By Sylvester Udemezue
There was this report: “Swearing in Tinubu’ll end democracy in Nigeria Baba-Ahmed, LP VP candidate warns” (23 March 2023; sunnewsonline) wherein the Vice Presidential Candidate of the Labour Party in the 2023 presidential election in Nigeria, Yusuf Datti Baba-Ahmed was reported as having warned thus: “Nigeria’s democracy was under threat unless steps were taken to address the flaws that saw the Independent National Electoral Commission (INEC) declaring All Progressives Congress (APC) candidate, Bola Tinubu, as winner. He opined Nigeria has no president-elect given the irregularities and breach of the Electoral Act and Constitution of Nigeria in declaring Tinubu winner. He warned that democracy could “end” on May 29, 2023 if Tinubu, who he claimed had not met the constitutional provisions to be declared winner of the February 25 poll, is inaugurated”. Yusuf Baba-Ahmed’s own words, according to the report: “As it is in Nigeria, there is no president-elect. An unconstitutional government must never be sworn in because that will be the end of democracy. This democracy will end on May 29 the way we are going….It is unfortunate, tragic that all promises that were made were dashed”._ He predicated his argument on the premise that it was reckless, “unlawful and unconstitutional” for INEC to have declared Tinubu the winner of the 25 February 2023 election in Nigeria.
Now, varied interpretations and insinuations have trailed the declaration by Datti Baba-Ahmed. While some say it’s a call to anarchy, seditious being an incitement of some sort, some others have argued that what he’s saying is that if you swear in a leader elected through a process that subverted rule of law and democratic norms, you’ve “ended” democracy, which perhaps is merely another way of saying that such a government cannot be described as a democratic government. The declaration by an Italian writer and scholar, Pope Pius XI (1857 – 1939), that “justice requires that to lawfully constituted Authority, there must be given that respect and obedience which is its due…” raises some further question as to the place of the expression “lawfully constituted authority”. Is it not possible that what the latter group is arguing is that Mr Datti Baba-Ahmed perhaps believed that any process that failed to comply with the clear provisions of the extant laws of the land, cannot validly or truly be described as a “democratic process”; thus it might amount to “ending democracy” to swear in a candidate who emerged through such an “unlawful and unconstitutional” process, especially at a time when the process is still being challenged in court. Viewed from this angle, this group argues that it’s very wrong for anyone to describe Datti Baba-Ahmed’s statement as inciting or amounting to any support for an interim government which by the way he has no power or capacity, in any manner, to install or even plot. However, in my opinion, only Datti Baba-Ahmed can tell the exact motive behind his declaration, although the intention of a speaker is more often than not, deciphered from the actual words spoken or written.
This said, let me now go straight to the three-thronged aim/purpose of the current commentary, namely:
(1). Offering my own opinion on the legal merits of the suggestion by Datti Baba-Ahmed on the planned swearing-in of Bola Tinubu;
(2) Analysing the legal limits of Datti Baba-Ahmed’s right to make the statement in the manner he has done, under a constitutional democratic setting such as Nigeria purports to be; and
(3) Examining Datti Baba-Ahmed’s comment and the context, to determine whether the same could reasonably or objectively be said to amount to “sedition”, as some have alleged.
