Prof Itse Sagay (SAN)

Since Prof Itse Sagay (SAN) was appointed Presidential Advisory Committee on Anti-corruption Chairman, he has launched attacks on some institutions he perceived as undermining the Presidency. AHURAKA YUSUF ISAH writes that the common streak about his verbal attacks is that no libel suit can succeed against him because none is personal.

The raging verbal war between Chairman of the Presidential Advisory Committee on Anti-corruption (PACAC), Professor Itse Sagay (SAN) and the National Chairman of the All Progressives Congress, (APC), Chief John Odigie-Oyegun is yet to settle.

Sustaining momentum of the smoldering fire exuding from their guns, Sagay had September 26, 2017 in his “further and better reply” to his being labelled by the APC’s leadership as a “quintessential rogue elephant,” described Chief John Odigie-Oyegun as a “come and chop’’ politician.

Professor Itsejuwa Esanjum Sagay (SAN), simply known as Professor Itse Sagay is a distinguished legal scholar, Professor of Law and human rights activist is the former Dean of the Faculties of Law, Universities of Ife and Benin respectively, a constitutional law expert and Senior Advocate of Nigeria.

Delta state (Ugheli) born Supreme Court of Nigeria Amicus Curia was appointed by President Muhammadu Buhari in August 2015 as the Presidential Advisory Committee on Anti-corruption Chairman to advice his administration on prosecution of the war against corruption and the implementation of required reforms in Nigeria’s criminal justice system.

Sagay began the scathing remarks on institutions or individuals while serving under the Buhari administration when on April 16, 2016 he delivered a paper titled “A Farewell to Election Petitions”, which he referred to as ‘’a Summary of his review of the Supreme Court decision in the Rivers State Governorship Case of Wike v. Peterside.

Supreme Court heard and delivered judgement in appeal number SC.1002/2015, between Wike Ezenwo Nyesom and Hon. (Dr) Dakuku Adol Peterside & 3 Ors on January 27, 2016; with reason for the judgement subsequently given on February 12, 2016.

In his lead judgement, Justice Kudirat Motonmori Olatokunbo Kekere-Ekun dismissed the concurrent judgments of the Tribunal and the Court of Appeal and consequently return Nyesom Wike as the duly elected Governor of Rivers state.

‘’The generalized evidence led by mobile policemen, officers of the Department of State Security and Military Officers were against unidentified individuals and unidentified PDP thugs.

‘’For the evidence of disruption, violence and corrupt practices to warrant the nullification of the entire election in Rivers state, the 1st and 2nd respondents had to first prove the non-compliance polling unit by polling unit, ward by ward. They must also establish that the non-compliance was substantial and affected the result of the election. It is only when this is done, that the respondents are to lead evidence in rebuttal. The 1st and 2nd respondents herein failed to bring their cases within these parameters

‘’It is my view that the Tribunal and the court below were unduly influenced by the alleged failure of INEC officials to adhere to INEC’s Manual, Guidelines and directives on the exclusive use of the Card Readers for accreditation and heresay evidence and thereby, with due respect, came to the wrong conclusions. I hold that the appellant has shown sufficient reason for this court to interfere with the concurrent findings of the Tribunal and the court below’’.

But Sagay argued otherwise. He said ‘’the Wike v. Peterside Supreme Court decision constituted the most devastating judicial blow on Democracy, the Rule of Law and Free, Fair and Credible Elections this country has ever seen. Not only have incredibly high and insurmountable barriers against election petitions been erected by that decision, it also gives an indomitable rock like status to anyone, who by blood, mayhem, violence, massive irregularities, fights his way on to the governorship seat; indeed, any electoral office. He is assured of unshakeable, solid tenure for 4 years. The full implication of the Supreme Court’s decision in Wike v. Peterside is: “when you prepare for Elections, prepare for War”. This judgment constitutes, “A Farewell to Election Petitions”.

The Electronic Card Reader Machine for accreditation of voters was provided for in the Approved Guidelines and Regulations for the conduct of the 2015 General Elections. Prior to the authorization of its use by the Guidelines, Sections 49 (1) and (2) of the Electoral Act 2010 (as amended) had adopted analogue procedure for the accreditation process. The National Assembly perhaps went to sleep by not amending the Electoral Act in order to replace the Voters’ Register (analogue procedure) with the Card Reader Machine, in order to serve as the sole determinant of valid accreditation process.

The 7-man panel of the Supreme Court led by the Chief Justice of Nigeria, Justice Mahmud Mohammed in the appeal number SC.1004/2015 in the matter between Edward Nkwegu Okereke (Appellant) And Nweze Davidumahi And Others (Respondents), held that; ‘’…since the Guidelines and Manual which authorized the use and deployment of the electronic card Reader Machine were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the voters’ Register whose judicial roots are firmly embedded in the selfsame Electoral Act from which it (the Voters’ Register), directly, derives its sustenance and currency’’.

