TRANSCRIPTS OF INTERVIEW GRANTED BY ATTORNEY
ALOY EJIMAKOR
TO MEMBERS OF THE NIGERIA MEDIA ON THE
2007 ELECTIONS
AT ABUJA ON FEBRUARY 10, 2008
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Q: After so many years in America, you are just back into country. May we
know you?
A: My name is Aloy Ejimakor. I reside in the United States where I have
worked as an Attorney since 1995. I am the Convener of the Organization of
Nigerian Lawyers in Diaspora. We monitored the 2007 elections and with regard to
the many difficulties encountered with the elections, my attitude and that of
most prominent Nigerian Diaspora is that Professor Maurice Iwu and his team at
INEC did a marvelous job of transiting Nigeria from one civilian regime to the
other. And this view is shared by many top American policymakers and opinion
leaders with whom I am familiar – a shared viewed helped mostly by a team of
Nigerian and American Lawyers I co-led to Senator Russ Feingold’s office on July
27, 2007 to make a case for a constructive engagement of Nigeria’s electoral
issues instead of the opposite view canvassed by the opposition, which surely
would have isolated and hurt Nigeria. I believe that the shortcomings noticed
during the elections are insufficient to warrant isolation of Nigeria or
nullification of the election. Therefore, in deciding the ongoing election
petitions, the tribunals are expected to be averse to some notion of strict
liability for every violation of the statute, unless there is robust evidence
that the violation substantially affected the outcome of the election. With
particular regard to the presidential election, it is my considered view that
the Tribunal should let it stand. And if this should happen, it will represent a
complete vindication of Maurice Iwu because the presidential election is the
only one over which it can be argued that he had complete legal control as the
chief returning officer as opposed to the governorships which were statutorily
under the exclusive control of the Resident Electoral Commissioners for the
states.
Q: How would you compare anticipation of justice between America and your
native Nigeria?
A: In terms of core legislations and black letter law, there are several
similarities. And of course, our Constitution is a version of the US
Constitution, as amended and interpreted over the centuries. But where the
difference is marked and clear is in terms of the many nuances brought by
America’s pure federalism as opposed to Nigeria’s, which still lacks some of the
core elements of a truly federal system. And then there is the irony. Before the
2007 elections, the then AGF Bayo Ojo issued advisory opinion to INEC to follow
through on the indictments issuing out of EFCC, the Commissions of Inquiry, and
the White Papers, all as grounds of disqualification to run for office. This is
besides the string of Appeal Court rulings sustaining INEC’s power to disqualify
or exclude for cause. Professor Maurice Iwu did the right thing by adhering to
the legal advice of Nigeria’s chief law officer, having been emboldened by the
Courts of Appeal. In the US, the election umpires would have also done the same
thing. This comports with modern notions of constitutionalism. The difference is
that in Nigeria, everyone now seems to have ignored this and taken to
criticizing Maurice Iwu as if he acted arbitrarily; whereas, in the US, if the
disqualifications or exclusions turned out to be wrong, it is the AGF or the
judiciary that should become the fair target for criticisms, if at all.
Q: Does the United State have an electoral body, and what about qualification
to run for public office
A: Yes, it does, but with nuances, of which some, if not most, will definitely
work for Nigeria. For instance, the Boards of elections for the counties have
some oversight of the party primaries or caucuses for nomination of candidates.
This helps to ensure that political parties conform to their own rules of
engagement. My research tells me that Professor Iwu is poised to introduce this
concept in the by-elections that will come soon, beginning with the Kogi
governorship re-run; and hopefully, with him in charge of the 2011 elections, I
am sure Nigerians will as soon see lots of innovations, assuming that
politicians get beyond petty ambitions to trust Iwu and give him the free hand
to do his job. Don’t forget that Maurice Iwu lived in America before all these,
and that was what prepared him for the Electronic Voting system and other
innovations he proposed but which the National Assembly rejected for some
reasons that are beyond me. But most importantly, the election bodies in the US
are permanent and uninterrupted institutions that are permitted to self-reform
without having to be re-constituted all the time with new Chairmen and whatnot
that will again begin to learn the ropes anew. When it comes to qualification to
run for public office, America, just like any other morally upstanding modern
society has some strict rules, mostly bordering on moral turpitudes. For
instance, a felony conviction, not only disqualifies you from holding public
office for the most part, but also bars you from voting; and you don’t need the
courts to tell you that.
Q: What are your views on the nullification in Kogi and the others that might
come?
A: Anybody gleefully rooting for a rash of nullifications should also
contemplate the spectre of no-election or the grave nullification of Abiola’s
election in 1993. Therefore, as the Tribunals weigh the various requests for
nullification, the learned justices will do well to consider the uniqueness of
the Nigerian federation, and consider whether the framers of the Electoral Act
really wanted otherwise good elections to fall for every infraction. One might
say with some justification that some isolated cases of exclusions or other
irregularity merely constitute technical violations or omissions of ordinary
course that can hardly justify the extraordinary remedy represented by
nullification. In the United States, the learned justices there call such
technical violations ‘excusable neglect’, and as the phrase implies, they are
excusable, and if standing alone, can never be seen to strictly require quashing
the outcome of an election. With regard to the Kogi case, there is some merit to
the opposite argument that the exclusion was in order because it was valid under
law when it occurred. If you read the analysis of the learned justices in that
case, they stated clearly that INEC just complied with the extant law at the
time it disqualified the candidate at issue but that the tribunal felt compelled
to nullify solely on the strength of a contrary ex post facto Supreme Court
ruling - meaning that the Supreme Court ruling is being applied retroactively.