(1). LEGAL MERITS OF DATTI BABA-AHMED’S OPINION:
The position of the law as I see it is that, if the lawsuits pending before the Presidential Election Tribunal over the 25 February 2023 presidential election, are not resolved one way or another before 29 May 2023, Asiwaju Bola Ahmed Tinubu should be sworn in on 29 May 2023, pending resolution of the lawsuits, Tinubu having been declared the winner of the election. My reasons:
(A). Nature abhors vacuum. If Asiwaju Tinubu is not sworn in on 29 May 2023, there might be a vacuum/void in governance in Nigeria because Mr President Buhari ought to vacate the office on 29 May 2023. A country should never, at any time, be left without a leader. However, some have argued that, although section 135(2), CFRN 1999 provides that *”Subject to the provisions of [section 135(1)]”, the current president *”shall vacate his office at the expiration of a period of four years commencing from the date when he took oath of allegiance and oath of office”* [the 4-year terminates on 29 May 2023], yet the president could lawfully be made to hold office until the next president is sworn as allowed by section 135(1)(a) of the Constitution which provides that “… a person shall hold the office of the president until when his successor in office takes the oath of that office”. This is especially so, considering that section 135(2) would ordinarily give way to section 135(1)(a) in any case of conflict between the two, because section 135(2) is stated to apply “subject to” section 135(1) meaning that section 135(1) is superior to section 135(2) of the Constitution. While I agree that by virtue of section 135(3), the National Assembly may by resolution extend for a period not exceeding “six months”, the tenure of office of the president, the thorny problem (with the argument for extension to enable resolution of pending election lawsuits) is: under what circumstances may it be lawful to make the current president to hold office beyond 4(four) years”? Luckily, section 135(3) lists out such circumstances that may justify extension of the president’s 4-year tenure, but unfortunately does not include nor envisage the current scenario (when the election process that produced the President-elect is being challenged in court). According to section 135(3) the National Assembly may invoke this power to extend the current president’s 4-year tenure only “If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections”.*_ The Constitution interpretation Rule of Exclusio unius est exclusio alterius is derived from a Latin term literally meaning “the expression of one thing is the exclusion of the other”. This is a common law principle for construing legislation which holds that a syntactical presumption may be made that an express reference to one matter excludes other matters not expressly or impliedly mentioned. I submit that this principle applies here. Besides, the the lawmakers must be held to have said what they meant and to mean what they have said as seen in the plain words of section 135(3) of the constitution. The only way to lawfully stop such swearing in pending resolution of pending election petitions is by amendment of the 1999 Constitution and the Electoral Act 2022. Unfortunately,such an amendment even if carried out this time, would not apply to Tinubu’s scenario in view of the concept of non-retroactivity of legislation. Thus, it’s reasonable to conclude on this point, that while the National Assembly is entitled to extend Mr President’s tenure of office beyond 4 years, yet where an election has already been held and a winner declared by the INEC, the National Assembly is NOT entitled to invoke the provisions of section 135(3) of the Constitution to stop inauguration of the declared winner of the election; it’s immaterial that the election is being challenged in court. This means that the current president must vacate the office on 29 May 2023, and the President-elect must be sworn in on 29 May 2023, pending resolution of pending lawsuits, unless anyone of the following happens:
(I) the President-elect (God forbid) dies before 29 May 2023 in which case the Vice President-elect must be sworn in his place on 29 May 2023 in line with section 136(1) of the Constitution;
or
(II) both the President-elect and the Vice President-elect die or are unable to for any reasons whatsoever to assume office before the inauguration of the National Assembly, in which case the INEC must conduct a fresh election in line with section 136(2) of the Constitution.
As it stands today, since (a) an election has been held, a “winner” declared by INEC, and since nothing has happened to warrant the invocation of any of the circumstances listed in section 136 of the Constitution, it’s consequently submitted that the declared winner must be sworn in on 29 May 2023, unless and until an election tribunal or court gives a contrary directive.
(B) The Candidates of the Labour Party (LP), People’s Democratic Party (PDP), among others, and their respective political parties, have already instituted lawsuits at the relevant Election Tribunal (in line with section 130 of the Electoral Act, 2022) to challenge INEC-declaration of Asiwaju Tinubu as the President-elect of the Federal Republic of Nigeria. The mere fact that these opposition/aggrieved parties have filed lawsuits challenging the INEC-declaration is a sufficient admission or acknowledgement by the Claimants/Plaintiffs (technically called Petitioners) that Asiwaju Tinubu has already been declared the winner and is accordingly the President-elect, who alone is entitled to be sworn in on 29 May 2023, to avoid a vacuum in governance pending resolution of the pending lawsuits. The Claimants are therefore under an obligation, having submitted their grievances for judicial adjudication or determination, to maintain and respect the status quo pending the determination of the cases in court (the tribunal). This does not mean that the Claimants have accepted the declared winner as the next president, nor that the Claimants have accepted the process that produced him, but that in the eyes of the law, whether the declaration and return made by the INEC was lawful or unlawful, the declard winner (Asiwaju Tinubu) is and remains the President-elect, and unless the Court says otherwise, ought to and must be sworn in on 29 May 2023 pending resolution of the disputes in court. I have earlier submitted thus:
“I think section 138 of the Electoral Act provides a reasonable guide under the circumstances. If as is provided by section 138, a candidate whose election has been declared VOID by the tribunal, could still stay in office pending resolution of the appeal arising from the tribunal decision, there appears to be no good reasons to support any view that a person whose election is being challenged at the Tribunal on grounds that the election was unlawful or that his declaration was unlawful, should not be sworn in pending resolution of pending lawsuits”. [see: “The Arise Tv Interview And Likely Holes In Agbakoba (SAN)’S Suggestions On Upshots Of Nigeria’s Presidential Election 2023”; By Sylvester Udemezue; 06 April 2023; ThenigeriaLawyer].