Hon. Justice Chima Centus Nweze, who delivered the lead judgment said “the lower court was right in holding that the Card Reader Report was incomplete, unreliable and incapable of proving the appellant’s allegation of improper accreditation/over-voting’’. Should Voters’ Register or Card Reader Machine Report be the determinant of valid accreditation? This had been the basis of conflicting judgment amongst the Court of Appeal Divisions recently.

But, again felt otherwise. He said in his same paper, “A Farewell to Election Petitions”, that the Supreme Court, in rejecting the use of the Card Reader adopted its earlier views on the matter in Okereke v. Umahi S.C. 1004/2015, that the use of the Card Reader would ‘dethrone’ and ‘depose’ the Voters’ Register “whose judicial roots are firmly embedded or entrenched in the selfsame Electoral Act from which it (Voters’ Register) directly derives its sustenance and currency” – per Nweze, JSC. The question may be asked, how does the Card Reader ‘depose’, or ‘dethrone’ the voter’s Register.

‘’The sum total of the role of the Card Reader is that it is complimentary to the usage of the Voters’ Register.” So where in all this did Nweze, JSC, discover the ‘deposition’, and ‘dethronement’, of the Voters’ Register by the Card Reader? Absolutely nowhere. What Nweze, JSC, had simply done was to give the Card Reader a bad name in order to subject it to judicial execution.

‘’Section 15 o the Electoral Act clearly empowers the INEC to issue Regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Act and its Administration thereof. Introduction of Card Readers is doing exactly that. By law, the guidelines thus issued are as potent as the permitting law, i.e., the Electoral Act itself.

‘’It follows that if all the Card Reader does is to enhance, improve and promote the capacity of the Voters’ Register to ensure or guarantee, free, fair, credible and transparent elections, the Card Reader could NOT in any sense have ‘deposed’, ‘dethroned’ the Voters’ Register as Nweze, JSC, wrongly asserted in Okereke v. Umahi

‘’ The Voters’ Register could only be regarded as having been dethroned and deposed if its purpose in the Electoral Act was to promote fraud, rigging and massive irregularities. In other words, it is only when its role and purpose is in conflict with that of the Card Reader, that it can be said to have been dethroned and deposed by the Card Reader, because the two would then be working at cross-purposes with each other.

‘’It is really incredible that the Supreme Court threw in the towel to the existing and debilitating culture of election fraud, violence and rigging, when the Law and Justice were pointing in the opposite direction. Apart from all the above, the Electoral (Amendment) Act, 2015 specifically empowers the INEC to introduce innovations like Card Readers to promote the credibility and sanctity of an election. By Section 52 of the Act, “voting at an election shall be in accordance with the procedure determined by the Independent National Electoral Commission.”

‘’I repeat, the petitioner need only establish one of these two situations in order for the election to be invalid, namely Substantial non compliance with the electoral Act including the schedules and regulations. or Substantial effect on the election result of any infraction of the Electoral Act, schedules, regulations etc no matter how trivial the infraction. Therefore, Kekere-Ekun, JSC, was absolutely wrong when she stated at page 67 of her judgment that in addition to establishing substantial non-compliance, the Petitioners were also obliged to also establish that the non-compliance also affected the result of the election.

‘’ This is an error that some Justices of the Supreme Court have been repeating again and again inspite of corrections that have been offered several times. The authority on this issue is Morgan v. Simpson [1974] 3 All ER 722. This is what Lord Denning said in Morgan v. Simpson: “(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case[1], where two out of 19 polling stations were closed all day, and 5,000 out of 41,000 voters were unable to vote.

‘’Thus once there is substantial non-compliance, the election is invalid Cadit Quaestio! There is NEVER any further enquiry whether or not the non-compliance affected the result of the election. It is only when the non-compliance is not substantial, that its impact on the election is considered. Polling Unit to Polling Unit Thirdly, the Supreme Court wrongly asserts that to establish non-compliance, the Petitioner has to provide evidence from polling unit to polling unit throughout the State. Again this is incorrect.

‘’ In Hackney Case, Gill v. Reed and Holmes (1874) 2 O’M & H 77, 31 Lt 69, a leading English case, it was shown that only two out of 19 polling stations (units) were closed on election day and 5,000 out of 19,000 were unable to vote. The election was invalidated for substantial non-compliance with the relevant election law.

