extension, Nigeria’s policies must be defined by America which controls the Bretton Woods institutions.

A national Plan allows the citizens to monitor quantitatively, the projects and programmes being executed or to be executed by the government through the budgeting procedure. It is part of the definitive measures of transparency and accountability which most Nigerian governments do not cherish. So, you cannot pin your government down to anything.

Budgets these days hardly contain budget performance in terms of revenue, expenditure and other achievements like several schools, hospitals, small-scale enterprises, etc, that the government got involved in successfully and partially. These are the foundation for a new budget like items brought forward in accounting documents. The new budget should state the new reforms or transformations that would be taking place. Reforms like shifting from dominance of recurrent expenditure to capital expenditure; moving from the provision of basic needs programmes to industrialisation, and from reliance on foreign loans to dependence on domestic fund mobilisation for executing the budget.

That brings us to the issue of budget deficit and borrowing. When an economy is in recession, expansionary fiscal policy is recommended. That is, the government will need to spend more than it receives to pump prime the economy. If this is taken, Nigeria has always had a deficit budget, implying that we are always in economic recession. The fact is that even when we had a surplus in our balance of payment that made it possible to pay off our debts, we still had a deficit budget. We are so used to borrowing at the national level that stopping it will look like the collapse of the Nigerian state. The States have also followed the trend. Ordinarily, since States are largely dependent on the federal government for funds, they should promote balanced budget.

The States are like a schoolboy who depends on his parents for school fees and feeding allowance but goes about borrowing from classmates. Definitely, it is the parents that will surely pay the debt. The debt forgiveness mentality plays a major role in the process. Having enjoyed debt forgiveness in the past, the federal government is always in the credit market and does not caution the State governments in participating in the market. Our Presidents don’t feel ashamed when they are begging for debt forgiveness in international forum where issues on global development are being discussed. Not less than twice I have watched the countenance of some Presidents, even from Africa, while they looked at our president with disdain when issues of debt forgiveness for African countries was raised.

In most cases, the government, both at the federal and state cannot show the product of loans, except those lent by institutions like the World Bank or African Development Bank for specific projects which are monitored by the lending institutions. In other cases, the loans are stolen and transferred abroad while we are paying the loans. In some other cases, the loans are diverted to projects other than what the proposal stated. There was a case of loans obtained based on establishing an international car park in the border of the State but diverted to finance the election of a politician in the State. The politician eventually lost the election but the citizens of the State have to be taxed to pay the loan. Somebody as “Nigeria we hail thee”.

Transformation in budgeting should commence subsequently at the State and federal level. Now that local government will enjoy some financial autonomy and therefore budgeting process, they should be legally barred from contracting foreign loans. They have no business participating in the market. They should promote balanced budget where proposed expenditures must equal the expected revenues from federal and internal sources. The State government that cannot mobilise, from records, up to 40 percent of its total budget from IGR should not be supported to contract foreign loans. The States should engage in a balanced budget. The federal government budget should shift away from huge allocations to recurrent expenditure towards capital expenditure for capital formation and within the context of a welfarist state.

Sheriffdeen A. Tella, Ph.D.

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Strictly Personal

African Union must ensure Sudan civilians are protected, By Joyce Banda

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The war in Sudan presents the world – and Africa – with a test. This far, we have scored miserably. The international community has failed the people of Sudan. Collectively, we have chosen to systematically ignore and sacrifice the Sudanese people’s suffering in preference of our interests.

For 18 months, the Rapid Support Forces (RSF) and the Sudanese Armed Forces (SAF) have fought a pitiless conflict that has killed thousands, displaced millions, and triggered the world’s largest hunger crisis.

Crimes against humanity and war crimes have been committed by both parties to the conflict. Sexual and gender-based violence are at epidemic levels. The RSF has perpetrated a wave of ethnically motivated violence in Darfur. Starvation has been used as a weapon of war: The SAF has carried out airstrikes that deliberately target civilians and civilian infrastructure.

The plight of children is of deep concern to me. They have been killed, maimed, and forced to serve as soldiers. More than 14 million have been displaced, the world’s largest displacement of children. Millions more haven’t gone to school since the fighting broke out. Girls are at the highest risk of child marriage and gender-based violence. We are looking at a child protection crisis of frightful proportions.

In many of my international engagements, the women of Sudan have raised their concerns about the world’s non-commitment to bring about peace in Sudan.

I write with a simple message. We cannot delay any longer. The suffering cannot be allowed to continue or to become a secondary concern to the frustrating search for a political solution between the belligerents. The international community must come together and adopt urgent measures to protect Sudanese civilians.

Last month, the UN’s Independent International Fact-Finding Mission for Sudan released a report that described a horrific range of crimes committed by the RSF and SAF. The report makes for chilling reading. The UN investigators concluded that the gravity of its findings required a concerted plan to safeguard the lives of Sudanese people in the line of fire.

“Given the failure of the warring parties to spare civilians, an independent and impartial force with a mandate to safeguard civilians must be deployed without delay,” said Mohamed Chande Othman, chair of the Fact-Finding Mission and former Chief Justice of Tanzania.

We must respond to this call with urgency.

A special responsibility resides with the African Union, in particular the AU Commission, which received a request on June 21 from the AU Peace and Security Council (PSC) “to investigate and make recommendations to the PSC on practical measures to be undertaken for the protection of civilians.”

So far, we have heard nothing.

The time is now for the AU to act boldly and swiftly, even in the absence of a ceasefire, to advance robust civilian protection measures.

A physical protective presence, even one with a limited mandate, must be proposed, in line with the recommendation of the UN Fact-Finding Mission. The AU should press the parties to the conflict, particularly the Sudanese government, to invite the protective mission to enter Sudan to do its work free from interference.

The AU can recommend that the protection mission adopt targeted strategies operations, demarcated safe zones, and humanitarian corridors – to protect civilians and ensure safe, unhindered, and adequate access to humanitarian aid.

The protection mission mandate can include data gathering, monitoring, and early warning systems. It can play a role in ending the telecom blackout that has been a troubling feature of the war. The mission can support community-led efforts for self-protection, working closely with Sudan’s inspiring mutual-aid network of Emergency Response Rooms. It can engage and support localised peace efforts, contributing to community-level ceasefire and peacebuilding work.

I do not pretend that establishing a protection mission in Sudan will be easy. But the scale of Sudan’s crisis, the intransigence of the warring parties, and the clear and consistent demands from Sudanese civilians and civil society demand that we take action.

Many will be dismissive. It is true that numerous bureaucratic, institutional, and political obstacles stand in our way. But we must not be deterred.

Will we stand by as Sudan suffers mass atrocities, disease, famine, rape, mass displacement, and societal disintegration? Will we watch as the crisis in Africa’s third largest country spills outside of its borders and sets back the entire region?

Africa and the world have been given a test. I pray that we pass it.

Dr Joyce Banda is a former president of the Republic of Malawi.

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