(2). Legal Limits Of Datti Baba-Ahmed’s Freedom To Make The Statement Credited To Him Under A Constitutional Democratic Setting:
While I disagree with Yusuf Datti Baba-Ahmed’s opinion (it’s a mere opinion) that Tinubu should not be sworn in until the determination of the cases in court, I refuse to agree that his said statement, even if considered harsh, hard or extreme, has violated any law in Nigeria or that it is outside his rights as guaranteed in section 39 of the 1999 Constitution. It’s also my opinion that the statement does not constitute any form of incitement or threat to peace and order in Nigeria. I see the statement as nothing more than Mr Yusuf Datti Baba-Ahmed’s opinion in a manner he thought necessary within the limits of his rights as guaranteed by the constitution. Thus, whether we agree with him or not, we must respect his constitutional right to freedom of speech and expression. We must learn to respect people’s right to hold their individual opinions, however good, erratic or even unfavourable we may consider such. We have a duty under our laws and our democracy, to give people the liberty to know, to utter, and to argue freely according to their conscience. This liberty ranks above all liberties; it is slavery to stop people from voicing out their thoughts and grievances in a manner permitted by law. In his work, the “Silence Dogood”/“The Busy-Body”/“Early Writings”, Benjamin Franklin warned that “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” According to George Washington, “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter”.
With these in mind, those in authority and everyone else, should learn to respect the right of others to freely offer their opinion even if we think they’re talking utter nonsense. Perhaps, this is the reason Oscar Wilde would say, “I may not agree with you, but I will defend to the death your right to make an ass of yourself.” The English physicist, Professor Edward Cox, even took it to the extreme, just to illustrate why is freedom of speech is an important part of every democratic setting. Hear him:
“The problem with today’s world is that everyone believes they have the right to express their opinion AND have others listen to it.The correct statement of individual rights is that everyone has the right to an opinion, but crucially, that opinion can be roundly ignored and even made fun of, particularly if it is demonstrably nonsense!”.
Section 39 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides that ”every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” As ‘Voltaire’ was stated to have declared, ”I May Disapprove of What [One] Says, But I Will Defend to the Death, [One’s] Right to Say It”. For example, you can’t after perpetrating acts that run contrary to established constitutional democratic tenets, then turn around to blame or castigate people who are merely genuinely and lawfully raising issues/concerns about the undemocratic nature of your actions. Ralph Waldo Emerson said: “What you are speaks so loudly I cannot hear what you say” (See: Lloyd Paul Stryker, The Art of Advocacy [Cornerstone Library, 1954], 147). This is the best statement to describe what happens in Nigeria’s electoral process; the corruption and impunity appear have grown so deep and intolerable that many no longer care to listen to the obviously hypocritical preachment on “let’s let go in the interest of unity and peace”, which usually comes after each round of abuse and desecration of the electoral process. And, this, more than anything else, is the reason we have found ourselves at crossroads now, with all people making all kinds of comments to express their frustrations and disenchantment with the system. I suggest we view Yusuf Datti Baba-Ahmed’s comments in this light, and allow him to be; you can’t beat a man and expect him to not cry. I think he feels injured and is only expressing his feelings. We must learn to give others the freedom to be themselves, and learn also to appreciate the differences between other people’s ways and ours, so that we would be wiser and greater. To suppress free speech is, more often than not, tantamount to committing a double wrong: it violates the rights of the hearer as well as those of the speaker.
