Land-grabbing democracy By Lasisi Olagunju

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By Lasisi Olagunju Ph.D

“It is now that I understand why Nigeria makes credit passes in English and Mathematics compulsory for certain courses, particularly Law. Forty-four years ago, Section 34 of the Electoral Decree 1977 was the issue in the twelve-two-thirds controversy. In 2023, Section 134 of the 1999 Constitution is the issue, some fractions are still in contention laced with the poison of an English word. We appear to have learnt nothing from the past misadventure. Instead of being wiser by the rains that had beaten us for decades, our bald-headed vulture’s journey has become, in the words of Hamidou Kane, L’aventure ambiguë (Ambiguous Adventure). What does the phrase “and the Federal Capital Territory, Abuja” mean in that law, or, more appropriately, what is the intendment (intention) of the authors, the lawmakers?”

Land grabbers would seize your land at gunpoint and ask you to go to court. What would make one of INEC’s Resident Electoral Commissioners (REC) do what he did in Adamawa State yesterday (Sunday) other than the effrontery of land grabbing? Who asked him to do it? Declare a winner even while vote collation is on and let whoever is aggrieved go to court! It is a step that has taken the shamelessness of this democracy a notch higher. Fortunately, the REC’s employers were not in bed with him; they promptly annulled his impunity. We saw it before. It didn’t end well and we’ve not recovered from it. In 1979, at the end of the first ballot, none of the five presidential candidates was found to have got all that the law said they must get to be declared elected. Section 34 A (I) (c) (i) and (ii) of the Electoral Decree No. 73 of 1977 as amended said a candidate must have the highest number of votes cast at the election and must also have “not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the federation.” Three weeks to the election (23 July, 1979), the Federal Military Government enacted Decree number 3 of 1979 amending the electoral law. The new law prescribed the electoral college as the final decider of winners in case none of the candidates in the governorship and presidential contests met all the conditions precedent for declaration as winner. Nigeria, as of that time, had 19 states. Shehu Shagari got the highest number of votes but did he meet the two-thirds of all states threshold? He got one-quarter of the votes in 12 out of 19 states. Everyone with some elementary mathematics sense said, well, twelve was not two-thirds of nineteen. While the nation was waiting for the then Federal Electoral Commission (FEDECO) to announce a date for the electoral college to conclude the presidential election process as demanded by law, the umpire announced Shagari as the winner and an uproar followed. The Adamawa case is even worse: the facts and figures are notoriously naked in public domain. The case, if it stands, will simply tell us that you need neither the votes nor the spread to be elected governor – or even president.

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Our river flows away from the ocean – and you know how it will end. We held the first set of this year’s elections on 25 February, 2023. Today, nothing is concluded even with April going to bed. We will swear in a president on 29 May, 2023 having the legitimacy of his mandate being questioned in court. For us, the past, no matter how horrible, is always better. Everything about the 1979 presidential election was concluded in 46 days. The election was held on 11 August, 1979; a winner was announced on 16 August; four days after the declaration, Chief Obafemi Awolowo challenged it at the election tribunal. The tribunal started the trial on 4 September, 1979; it delivered its judgement on 10 September, 1979. Things moved so fast that the appeal, promptly filed at the Supreme Court, was decided on 26 September, 1979. Everything was over within 46 days. The race was won and lost and the winner sworn in on 1 October, 1979. The 2023 presidential election was held 51 days ago. Litigants are still in the rain outside, waiting for the courts to begin sitting. Obviously, in 44 years, our plantain has progressively gone more rotten while we say it is ripening.