‘’ Can an election that was marked by killing, extensive bloodshed, intimidation, mayhem and chaos require a meticulous examination of polling unit after polling unit, to establish non-compliance? No. The elections were canceled by outright violence involving, killings, election materials seizure and intimidation of voters as was overwhelmingly established at the tribunal. Where there was effectively no election, it is futile going from polling unit to polling unit, looking for what never existed in the first place. In Buhari v. Obasanjo [2005] 2 NWLR (Pt. 910) 241 at pp. 520 – 522) Nsofor, JCA, nullified the whole presidential election based on events In 7 States out of 36 States’’, Sagay held.

‘’Reflecting on another oddity, all Supreme Court decisions on governorship elections, were unanimous: 7/7. This is very unusual in an institution made up of top jurists and intellectuals’’.

Senate had on March 29, 2017 ordered its Ethics, Privileges and Public Petition Committee to investigate the statement credited to Sagay describing the Senate’s action, calling on Buhari to sack the Acting Chairman of the Economic and Financial Crimes Commission, Ibrahim Magu in two weeks, as childish and irresponsible

When senate suspended the confirmation of 27 Resident Electoral Commissioner (REC) nominees on the previous day until Buhari removed Magu as EFCC acting chairman. Sagay said senate was just been childish irresponsible for making such demand, adding that senate is filled with people with questionable characters which was the cause of such demand.

‘’I want Sagay to be invited to come and name the senators with questionable characters. If due diligence is followed, Sagay would not have been appointed as chairman. I, Bala Ibn Na’allah is not of questionable character. I don’t think there is any senator here who is of questionable character..

‘’There sits Retired General Jeremiah Useni who spent most of his life time serving the government of the Federal Republic of Nigeria. Sagay must be invited to appear before Ethics, Privileges and Public Petition Committee to name senators who are questionable characters’’, Na’allah said

However, Senator Peter Nwaboshi (Delta state, PDP) advised that the senate should not waste it’s time for the person of Professor Sagay on the grounds that it has been his way of life to thrive in confusion, adding that from his past, he doesn’t thrive well where there is peace.

‘’Let us just leave him because that is his trade mark. He is almost 80 years of age and he can never change. No action meted on him now by us will change him’’, Nwaboshi pleaded.

Sagay had told a reporter while reacting to the suspension of RECs confirmation for two weeks that Buhari would not be cowed by the Senate’s action which he described as an affront to the Presidency.

He said, “That action is childish and irresponsible. Do they think Buhari is a man that can easily be threatened? My God! How can people of such character occupy the highest legislative office in the country? Nigeria is finished. It is a great mistake and they will regret it.”

When asked what appropriate action Buhari could take, Sagay explained that Buhari could continue to appoint people in acting capacity where necessary.

Without any prompting, Sagay had on September 23, 2017 in a press interview described the leadership of the APC as the most unprincipled group of people who were encouraging and accepting rogues into its fold.

He said: “When I say ‘rogues’, I don’t mean stealing. In literature, when you say someone is a rogue elephant, it means people who are running riot and destroying the party.”

While responding, APC’s National Publicity Secretary, Mallam Bolaji Abdullahi said there was no way Sagay could call out the leadership of the party as “weak” and “unprincipled” without indicting the president

Describing Sagay as arrogant and a rougue elephant who has no respect for even President Muhammadu Buhari, the party admonished him to exercise restraint and as a matter of honour, “show decorum and respect for the party and its leadership” adding that “You cannot love the fruit and hate the tree that produced it”.

The APC dug out the Webster dictionary meaning of rogue elephant as: “One whose behaviour resembles that of a rogue elephant in being aberrant or independent.”

The party said: “Clearly if we have today, anyone in our government or, by extension, the party who feels accountable only to his own ego; who does not feel the need to bridle his tongue for the sake of anything that is higher than himself; who feels independent of everyone and every institution; that person is Professor Saga. He’s therefore the rogue elephant’’, he said.

But in his counter-reaction on September 26, 2017, the constitutional lawyer said: “I am an accomplished man long before any appointment. I am not a “come and chop” politician like you lot.

“My loyalty is to the president and not to the party which has continued to fail under the leadership of Chief John Odigie-Oyegun.

“To start with, I am not a ‘come and chop’ person as you are. I did not come to ‘chop’; so the party is not doing me a favour. You are the ones that have come to ‘chop.’

“Secondly, my criticism of APC is not against President Muhammadu Buhari who I think is a man of great honour, integrity and whom I admire and who inspires me.

“I took this job because of Buhari and Osinbajo, who I admire greatly. The people I am referring to in my criticism are John Odigie-Oyegun and one Bolaji Abdullahi, who is (Senate President Bukola) Saraki’s Man Friday. They are dining with the devil who wants to destroy the party’’, Sagay said.

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