A member of the Constitutional Drafting Committee that produced the 1979 Constitution of Nigeria, Dr Uma Eleazu, has said that presidential election petitions in court should be concluded before the swearing in of the new president.
In an interview with VINCENT KALU, Dr. Eleazu, who midwifed the setting up of the National Institute for Policy and Strategic Studies (NIPSS), Kuru, Jos, said the National Assembly, Independent National Electoral Commission and the judiciary need an overhaul if Nigeria dream of credible election in future.
After the general elections, there were complaints that the conduct was very poor. What should we do to get it right in future elections?
For us to get credible election in future, we need to do a number of things. The electoral process is just one of the institutions that uphold the democratic process. Since 1999, we like to say that democracy has returned in Nigeria. If that is so, one of the institutions that will uphold the democracy is the electoral system. The other institution that will hold the electoral system is the referee; then the institution that will hold the electoral system to account is the court. The people who should examine the process itself are the National Assembly. All of these things have their problems.
If we want to have a proper democratic election, we have to do something about the National Assembly, and we have to do something about the judiciary because they are all interconnected. We need to review the electoral system itself. Recall that between the president and the National Assembly, to pass into law the Electoral Act of 2022 was difficult. At one time it seemed as if President Buhari didn’t want to sign it into law. And when he finally signed it, the National Assembly was full of encomium, thanking him for that.
Now, take the Electoral Act 2022, all the provisions made there, but the referee, which is the Independent National Electoral Commission (INEC), has proved not to be independent. In spite of all the monies spent on technology, still it was messed up. The question we ask ourselves now before we start thinking of going to do something about it, is the problem with the technology or is it with the people operating the institution and the technological support in it?
In the final analysis, you will find out that the problem is not with the technology but with the people – from the National Assembly to the commissioners of the INEC, to even the judges in the court. All of them have to be reviewed and overhauled if we dream of having a credible election in the future, and the people also have to know what democracy is all about, and that means a whole change of mindset in Nigeria as whole. The problem is too much.
Buhari’s tenure comes to an end in the next few weeks. What was his lowest point?
Who said so?
The Constitution says so?
I have been looking at the constitution, but I have not seen the place where it says that he must leave office on May 29, when we have not settled with who is going to be his successor. That is what I have been searching since morning today. If you have seen it tell me so that I will stop the search.
The constitution prescribes that a president stays in office for a tenure of four years, and may be reelected for another four years?
But, since we don’t have in place his successor, he cannot leave office. He cannot leave the presidency of Nigeria vacant. Look at this scenario. Can you imagine that he leaves office say by death before May 29. What do you think will happen? A vice president will step in and continue. That vice president would not leave office until the person that he would hand over to is sworn in.
There is a president-elect as declared by INEC?
He is the president-elect, he is not the president. There are cases in court challenging the decision of INEC. They are not challenging Tinubu. It is like a game of football, if there is an infraction and someone has committed foul at the penalty area, and the referee blows foul and the linesmen oppose it. The game is stopped in between and the referee goes to the video assisted referee (VAR), and it will be replayed several times until both the referee and the linesmen agree as to whether there was foul or there was no foul. It is almost a similar case where we are.
There is a process by which a new president is elected. We have gone almost to the end of it, and something happened. The referee said this is winner, and the other players said he is not the winner because we have not finished counting and other reasons they gave. INEC told them to go court. The end of the electoral processes is all those cases in the court. So, the decision of the court must be heard before you move one step further.
You helped to draft the 1979 Constitution. Using this constitution, while the case between Shehu Shagari of the National Party of Nigeria (NPN) and Obafemi Awolowo of the Unity Party of Nigeria (UPN) was still in court, Shagari was sworn in as the president.
The matter was over the two thirds of 19 states. The courts arrived at that before Shagari was sworn in. In this country, we don’t allow debate so that people would be enlightened. It doesn’t really matter whether it is Bola Tinubu who becomes president, but the democratic process of producing a president must be allowed to get to the end.
But coming to this present dispensation, Umaru Yar’Adua was already sworn in while the electoral case between him and Buhari was still in court?
Well, I don’t remember how it went. I have to check that. It was wrong to have sworn in Yar’Adua when the case was still in court. The fact that they did it before doesn’t make it right. This present case will give the judiciary the opportunity of righting the error they made at that time. There was an article somebody wrote in one of the daily newspapers, which I was writing the rejoinder for. Some argued that swearing in Tinubu would violate the democratic process, thus rendering him an illegitimate president. If he is considered illegitimate, the court case will still go on even after he has been sworn in.
What happened in the event that the court eventually agreed with the petitioners that Tinubu was not validly elected according to the constitution? To avoid this awkward situation, that is why some people are suggesting that if Buhari must leave office by May 29, then we would start thinking of an interim national government. Reacting to an article in the said daily newspapers, I say that it is nonsense for anybody to say interim government is treason. My argument is that this matter in the court is part of the democratic process for producing leaders. If a leader doesn’t reach the end of the process and you swear him in, it tantamount to a coup by INEC. There is no way that a coup would be a legitimate government. I’m not saying I have the last word, but other people argue it. I argued it with some lawyers and they agreed with me, although I’m not a lawyer. I’m just following the logical sequence of what democratic elections are. If you organise an election and nobody is a clear winner, you either go back to the electorate to find out who they really want or you go to court to interpret some of the deeds that are in the constitution. Until you come out of the court, the democratic process of choosing a leader has not ended. Therefore, Tinubu has to wait until the court finishes their case, and the president has to stay until it is done.
