29 Mar 2009 |
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Council of State, Electoral Reform And Ohakim By Reuben Abati The Council of State to which the decisions of the Federal Executive Council on the question of electoral reform had been forwarded for advice, acted ultra vires when it began to pretend that the body has certain superior powers. The spokesman for this meeting of serving and retired high-ranking public officials which was held on Tuesday, March 24, was Governor of Imo State, Ikedi Ohakim, (I shall return to him presently), and he had in reporting the outcomes used such phrases as "Council rejected", "Council decided". "Council directed", "Council approved." The Council of State is a creation of Section 153 of the 1999 Constitution; its composition and functions are spelled out in Part 1 of the Third Schedule to the same Constitution. It is expressly stated that the Council "shall have power to - advise the President in the exercise of his powers with regard to seven specific items - not the seven point agenda - but such issues as national population census, prerogative of mercy, award of national honours, the Independent National Electoral Commission (including the appointment of members of that commission), appointments into the National Judicial Council, the National Population Commission, and the maintenance of public order or "such other matters as the President may direct". The tricky thing about this Council of State is that the President is its Chairman and the Vice President, the Deputy Chairman. Thus the Council can serve as a vehicle for rubber-stamping Federal Executive decisions, or for merely creating the impression that on certain issues a broad consensus of senior citizens and stakeholders which include former Presidents or Heads of State, former Chief Justices, the Senate President, the Speaker of the House of Representatives, all state Governors and the Attorney-General of the Federation, had been secured. Taking a matter to the Council of State after a Federal Executive decision has been taken on it may also provide the President an opportunity to reverse himself and save face in certain respects, while pretending to be listening to other stakeholders. Whatever the truth is in this instance, what is known is that the Yar'�dua government is most reluctant, if not unwilling to take any radical step to transform the country's electoral framework. Twice in one month, the Federal Executive Council and the Council of State deliberating on the recommendations of the Electoral Reform Committee (ERC) have come up with resolutions which brazenly side-step two central issues, and they have done so on the grounds of specious arguments. It is therefore not surprising that the opposition is insisting that the ruling Peoples Democratic Party is determined to rig the 2011 elections, even if the Council of State reportedly "approved 80 per cent" of the resolutions of the Federal Executive Council. Public advocacy on electoral reform must still stress the point that neither the Federal Executive Council nor the Council of State has the final word on the content of that reform. The recommendations of the Electoral Reform Committee must still be debated by civil society and the National Assembly. And if there is any urgent assignment before the National Assembly, it is the electoral reform and Constitution amendment processes. Unfortunately we are saddled with a National Assembly and state legislatures with a wrong sense of priority. The point also needs to be made that time is no longer on our side. The campaigns for the 2011 elections have started already, and yet there is no credible electoral framework in place and all the issues for Constitutional amendment have not been addressed. Some of the recommendations of the Federal Executive Council and the Council of State include the setting up of new institutions, new functions and the re-introduction of the concept of independent candidacy. Time would be required to set up new bureaucracy, to fine-tune new processes and provide enough public enlightenment. But our governments are moving so slowly, they make the year 2011 seem like a distant time in the future. It is in the 2011 elections that we would pay the price for the tardiness of the last two years. And the obvious suspicion is that perhaps all the talk about Constitution amendment and electoral reform may end up again as nothing but mere talk. In recent times, there has been so much talk in particular about two Draft White Papers: a White Paper prepared by a team led by Defence Minister Shettima Mustapha, and another Draft White Paper by a review committee and which was endorsed by the Federal Executive Council. Both Drafts should be placed in the public domain for debate. For the 2003 elections, Nigerians used the Electoral Act 2002, for the 2007 elections, there was the Electoral Act, 2006. Is there a plan to ensure that the Electoral Act for the 2011 election will be dated Electoral Act 2010? Why do we leave nation-building issues till the last minute? How much truth do members of the Council of State tell each other? Was the Council meeting teleguided? What is the opinion of the Council of State on absentee ballotting and proportional representation? The Council of State and the Federal Executive Council deepen public suspicions further by insisting that the Chairman of INEC must be an appointee of the President. It is important to realise that allowing a neutral body like the National Judicial Council to select the INEC Chairman and make recommendations to the National Assembly does not amount to a conflict of functions or a reduction of the President's powers. COS and FEC have also resolved that election petitions can be determined for as long as the case drags, in order to protect fundamental human rights. I have argued before now that this would in fact promote injustice. And the facts are self-evident. But it is ironic that the man who was chosen to brief the press after the Council of State meeting was Governor Ikedi Ohakim of Imo state. If there was anyone in that meeting who should be clamouring for the total independence of INEC and speedy resolution