Mr. Emeka Etiaba is a Senior Advocate of Nigeria whose practice spans various parts of Nigeria. He spoke with AMEH EJEKWONYILO on a number of issues including the sack of 13 Vice Chancellors of Federal Universities by the Federal Government, the killing of unarmed pro-Biafra agitators by the military in Aba, Abia State as well as the allegation against Senior Lawyers of frustrating anti-graft war that was credited to the acting Chairman of the Economic and Financial Crimes Commission (EFCC).
In the wake of scathing comments that have trailed the judgments of the Supreme Court on some governorship appeals, is the apex court on trial?
First and foremost, I can assure you that the Supreme Court is not on trial. Whoever says the Supreme Court is on trial is thinking too highly of himself or herself. The Supreme Court cannot be on trial.
Recently, I did say that Nigerians are unduly getting sensitive on issues that ordinarily are not their business. It is only in Nigeria that a non-lawyer would analyse the judgment of a court of law. It is only in Nigeria that a lawyer who is not in practice would analyse the judgment of the Supreme Court. But talking about the Supreme Court and the judgments we have had so far, especially as it deals with election appeals, I would classify the critics into two: the first is the non-lawyers (the politicians) who themselves are the dramatis personae. The politicians are people who live under pressure and wherever you see them, they want to foist that pressure on the system. The politician mounts pressure on his political party to give him ticket to run in an election. When he gets the ticket, he mounts pressure on the Independent National Electoral Commission (INEC) to declare him winner whether he wins or not. And from there, he approaches the tribunal or court for some declarations. He transfers the same pressure to the judiciary; and at the end of the day, if he goes to the Court of Appeal or Supreme Court as the case may be and he does not have the benefit of the judgment, he begins to criticize the judgment that it was sold; it is a product of bribery and corruption.
For politicians, my attitude is they can continue to talk. I only get worried when I hear lawyers begin to criticize the judgment of the Supreme Court.Whether they are Senior Advocates or senior lawyers or not, many of those lawyers have not had the requisite experience or knowledge in election matters. Election matters are peculiar cases. For instance, election petition is not a civil matter and it is not a criminal matter. It is like an amoeba; it turns to whatever it wants to turn to.
Election in particular starts up as a civil exercise, and then it gets to some point the politicians with the help of thugs armed, begin to buy votes and steal votes as well as compel INEC officials to write results for them. Then it assumes criminal dimension. People, including lawyers, criticize the judgments of the Supreme Court even when the court has not come up with their reasons for delivering the judgments they have delivered.
Some people ask why should the Supreme Court deliver judgment today and give reasons tomorrow. That is also a product of ignorance, because election appeals have a 60 day period. So, you must conclude it in 60 days. So, you must give your judgment before the expiry date of 60 days. You can give the reasons after 60 days. Remember that with the Supreme Court, you don’t have any other appeal to go to. So, you won’t insist that the reasons be given that day because you are not looking at formulating a notice of appeal. You now see that people criticize even when they don’t know the reasons, and when the reasons come, they don’t bother to look at them.
Some people have alleged that those judgments were pro-Peoples Democratic Party (PDP), but they have forgotten that Kebbi, Ogun, Benue and quite a lot of states that got judgment from the Supreme Court are not PDP controlled states. If you look at what the Supreme Court does, their judgments are based on principles of law already settled.
What are some of the issues that were determined by the apex court in the governorship appeals?
The major issue they settled in all the petitions is the Card Reader machine. The Card Reader is an innovation made by INEC which is commendable. If you watched the election in Uganda, you would have realised that they used the Card Reader. It is not a new thing but it is new in Nigeria. But the problem that INEC and the political parties ran into with Card Reader is that, INEC introduced the card reader but it was not enshrined in our law.
The Electoral Act has a particular provision under section 49, which provides that whoever wants to vote should come to the polling booth with his voter’s card and the INEC official will collect the voter’s card and look at the particulars in it and look at the voter register if they tally.Then he will go ahead and allow the person to vote. If you look at the voter register, there are two places where you mark. The first is after the accreditation. So as you are accredited, your column is ticked and when you come back to cast your vote, the second column is ticked. The Electoral Act says, that is the way to establish that one voted in an election. If you want to prove over-voting, it is that particular document that you will rely on but unfortunately a technology came which amplified the whole thing but didn’t have the backing of the Electoral Act.