With due respect, it is cruel, nasty, delinquent, irrational,and malicious, on account only of the said declaration, to accuse Datti Baba-Ahmed of inciting or plotting an interim government; moreso considering that Datti’s argument could even be easily be situated (even if wrongly) within section 135(1)(a) of the constitution to mean that the present president could be made to remain in office until resolution of the pending presidential election petitions ( I have offered my opinion, herein-above). Assuming but not conceding that Datti called for an interim government, how is such a call criminal? In my opinion, it’s within anyone’s right to make a call for an interim government provided that one does not take any illegal steps or make Illegal plans to install an interim government. All the government needs to do is to ignore the call or advice. For an example, a call for an interim government in Nigeria, was made in 2022 when Chief Afe Babalola, SAN, OFR, advocated an interim government in place of the 2023 elections. Afe Babalola Calls For Interim Government In Place Of 2023 Elections (Channels TV). At a media briefing held at the Afe Babalola University in Ado Ekiti, the Ekiti State capital on Monday, 19 April 2022, Chief Babalola raised fears that using the current Constitution to conduct another election in Nigeria would only reproduce the faulty leadership and system being experienced in the country. He argued that in a bid to prevent Nigeria from slipping into such a situation, the legal icon stressed that a new constitution has become an urgent need. His words, in part: “As soon as the President, the present government completes its term, do not hold a new election. Rather let us have an interim government for a short period to discuss a new Constitution. This will consist of all retired presidents, vice Presidents, governors, and some selected people. The naira, which was N199 to $1 in 2015, is now over N570 to a dollar. The external debt which was $10.7 billion in 2015 is now over $38 billion. The government is borrowing more, and spending more. Moneybags now control the lever of powers, if we allow the present Constitution beyond 2023, what we will be getting is recycling leadership who will continue the old ways”.
The Federal Government had, and rightfully in my opinion, ignored Afe Babalola’s call, and proceeded to organize and hold a presidential election on 25 February 2023. However, the poor post-ballot management of that election and INEC’s blatant exorbitance of the rule of law in respect thereof, are viewed by many as leaving much to be desired, leading to the current cunnundrums, discontent and brouhaha. Truth be told, INEC breached all promises, subverted all laws and truncated the entire Electoral Process when on 25 February 2022, it shut down the iReV which took away the integrity of the 25 February 2023 electoral process by creating room for allegations of result manipulation and perpetration of other forms of electoral fraud. Someone has thus argued that with their dance-naked-on-street outing on 25 February 2023, INEC, its chairman and his cohorts have shown that power doesn’t corrupt people, it is people that corrupt power? This is because corruption of the rule of law is much worse than any other form of corruption and crime; in all countries of the world which operate under the rule of law, it is for politics to be adapted to the laws of the land and not for the laws to be adopted to politics. So, it’s not surprising that people are seen expressing their anger, including but not limited to the calls (although I don’t agree with this one) that the declared winner shouldn’t be sworn in until the disputes are resolved in court. [See: “NIGERIA’S PRESIDENTIAL ELECTION 2023 AND LEGAL CONSEQUENCES OF AN UGLY SUBVERSION OF BEAUTIFUL LAWS [Part 2]” by Sylvester Udemezue NewsDeskNg; 12 March 2023]. How such natural expression of opinions and frustrations could now reasonably be treated or described as an incitement or a call for or a plot to install, an interim government, is difficult for a reasonable or discerning bystander to understand. From my own research and observations, I respectfully do not believe there’s any credible evidence of incitement to violence or lawlessness or plans anywhere by anyone to install an Interim Government in Nigeria. First, there is no provisions in the Nigerian Constitution for an interim government. Second, no emergency or necessity has happened to justify any such. Third, the Federal Government (the only organ that has power and the capacity to install an interim government, if it so wishes) has, happily, made its position clear against it. According to the federal government, “The Transition process is on course and all efforts are being made to ensure that it is smooth and on May 29th, there would be a peaceful formal transfer of power to the new President.“’_ [See: “Presidential Transition Committee Set For Smooth Handover Of Power”; [Voice of Nigeria]; and “President Buhari Ready To Hand Over On May 29 – SGF, Boss Mustapha” [Thenigerianvoice] wherein the federal government is reported to have assured that Buhari would hand over on 29 May 2023 to the INEC-declared winner of the 25 February 2023 Elections.