of electoral disputes, it should be Ohakim. For close to two years, these two issues have brought him much heart-ache. Endless litigations over electoral matters in the Nigerian context derail governance. It can keep an unlawful claimant to the mandate in office for months and years, as we have seen in Anambra (under Ngige). But it can also make it difficult for whoever is in office to devote his energies 100 per cent to the task at hand. Ikedi Ohakim emerged as Governor of Imo state in 2007, in part due to the failure of the PDP and other opposition political parties to put their houses in order. But since Ohakim assumed office in 2007, he has not been allowed any moment of peace by all kinds of gladiators insisting on "their fundamental human rights" in the courts. On Monday, March 23, a day before the Council of State meeting in Abuja, the Court of Appeal sitting in Port Harcourt had upheld Ohakim's election as Governor of Imo state. The appellant, PDP's Ifeanyi Araraume had pleaded with the courts to annul the election of April 28, 2007 which brought Ohakim to power. The Court of Appeal, like the Imo state Elections Petitions Tribunal ruled that Araraume's petition lacked merit in every respect. Ohakim's supporters including a group called The League of Imo Professionals (Lagos Branch) have alleged in paid advertisements, that Ohakim has been the target of "legal chicanery and media terrorism", despite the fact that he has constructed over 300 km of roads in less than two years in office. I don't think the law or the media poses any problem to Ohakim, his enemies are the Imo state politicians for whom mischief has become a full-time enterprise. Perhaps, if Governor Ohakim and his challengers had been allowed to resolve all the legal cases before being sworn in, the Governor would by now have done even a lot more. Governor Ohakim should not have been the man to report a Council of State decision which allows election petitions to go on indefinitely. He holds the record of being the Governor with the largest number of litigations against his election: 17 suits and nine appeals! He has survived Araraume, but there is still another case in court by Martin Agbaso of the All Progressives Grand Alliance (APGA) who is asking the Court of Appeal in Abuja to rule that INEC had no powers to cancel the April 14, 2007 elections and schedule another election for April 28, 2007. The curious thing is that this same Agbaso who wants the April 14 election upheld, actually took part in the April 28, 2007 Gubernatorial election and lost. No one should underestimate the dynamics of an election petition process which is allowed to drag on for two or more years. The target of the litigation, be he a Governor, a legislator or a council chairman is forced to spend quality time that should be devoted to governance with lawyers and I hear - even soothsayers and prayer warriors. The litigation is of course funded with public resources, whereas if the process had been completed before swearing in, the litigation would have been part of campaign funds. I have also had cause to listen to some public officials who have had cases in court and it is amusing how they all manage to parrot the lingo of legal discourse. When some of them argue their cases before you, and they begin to quote legal authorities and principles, you would know immediately that they have been spending a lot of time with lawyers. The extended distraction is something that the Nigerian people, and even the politicians themselves can do without. Again, the over-flogged example of the United States comes handy. Once a public officer is sworn in, he focusses on the assignment, he or she becomes part of an American team. There is no team spirit in the Nigerian governance process because the present structure for resolving election disputes is faulty. And let the point be made again, that an early and expeditious resolution of electoral disputes does not violate human rights in any way. What is important is the quality of the process of administration of justice. But the present situation whereby in so many states, there is greater focus on the court room rather than the governance process is undesirable. Twenty two months after the election of 2007, Governor Ohakim is still in the courts. If he had lost the case with Araraume, the people of Imo State would have had to start afresh, and Araraume would have had to contend with the outcome of the Agbaso case, creating a regime of uncertainty, that clearly does not serve the people's interest. Ekiti state is just as troubled. There is similar uncertainty in other states. Today, nearly every Imo state man or woman that I know is a legal expert. The entire state is now such a big courtroom that even motorcyclists are said to be emotional about the outcomes of electoral disputes. The good thing however is that there has been no break down of law and order in spite of all the political conflicts. Ohakim read the report of the Council of State meeting, I guess, out of a sense of duty. A week after he assumed office as Governor of Imo state, a mysterious fire gutted the Governor's Guest House where he and his family were staying temporarily. Not long after, the Governor's office was also gutted by fire. His supporters attribute all of these to his enemies. However, in-between court cases, and fire-fighting on many fronts, including having to manage a problematic state House of Assembly that can pass a resolution on anything, and rebellious okada cyclists, Governor Ohakim still manages to come across as a man who truly wants to add value and make a difference. But don't envy him. Being a Governor should be an opportunity to serve, not a test of human endurance, not an opportunity to feel like a victim. Ohakim's case proves the urgency of the need for electoral reform, particularly the need for an early resolution of election disputes. It even proves the point about the need to ensure that the National Electoral Commission is not tied to the wrapper of an over-bearing or power-conscious President who may be tempted to run Imo state or any other state from Abuja.
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