A lot of lawyers went and founded their election petition on the non-use of card reader. What happened? They got to court and realised that they were on a shaky ground and the Supreme Court said, in as much as the innovation is good, you cannot annul an election based on a card reader report.
I will also give you an example. In some of those petitions at the tribunal level, what the lawyers and the petitioners alleged was that there were no elections. You alleged that there were no elections, but you come to court and tendered card reader report that shows that there was accreditation and voting. How then can you sustain your claim of no election? But a lot of people because they heard that there was violence, they thought that what the court was judging was violence. The issue is not whether there was violence or not, even when there are cases of violence in an election, they do not amount to disqualification of anybody or annulment of an election until you prove the substantiality of the violence, that the violence really marred the election by demonstrating it.
How do you demonstrate electoral irregularity before the tribunal?
You demonstrate it by calling witnesses polling booth by polling booth; by showing that they brought out ballot box here, and when we came to vote thugs came and dispersed everybody.
Is it possible to demonstrate electoral irregularities polling booth by polling booth within the stipulated 180 days that a tribunal has to conclude its sitting on such a petition?
You are raising another issue which should be attended to by the laws, but this is what the law tells you that you should prove it polling booth by polling booth. This particular principle that you prove electoral malpractice polling booth by polling booth was not actually enunciated today. Over ten years ago in the case of Buhari against Obasanjo, one witness, Mr. Lawal came and gave evidence in over one thousand polling units, and the Supreme Court said no, you can’t be a spiritual witness. It is only the Holy Spirit that can be at different places at the same time. That judgment has been developed on. It has now been set aside down to Gundiri v. Nyako, you prove an anomaly in an election polling booth by polling booth. But rather than do it, what petitioners do for want of time is, they get all the result sheets, give them to somebody who said he was the collation agent of the candidate, he comes and tenders them in court, and the court will tell you that if you are not a maker of a document, you cannot tender it. And perhaps if a court admits it in evidence, it will have no probationary value because you cannot be cross-examined on it. These are the principles.
What is your perspective on the conflicting decisions of the Court of Appeal in respect of the non-compliance with the use of card reader for elections?
You call that court, Court of Appeal but the Supreme Court is Supreme. They (Appeal Courts) tried their hands on the law they know. Don’t forget that card reader only emerged in this last election. So, the Court of Appeal justices did not have the precedent to rely on. It is only when a judgment has been delivered on a certain principle that you can fall back on it, but if it is a new issue, as different as our faces are, so our perception could be. So, you find this panel saying, ‘card reader cannot be used to annul an election,’ but the other one says, ‘card reader captures it all.’
It takes the Supreme Court to make a pronouncement on an issue and everybody will queue up, and that is why we have that principle called, ‘stair decisis’, that is, lower courts must obey the judgments of superior courts.
What do you make of the recent killing of some IPOB agitators who were praying peacefully at Aba by the military?
The problem we have is that sometimes you find our law enforcement agents being overzealous. I’m sure nobody instructed them to go and shoot anybody. These are the abuses that you see every day. But having brought it to the fore, I hope that there will be very strict instructions that such actions do not repeat themselves. But it is sad that unarmed civilians would be shot or dealt with violently.
The acting chairman of the Economic and Financial Crimes Commission, Ibrahim Magu recently accused some learned SANs of receiving tainted briefs from allegedly corrupt individuals with a view to pervert the course of justice. What do you say?
I think the EFCC Chairman is taking the matter a bit too far. Lawyers are not trained to do that and when somebody finds out that a lawyer has done it, it behooves on him to mention names not to taint everybody because the mood of the EFCC now is when you announce that you are representing a suspect, they brand you as unpatriotic; they see you as being against the fight against corruption.