What is your assessment of Buhari’s tenure ?
From 2015 till today, Nigeria has been going down to where we are. It is not something that one can describe in a few minutes discussion. You look at the economy, where were we in 2015 when he came in and where are we now in terms of GDP? In terms of the performance of the various sectors of the economy, in terms of money supply, in terms of interest rate, in terms of the investment climate of Nigeria. You take the issue of security, where did he meet the security situation in Nigeria in 2015? Is it better today than it was in 2015?
How many people were killed in 2014 by insurgents? If you go back to 2009 when Boko Haram actually started, how many people were killed all through Jonathan years? When he took over in 2015, how many people were killed from then till today? Was there banditry in Zamfara, Katsina, and other Northwest states? Were there unknown gunmen in the south? Were there AK-47 wielding Fulani herdsmen and the havoc they have caused? So you take any aspect of his regime, Nigeria has been going low.
In facts, the Obidients, the young men were just waiting to see the end of his rule and were getting ready to change the things in Nigeria, and that is why it hurts so much that INEC should rape the democracy of Nigeria by not allowing the electoral process to get to its logical end.
But Buhari has asked for forgiveness?
As a Christian, when a person begs for forgiveness, at my level, I should forgive him. The whole thing is in God’s hand. We voted for him and he has done his best and God has recorded for him what he has done to Nigeria. Who imported the Ak-47 wielding Fulani herdsmen into Nigeria? Who imported Fulani from West African countries into Nigeria to start disturbing indigenes? We thank God he has done his eight years, and let somebody else come and pick up the pieces and let’s repair this country.
After the election, there has been ethnic tension. What suggestion do you give to the incoming president on how to douse the tension?
Before anybody can do anything about the ethnic tension in the country, you have to find out what caused the tension. Supposed the person who is coming in is the originator of the tension in the country? Then as far he is concerned there is no tension. It depends on who eventually comes in. I cannot hazard a guess for anybody until we know who is coming in. Right now, I don’t know who is going to take over from Buhari; Atiku of PDP is in court; Obi of LP is in court, and APC is all over the place thinking that they would take over while the case is in court. If the Judiciary allows the APC to take over the governance of this country when the cases in court have not finished, then democracy is dead.
You have participated in the making of the constitutions of Nigeria. What is there that was not addressed, which is stilling causing agitations for restructuring?
The one I participated effectively was the 1979 constitution. Remember, it was a military regime. At the time we were going into the constitution making, the military wanted Chief Awolowo to chair the committee, but when he read what they wanted to achieve; that is to stage manage the constitution, he rejected the offer. He was working with Gowon and he had his own idea with Gowon about how to remake Nigeria after the civil war.
Murtala Mohammed wanted a constitution that will provide for a strong leader at the centre. Chief Awolowo didn’t agree with them that it was the kind of constitution we should have and so he declined to chair the Constitutional Drafting Committee (CDC). When he declined, they looked for somebody else with stature, this time around, not a person who was a politician, but a well known lawyer. That was how they went to Chief Rotimi Williams. When they proposed the American system, some of the lawyers and those of us from the university opposed it on the ground that we didn’t understand the American system the way we understood the British parliamentary system. Even at the CDC, opinions were divided on whether we should have the presidential system or go back to the parliamentary system.
Eventually, the constitution was drafted the way the military people wanted it, which was to provide for a president, somebody strong enough to hold the country together. While we were starting the drafting, the person who thought that he was going to be the president was killed, and that was Murtala Mohammed, but the CDC continued to do its work under his successor, Gen. Olusegun Obasanjo. CDC could not change what Mohammed had proposed. We still produced a presidential constitution based on the American constitution. Today, I have found out that it was a very big mistake because the American system of government that we practise, although it is democratic, is very different from the parliamentary system, which most lawyers in Nigeria who studied the British jurisprudence didn’t know much about the American system. Besides, a constitution is simply a framework within which the game of politics is played. The rule of law gives credence or life to the bare institutions that are naked in the constitution. That is the problem we have with whatever constitution we make in Nigeria. We have borrowed institutions and we don’t know and have not borrowed the spirit of the constitution. That is the problem we have with all the constitutions we have in Nigeria.
Were you not involved in 1999 constitution?
I was a member of a committee set up by Abdulsalam Abubakar called, Constitutional Debate Coordinating Committee. It means that people debated a constitution and then a committee was set up to coordinate that debate and bring the report. The debate was over the constitutional conference that Sani Abacha called and the draft Abacha constitution was what we were supposedly going to be debating. We were put together; we were divided according to what we now call geo-political zones.