Well, as I’ve said earlier today, this reminds me of the propaganda concept/tool known as GASLIGHTING an aspect of which happens when people begin to pretend you’re the bad person so that they don’t feel guilty about or so that they escape being held accountable, for the shitty things they have done to you; when people try to paint you bad only because you’re expressing how you feel, so that they don’t have to take responsibility for their ugly behaviour. The entire hullabaloo about “incitement” or a plot to install an “interim government” could thus be reasonably be described as unfounded, an unnecessary play-to-the-gallery or grandstanding deliberately stirred up to achieve any or all of the following:
(a) create an opportunity to vilify anyone else who chooses to complain or speak out loud against a process they believe to be “illegal”;
(b) take people’s attention away from the real issues arising from the unprecedented desecration of the rule of law and subversion of the electoral process on 25 February 2023, by an umpire entrusted with the power, enough resources (over N300 billion Naira), and the responsibility, obligation of delivering to Nigeria and Nigerians transparently credible, free and fair elections in 2023, but which after promising Nigerians heaven on earth about its resolve to obey the law and ensure transparency and integrity during the elections, turned around, in connivance with a class, to subvert the entire Electoral Process to the annoyance of many well-meaning Nigerians, members of the international community and other monitors, observers and disinterested bystanders [See: INEC Knew That Direct Electronic “Transmission Of Results From The Polling Unit On Election Day (Not Thereafter) Is Legally Mandatory To Protect The Integrity Of The Electoral Process”; By Sylvester Udemezue; 09 April 2023; TheNigeriaLawyer]; and or
(3) as a scheme to try to turn into “offenders”, people who are supposed to be, and indeed are, victims in the brazen desecration and unashamed exorbitance of Nigeria’s electoral process on 25 February 2023.
This is easily understood, because as they say, “attack is the best form of defense”. By the time you have succeeded in turning the victims/aggrieved into the victimizers/aggressors, and thus making them to start scampering for safety, you’d thereby have succeeded in silencing all open expression of dissent and disenchantment, shutting down freedom of speech, and cowing majority of people into accepting to let go, so that we may, as usual continue in sin that grace may abound. This sort of strategy easily succeeds in a society as ours. And think I know why: “Many…are naive, believe everything they are told and accept everything they are giving. Only very few people, the discerning ones, ask questions. The rest is comfortable with just anything…. But this is what people get in return when their emotions supercede their power of rational reasoning. It is for this reason that, on 8 December 1822, in his letter to James Smith, Thomas Jefferson had declared: “man, once surrendering his reason, has no remaining guard against absurdities, the most monstrous, and like a ship without a rudder, in the spots of every wind. With such person, gullibility which they call faith, takes the helm from the hand of reason, and the mind becomes a reck” [See: “A Nation`s Journey To True Greatness: What Nigerians Must Copy In the Americans (A Democracy Day reflective memo to Nigerians)” By Sylvester C. Udemezue (29 May 2017; Thenigerianvoice).