Aborting legally sanctioned processes helps no one. Shehu Shagari, the man who was enthroned in 1979, was famously called ‘President by Mathematics.’ There is, in fact, a book of that title authored by long-gone ace journalist and administrator, Simeon Labanji Bolaji. A one-paragraph review of that book says it is “a comprehensive examination of the Nigerian general elections in 1979, and how Mr Shagari emerged as President, eventually – with the help of the judiciary.” How fair (or democratic) is it to have a governor or president elected by Mathematics and crowned by the unquestionable gavel of the judiciary? Mathematical historians tell us that maths isn’t a product of invention but of discovery rooted in necessity. From the clay tablets of Mesopotamia to the Egyptian papyruses, the primary, necessitating reason for mathematics was justice and equity in sharing and giving. Nothing defines my thought here better than the oríkì of a Yoruba lineage: pín’re/ làá’re/ Ìkan ò gbodò jù kan (share it fairly/ divide it equitably/ one must not be larger than the other). Even the more problematic, complex, modern mathematical fields of algebra, geometry, calculus and trigonometry are rooted in the unassailable logic of precision and fairness. But the nature of Nigeria encourages degeneration — it is, in fact, degenerative. When Mathematics, aided by the judiciary, is the ultimate elector of presidents and governors, the redemptive values of the subject is degraded and democratic logic is inverted. Never mind that Albert Einstein, in panegyrical lyrics, described Mathematics as the poetry of logical ideas, or that Galileo Galilei, Italian astronomer and physicist, said nature is written in mathematical language, and that nature does nothing uselessly (Aristotle). Mathematics is forced to lose its innocence here; it is made a colluding tool in sidestepping common logic and in undermining democracy. The 1979 legal contest was about the arithmetic of two-thirds of 19 states; it appears this year’s main presidential battle will be about that same fraction, now of 36 states but problematised with the use of an English word- ‘and’ – connecting the states to the Federal Capital Territory (FCT).

Section 134 (2) of the 1999 Constitution as amended says: “A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election- (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation and the Federal Capital Territory, Abuja.”

It is now that I understand why Nigeria makes credit passes in English and Mathematics compulsory for certain courses, particularly Law. Forty-four years ago, Section 34 of the Electoral Decree 1977 was the issue in the twelve-two-thirds controversy. In 2023, Section 134 of the 1999 Constitution is the issue, some fractions are still in contention laced with the poison of an English word. We appear to have learnt nothing from the past misadventure. Instead of being wiser by the rains that had beaten us for decades, our bald-headed vulture’s journey has become, in the words of Hamidou Kane, L’aventure ambiguë (Ambiguous Adventure). What does the phrase “and the Federal Capital Territory, Abuja” mean in that law, or, more appropriately, what is the intendment (intention) of the authors, the lawmakers?

The layman in me often wonders why we want to spend millions of naira and sweat through 180 days at the election tribunal and another 60 days at the Supreme Court in search of the intended meaning of the word ‘and’ when we can just summon the surviving authors of the constitution to come forward and explain what they meant. But that is just a layman’s lazy ‘unlearned’ conjecture; it makes no jurisprudential sense. The law is a beast ridden rough-shod by lawyers and judges in asinine circles. The operators confound the world by fiddling and searching for what may not be really lost. They talk about strictly following their books and whatever their rules say even when our Rome is on fire. Lord Denning, breaker of ranks, once threw up his hands and moaned: “I know that people are prone not to accept my views unless they have support in the books…” He also spoke about a case which “ought to have been simple, but the lawyers have made it complicated.” Complicating issues is a lawyer’s fort. A testator in his will gives all his vessels to X; lawyers ask whether the word ‘vessel’ means the man’s boats, ships or his drinking cups!

American poet, Haniel Clark Long (1888 – 1956) calls himself a layman “who should not willingly forgo being a listener.” He says, however, that “sometimes a listener speaks out, and listens to his own voice.” I have listened to and read people who said voters in the FCT, Abuja would be made super and special if the FCT provision in Section 134 of the constitution is read to mean a candidate, after fulfilling other conditions, must score 25 percent of FCT votes to be elected president. But, I want to ask: Are we just knowing that Abuja, our Federal Capital Territory, is more than a normal capital and that it is a super city and its privileges extraordinary? Our capital is no Washington D.C; it is no Brasilia; it is no Canberra, Australia. Yet, it is a purpose-built capital of a federalist state like all those three I just listed. It is a territory that is structurally at home with orò and administratively in bed with Egúngún. Let me explain. From 27 May, 1967 when Lagos State was created, till 12 December, 1991 when IBB moved the seat of Nigeria’s Federal Government to Abuja, Lagos had the enviable status of a state capital with a governor in charge of its affairs but which also was the federal capital with the president/Head of State ruling the federation from there. The two were in Lagos but there was no contest on who was responsible for the governing of Lagos. The state’s chief executive was the governor; the president had no role, he was a tenant. This is not so with today’s FCT. We have a constitution that says Abuja must be treated as a state and that the president of Nigeria is also the ‘governor’ of FCT, Abuja. Section 299 of the constitution says that “(a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a state and in the courts of a state shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja.” So, Abuja’s structure is the very opposite of its predecessor, Lagos of 1967 to 1991. The president is today also the FCT governor with all the powers exercisable in that respect. If that is the case, therefore, will it not be proper, right and equitable that the candidate seeking to be governor of FCT Abuja fulfill the requirements demanded of other governorship candidates in other states?