But for me, I do not mince words when I say that the fact that a person has been accused of a crime does not mean the person is guilty of that crime. We have to go ahead and prove it. I have said it and I will continue to say it. Mr. Magu is the acting Chairman of the EFCC today, tomorrow he may leave that office and he is invited just like they are investigating the former EFCC Chairman, Ibrahim Lamorde. He (Magu) could be investigated and he finds himself coming back to make a few explanations. If at that point he needs the services of a lawyer, would he say that ‘no I don’t need a lawyer’, or would he say he is not entitled to a lawyer? If lawyers now boycott his case, how would he feel?
What I take from what he says is more like a spirit of persecution not prosecution. It is persecution; even people who commit murder are entitled to legal representation. A lawyer is not going there to say ‘no, don’t convict him, he didn’t kill.’ The lawyer is going there to say, ‘this is the case of this man, look at it and see what resulted from his action amounts to murder.’ There are times you establish that somebody killed someone, he is charged for murder and court says ‘no, this does not amount to murder, it is manslaughter.’ Both normally result in death of somebody but the court says no, this is not murder case, it is manslaughter. What if a lawyer did not defend that person to be able to canvass the facts of the case, so that the court will know whether this is a proper case of murder or manslaughter or death by accident which can happen to anybody.
So, Magu is taking it too far. If he knows the lawyers who are on the wrong side of the fight against corruption, you can go ahead and mention their names and say what they have done.
What is your opinion of the flagrant disregard for court orders by some government agencies?
The Nigerian Bar Association has taken their stand on it. They have rejected it; they have called the President of the country to stop the security agencies from so doing. That laws are meant to be obeyed and when it comes to court orders, they should be obeyed. There should be no reason why any court order should be flouted.
Can one seek legal redress in the event of violation of the principle of Federal Character in the appointment of persons into key government positions?
Yes, one can seek redress in court. But where we are today, we have found ourselves at a cross-road. Each time the government takes a decision and you criticize it, you are deemed not to be patriotic.
For instance, the dollar is exchanging for about N391 to $1, rather than the government looks for a solution, they are saying that if Goodluck Jonathan were to be the President today, it would be N1000 to $1. Are they facing reality? They are not facing reality. Rather than the government being worried, the same government tells you that if Jonathan was here, it would have been N1000. Does it not sound crazy?
So, when they say these things, you see that we are into hard times because nobody is looking at what is happening. When you talk about things been bad, they say ‘PDP caused it.’ Are we still living in the past? When you were seeking for power, didn’t you know that things were bad? We all need to pray for the country.
What is Nigeria’s position on the UN Declaration for self-determination viz-a-viz the Biafran agitation in the South-East?
Nigeria is a part of the UN. The only problem we have, especially with what my brothers are doing is that we are not taking the path of constructive reasoning. If you look at the Nigerian nation, you will find out that the Igbo man is the only man who lives in any part of Nigeria, and when he gets there, he begins life as if he belongs to that community.
So, in taking decisions on whether Biafra is subsisting or not, we should also look at the commitment we already have in every part of the country, but I must tell you that whether they are right or wrong, the Nigerian nation is the one causing the problem. You look at what is happening in the country and you will find out that there are certain things that shouldn’t happen. If the government runs a country that is based on fairness nobody would be agitating to go anywhere.
For instance, each time you hear that there is a breakthrough either in Nigeria or outside the country, look at the name of that person; in 10 cases, 8 will be Igbo people be it in technology, science or in law. Then you ask yourself, why would a government come into power and the first 27 appointments there is no Igbo man there, and the government is says we are looking at getting the best hands to run this country and then no Igbo man is qualified.
How do we address this problem?
It is for the powers that be today to look at the equation. It is very simple. Look at what is going on now, 13 Federal Universities, there Vice-Chancellors were sacked. From one university in the North (Bayero University), they took four people. These things are issues that when people look at them, they shudder why it should be.
Can the sacked Vice Chancellors sue the Federal Government for unlawfully dismissal?
In law when an appointment is tenured, you cannot as the Chief Executive arbitrarily remove that person. That is what we call ‘impeachable offence’. When you go on on that tangent, you are committing because it will not go down well. But we are in interesting times, these things happen. If you talk, they would say you are anti-government; that you don’t want change.
No comments:
Post a Comment