(3). Examining Datti Baba-Ahmed’s comment in context, to determine whether the same amounts to “sedition”, as some have alleged:
(A). Meaning of Sedition Under Nigerian Criminal Law: Sedition often includes written or spoke words or actions inciting discontent towards, or insurrection against an established authority. According to Study.com, sedition is legally defined as ”the criminal act of revolting against an established authority, usually in the form of treason or defamation of a government”. Oxford English Dictionary: sedition means “the use of words or actions that are intended to encourage people to oppose a government”. Cornell University’s Legal Information Institute: Sedition is language intended to incite insurrection against the governing authority. Sections 50-52 of the Criminal Code and sections 416- 422 of the Penal Code provide for the offence of sedition in Nigeria. Penalty for sedition under the law constitutes; sentence to a term of imprisonment, fine and forfeiture of seditious publication. In paper titled, “Sedition under Nigerian Criminal Code: Effects on the Right to Freedom of Expression” published in the Library Research Journal, Oraegbunan et al wrote:
“Right to freedom of expression is protected and enjoyed in civilized and democratic societies. Yet, the reality is that this right is by no means absolute anywhere in the world as it is riddled with a number of restrictions and derogations. One of such derogations is provided by the law creating the offence of sedition…. Sedition is created an offence in the Criminal Code in order to preserve public order and safety of the state. Even as all crimes are in one way or the other offences against the state, sedition, just as treason and treachery, is specifically targeted against the state. Yet by its very nature, sedition is probably one offence which most seriously impinges on the liberty of the citizen to freely express himself. However, a vexed issue is how to strike a balance between an individual’s freedom of expression on the one hand, and the criminality of sedition in view of the security of the state on the other hand. The court in D.P.P v. Obi clearly painted a scenario to illustrate the limit beyond which free speech must not extend: ‘. . . a person has a right to discuss any grievance or criticize, canvass and censure the act of Government and its public policy. He may do this with a view to effecting a change in the party in power or to call attention to the weakness of a Government, so long as he keeps within the limits of fair-criticism.’… The offence of sedition is created in Nigeria pursuant to sections 50 and 51 of the Criminal Code. Section 51 provides thus: (1).Any persons who –(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention or (b). utters any seditious words (c).prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication (d).imports any seditious publication, unless he has no reason to believe that it is seditious. (e).Shall be guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine of N200 or to both such imprisonment and fine and for a subsequent offence to imprisonment for three years and any seditious publication shall be forfeited. (2).Any person who without lawful excuse has in his possession any seditious publication shall be guilty of an offence and liable on conviction, for a first offence to imprisonment for one year or for a subsequent offence to imprisonment for two years and such publication shall be forfeited”. (see: “https://www.google.com/url?sa=t&source=web&rct=j&url=https://journals.unizik.edu.ng/index.php/lrj/article/download/52/52…).
(2). Meaning of Insurrection: Insurrection means “a violent uprising against an authority or government” (Oxford) or “an organized and usually violent act of revolt or rebellion against an established government or governing authority of a nation-state or other political entity by a group of its citizens or subjects; also, any act of engaging in such a revolt” (Britannica). Insurrection is usually used to describe an armed uprising, revolt or revolution against the state, in the form of a mutiny or rebellion. I think the Cambridge English Dictionary brings out more clearly, the meaning of Insurrection: “an organized attempt by a group of people to defeat their government and take control of their country, usually by violence:”
In light of the above, the question could be asked: Is Datti Baba-Ahmed’s asseverative burst seditious? To determine this, these further question is necessary: DId Datti Baba-Ahmed in his outburst incite any insurrection against any government in Nigeria or otherwise counsel, urge or instigate any citizen or group to levy war or to engage in any armed uprising, revolt or revolution against the state?
MY OPINION:
With due respect, and judging by the exact words (as reproduced above) uttered by Datti Baba-Ahmed during the said ChannelsTV interview, it is my opinion that any argument/allegation linking that particular outburst (of Datti Baba-Ahmed) to the criminal offence of SEDITION is groundless, malevolent, impulsive, thoughtless and reckless. Such an irresponsible accusation against an innocent Nigerian is condemnable, and ought to be condemned, for being capable of overheating, or calculated to overheat the polity, but as I have pointed out, I think it’s just mere GASLIGHTING aimed to divert people’s attention from the real discussions, especially those expressing discontent and disenchantment about the ugly exorbitance of the rule of law and brazen subversion of the electoral process on 25 February 2023.
Respectfully submitted,
Sylvester Udemezue (Udems).
08109024556.
(mrudems@yahoo.com).
(09 April 2023)