This is the kernel of the ruling which the media needs to stress to the Nigerian
people for a better understanding and debate of the legalities of the 2007
elections. Blaming Maurice Iwu or INEC for merely acting within authority of
extant law won’t cut it.
Q: Are you are saying that the Tribunals might be applying laws
retroactively?
A: This is one important area the Electoral Reform Committee needs to look at so
that Tribunals are not forced by passage of time into rendering judgments that
tend to confuse our strict constitutional system by raising the spectre of
retroactivity of laws – be it legislation or a judge-made law. A democracy
should be very conscious of rejecting any notion of retroactive application of
her laws. Better practice seems to support the postulate that if your rights
were breached by some law that is no longer good law, then you try your hand
next time around and you could prevail on the tenor of the new law that now
favors you. The right to hold political office can never be said to be so vested
and absolute to the point that Nigeria must pedal back all the time to
accommodate every infringement, otherwise we may come to the point where a Shehu
Shagari and others who lost their constitutional tenure and mandate due to
illegal and violent sack of their government may begin to file legal actions to
be restored to office. The dangerous judicial remedy of mass cancellation of
elections in a young and fragile democracy like Nigeria requires more
circumspection and judicial conservatism than the need for the judiciary to be
seen to be independent. Ours laws must be interpreted in ways that must not
threaten our survival as nation.
Q: It seems the Tribunal rulings have put INEC in very bad light before many
Nigerians
A: Yes, because of the general tendency to spin, parse and distort. And the
media has not fully explained the true meanings of these rulings to the average
lay Nigerian. But those who have devoted some intellectual downtime to studying
the rulings are likely to posit that INEC and Maurice Iwu should never be blamed
for what happened. Election flaws or exclusions have been discussed enough, and
again, in a way that seems to ignore the duplicity of the political class – all
in an attempt to single out one man for scapegoating. And the secondary point to
consider is that we may have come to the point that endangers our democracy and
stability should we continue to so carelessly continue this voyeuristic
harassment of INEC and the government of the day. Whilst some people might
recoil at my directness, candor and neo-legalisms, I will be mindful to put
matters into proper legal context and hope for a better and richer understanding
hereafter. Nigeria should not be belittled for the historic leap it made with
the 2007 elections.
Q: What is your advice to politicians, the political parties, PDP, AD,
political class generally?
A: For most of the West, especially the European Union, there is this rampant
tendency to rush to conclusions that elections held in countries that the West
fears, loathes or does not understand are never free and fair. The West does not
understand Nigeria. If you don’t know by now that the West considers candidate
Abubakar Atiku pro-West and President Yar’Adua, a closet anti-West or too
Islamist (and frugal, meaning - a radical socialist that may prefer China), then
you have not been reading everything out there. And more to the point,
Yar’Adua’s fiscal conservatism in Katsina when he was Governor was mis-characterized
as neo-socialist by a naïve West that looked forward to an Atiku they believed
through his PR spin in the US to be anti-socialist and thus more representative
of any Western desire for a President likely to draw down Nigeria’s hard
currency reserves to finance high technology acquisitions from the West.
Therefore, our politicians need to do some serious contemplation of their
patriotic duty and remain vigilant to protecting Nigeria from the sort of
misguided interference in our electoral process that led to the debacle in
Kenya. In other words, we should learn to accept our democracy as it is while
working patiently towards attaining the idealisms and stable order that took a
helluva of political hard work and give-and-take to achieve in other climes that
started before us. All victories or good things don’t have to come in our
lifetime.
Q: What is your take on the petitions challenging Yar’Adua’s victory?
A: Let me put it this way. That Dr Orji Kalu and other odd 50 presidential
candidates did not file petitions against Yar’Adua is relevant and probative
evidence that the presidential election must have passed statutory and political
muster and impeaches the merits of any claim to the contrary. Concession of
defeat is the first starting point to determining the legitimacy of an election,
and concession by some fifty candidates is some concession indeed and cannot be
ignored when deciding whether the election should stand or not. In the United
States, Al Gore’s initial concession of victory to Bush based on initial results
collated from statute-mandated machine count of the ballots as opposed to a
manual recount was part of the material evidence that emboldened a
politically-conscious US Supreme Court to stop the recount and affirm the
initial declaration of Bush as winner. As regards our own, AC and ANPP’s poll
agents accepted and signed off on the REC-collated final results of the
presidential poll before Maurice Iwu went to press with it. So, how can anyone
now claim that there was no election in more than 29 states when their agents
had contemporaneously signed off on the results of elections conducted in those
states? What happened to the basic law of agency that binds a principal to the
actions of his agent? And if you look at the spread of the party’s performance
in the state/national assembly and governorship elections, you will notice that
the parties maintained just about the same number of votes they garnered in the
presidential election. If aspects of the election were rigged, I would say they
are too minuscule to constitute grounds for disturbing the final outcome. This
does not mean that the Tribunals or the Supreme Court should go wholescale
political but it will be naïve and suicidal for our political order if these
petitions are lent completely to the absolutism of strict legal solutions
without regard to the unique political history of Nigeria. Mistakes are bound to
be made along the way, but as good and conscientious citizens, we will all do
well not to overplay them.
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