What I am saying is that we have an objectionable constitution that makes Abuja a state and the president its governor. Does that then not make a presidential election in that territory a double-barrel: shoot one, get two? As voters there elect the president, they also, impliedly simultaneously elect their governor. Anyone who would eat double in that FCT farm must therefore ‘perform’ double –get 25 percent in 24 states to become president; get 25 percent in the FCT to become its governor. Otherwise, a day will come when someone who scored zero votes in Abuja will be preparing and implementing its budget, appointing and disappointing, ruling or ruining lives there because he is the president of Nigeria. What do I know? A layman.

But, seriously, can we say that those who took this FCT matter to court are doing so with clean hands? There are two principal parties in court making huge legal mountains out of that contentious provision because the declared winner was roundly rejected by Abuja voters. Each of the petitioners wants to be made president even when it is clear that they do not have the highest number of votes cast in that election. One of them has the Abuja 25 percent cap but he lacks the head, the votes; the other has neither Abuja nor the plurality of votes. So, where is their pathway to power? Someone said the unfolding Adamawa governorship election case has come handy for them at the right time; it is a way. If it is possible in that corner, it should happen too in Abuja. Shame. In 1979, Awo did not ask to be made the president by the court. His demand was a further election by the electoral college as provided in the Electoral Decree No. 73 of 1977 (as amended) which governed the process. No one wants that tortuous route today. The battle cry is ‘snatch it; run away with it.’

Charles Dickens in Oliver Twist calls the law “a ass, a idiot” and wishes that the law’s “eye may be opened by experience…” The current controversy festers because the law here disdains experience and all its benefits. The global negative attention and head-shaking we got from the 1979 outing never benefited us. We run our affairs in a circular, interminable line of (deliberate) confusion. On 28 September, 1979, two days after the Supreme Court okayed the presidency of Shagari, and two days to his inauguration, Nigeria quickly deleted a part of the law that prescribed the convocation of an electoral college to resolve the logjam which the courts 48 hours earlier had crudely resolved (See Awolowo v Shagari- A Case of Compromise between Law and Political Expediency by M. Olu Adediran, 1982: 56). What we learnt from that episode is this deeper, newer problem of what to do with our ill-defined federal capital in a presidential election.

Even when the number of states has moved from the very odd prime number 19 to the more genial perfect square 36, the draftsmen still complicated it in the 1999 constitution with that odious “and the FCT” clause. It is all part of the Nigerian conundrum. Only a structurally defective Nigeria and a wùrùwúrú federation would unleash what we saw in 1979, wouldn’t learn positively from it and would worsen it with what we are about to see in 2023. We make and re-make these insidious, poisonous laws of electoral fractions (and infractions) because we know we are a flawed federation running a criminally expensive presidential system. We think we can use legislation to cure the Nigerian eunuch of his impotence. Do we really need a president who must be everywhere in Nigeria prostrating to man and gnomes to win an election and be allowed to rule after winning? Even the British who created Nigeria did not think so. What they gave us was a prime minister elected quietly from his corner of the country and who became the national leader only after his equals in parliament made him so. He did not need the kind of bank-breaking ‘bastard’ money that we see every four years in party presidential primaries and in the election proper since 1999.

Nigeria of 2023 owes no duty to fidelity; the courts are short-cuts to power; everyone wants to use the court as elevator to the top floor. That is what I see in the efforts of all the parties – ‘winners’ who ask ‘losers’ to go to court, and ‘losers’ who are in court with confounding claims. America’s greatest of all time, Abraham Lincoln, said in all he did, his concern was not “whether God is on our side; my greatest concern is to be on God’s side, for God is always right.” It is left to the court to decide on whose side it will stand in this matter.