INEC can’t declare Abiola president— Lawyers

Although lawyers were unanimous on the Federal Government’s posthumous award of Grand Commander of the Federal Republic of Nigeria (GCFR) bestowed on the late business mogul and acclaimed winner of the June 12, 1993 presidential election, Bashorun Moshood Kashimawo Olawale Abiola, they were, however divided on a directive by the National Assembly that the Independent National Electoral Commission (INEC) should not only declare the late Abiola as ex-president with full paraphernalia of office but the withheld election results 25 years after the election was annulled by former military president, Gen. Ibrahim Badamosi Babangida. The President Muhammadu Buhari-led Federal Government last week awarded the nation’s highest honour on Abiola twenty years after his death and 25 years after he was presumed to have won the June 12, 1993 presidential election. Abiola died on July 7, 1998, barely five years after former military president Babangida, annulled the presidential election which would have brought him to the seat of power. President Buhari honoured Abiola with the title of the Grand Commander of the Federal Republic (GCFR) and declared June 12 as Democracy Day; the honour successful governments had failed to respect. The president’s action will not doubt remain a watershed in Nigeria’s history even as it would for a long time become a subject of discourse in the country. The June 12, 1993 presidential election was conducted by the National Electoral Commission (NEC) which was largely seen as the freest and fairest election in the country. Incidentally, the election was the first since the 1983 military coup led Major General Muhammadu Buhari. However, the result was a victory for Moshood Kashimawo Olawale Abiola of the Social Democratic Party (SDP), who defeated Bashir Tofa of the National Republican Convention (NRC). But the election was later annulled by the then military ruler, Ibrahim Babangida. The election, according to Babangida was annulled because “there were allegations of irregularities and other acts of bad conducts leveled against the presidential candidates but NEC went ahead and cleared them.” Babangida went on: “There were proofs as well as documented evidence of widespread use of money during the party primaries as well as the presidential election. These were the same bad conduct for which the party presidential primaries of 1992 were cancelled. Evidence available to government put the total amount of money spent by the presidential candidates at over N2.1 billion.” The annulment, however, snowballed into unending crisis, particularly in the western part of the country where Chief Abiola came from as scores lost their lives. Following the crisis, another military coup de’tat led by late General Sani Abacha became inevitable. He took over the mantle of leadership on November 17, 1993. On June 11, 1994 after waiting endlessly for General Abacha to restore his mandate, Abiola declared a Government of National Unity at Epetedo in Lagos. On the occasion, Abiola said “I hereby invoke the mandate bestowed upon me by my victory in the June 12, 1993 presidential election to call on all members of the Armed Forces and the Police, the Civil and Public Services throughout the Federal Republic of Nigeria to obey only the Government of National Unity that is headed by me, your only elected President. My Government of National Unity is the only legitimate, constituted authority in the Federal Republic of Nigeria, as of now.” This historic action led to the arrest of Abiola on July 7, 1994 by the Abacha’s government and he was detained for about four years in solitary confinement. Abiola died in suspicious circumstances on July 7, 1998, shortly after the death of General Abacha. He was supposed to free on the day he died. Since his death, there have been calls for successive government to immortalize him but all these had continuously fell on deaf ears until Wednesday, last week when President Buhari heeded the call. In a statement, the president said he decided to honour the late Abiola with the highest national honour of the Grand Commander of Federal Republic (GCFR) after due consultations. The statement personally signed by the president reads: “For the past 18 years, Nigerians have been celebrating May 29 as Democracy Day. That was the date when, for the second time in our history, an elected civilian administration took over from a military government. The first time this happened was on October1, 1979. “But in the view of Nigerians, as shared by this administration, June 12, 1993 was far more symbolic of democracy in the Nigerian context than May 29 or even the October 1. “June 12, 1993 was the day when Nigerians in millions expressed their democratic will in what was undisputedly the freest, fairest and most peaceful election since our independence. “The fact that the outcome of that election was not upheld by the then military government does not distract from the democratic credentials of that process. Accordingly, after due consultations, the Federal, Government has decided that henceforth, June 12 will be celebrated as Democracy Day. “Therefore, the government has decided to award posthumously the highest honour of the land, GCFR to the late Chief MKO Abiola, the presumed winner of the June 12, 1993 cancelled elections. “His running mate as Vice President, Ambassador Babagana Kingibe is also to be invested with a GCON. “Furthermore, the tireless fighter for human rights and the actualisation of the June 12 elections and indeed for democracy in general, the late Chief Gani Fawehinmi, SAN, is to be awarded the GCON. “The investiture will take place on Tuesday, June 12, 2018, a date which in future years will replace May 29 as a National Public Holiday in celebration of Nigeria’s Democracy Day.” The president has since ordered the Attorney-General of the Federation, Abubakar Malami (SAN) to gazette the pronouncements. Lawyers speak Some senior lawyers have in the meantime commended the president for his gesture. The silk wigs; Chiefs Mike Ahamba, Ifedayo Adedipe, Mike Ozhekome, Dr. Biodun Layonu and Mr. Seyi Sowemimo said that the president’s action would go a long way to calm frayed nerves. They, however, expressed divergent views on the Senate’s demand that INEC should release the result of the annulled June 12, 1993 presidential election. Mike Ahamba “To be candid, I have always hold the view that June 12 is the real democracy day and not May 29. However, a constitutional alteration is required to reflect the new date that has been fixed for the country to celebrate democracy. “I also appreciate the honour bestowed on the late MKO and others by the president, even though, those who said it is a political affair are not wrong. But it is a good thing that these individual were at last recognized. I think the president’s action will surely calm frayed nerves. “However, to declare MKO president is not a legal possibility. Those who are calling for it should realize that. This is because President Buhari has no power to declare anybody president. It is the Independent National Electoral Commission (INEC) that should do so after an election. “The Senate’s call for the announcement of June 12, 1993 presidential election result is a tall request. It is not possible. The result was annulled by a constituted authority at that time. So, nobody can say that the annulment, even though not right is not legal. “The then military president had the power and he used it. So, nobody can go back and start reversing what happened. The annulment of the election is unfortunate but the military decision on it cannot be revisited. More so, it is impossible to declare a dead man the winner of an election. We should be realistic and stop been unnecessarily emotional. The honour done to the man by the president is okay and I think it should stop there.” Ifedayo Adedipe “It’s a good one, even though it is a cynical way of appealing to the people of the west. Those who are against it are only experiencing political opinions, I don’t see anything wrong with it. As far as I am concerned, the president can honour anyone he deems fit and he has done it. “What it means is that government has recognized that the late Bashorun MKO Abiola actually won the June 12, 1993 presidential election.” Mike Ozekhome To me, it is not the right argument that President Muhammadu Buhari did it for political reasons. Yes, he may very well have done it to shore up his battered political image and fast dwindling democratic credentials. But the inescapable fact is that he has done the right thing for which history will “This is the more reason, I believe the argument should now go, why he should retire quietly to his Daura home, having done one great thing for which he would be remembered. “When Chief Olusegun Obasanjo wrote his scathing letter to PMB in December, 2017, I applauded the letter for the import of its correct contents, even though I am not a fan of OBJ. I argued then that we should listen to the message and not look at the messenger. In the same vein here, we should look at the historical significance of President Buhari’s political masterstroke on the June 12 brouhaha and not him as a person or the ulterior motives for which he did it. I applaud him for this singular act that breathed fresh exhilarating oxygen into his lack luster performance. “To me, the argument of what reasons actuated the president in declaring June 12 our democracy day, and giving posthumous awards to Abiola and Gani does not arise at all. If anything, the very acts themselves form the very prong and catalyst to hold President Buhari strictly accountable to the ideas, philosophy democratic credentials and convictions that drove these two great sons of Nigeria, nay, Africa. “These include socio-justice, egalitarianism, respect for human rights, observance of the rule of law and due process, treatment of all Nigerians equally, wholesome and non-selective fight of corruption, good, transparent and accountable governance, respect for the will of the people through a fair, just, credible and respectable electoral process, etc. “In endorsing and applauding the president for this historic feat, let me add that he must carry out the necessary legal, constitutional and legislative requirements to bring this to fruition. For now, the pronouncement remains in the realm of executive fiat. President Buhari should also go ahead with the necessary political will to immediately restructure the lopsided Nigerian federation, remove the glaring nepotic and cronystic imbalances and enthrone true, fiscal federalism. “He should also ensure that the June 12, 1993 presidential election results are officially declared and Abiola formally pronounced the winner, and therefore president of Nigeria. His name, undoubtedly, will be inscribed in gold in Nigeria, whether or not he goes ahead to contest the 2019 presidential election.” Seyi Sowemimo “I can’t say there is any law which barred the president from doing what he did. Even if we have legal processes to follow, the president had already made the announcement. I think it is a welcome development and what needs to be done to ratify the president’s action, should be done. It’s not as if it is not a deserving case. This is something that people have long been clamouring for. “I also welcomed the call by the Senate on the Independent National Electoral Commission (INEC) to declare the results of the annulled election. The results were being announced when it was halted by former military president, Ibrahim Babangida, who for reasons best known to him canceled the poll. I think the Senate’s request will only complement what the president has done. It would also mean that everything that needs to be done in relation to that election is now being done.” Dr. Biodun Layonu “The president has not done anything illegal and anyone who felt aggrieved can seek redress in court. The president has exercised some prerogative in giving the award. The National Assembly does not need to pass a resolution before someone is posthumously awarded by the president. In any case, this award is long overdue, but it is better late than never. I think the president has done the right thing. “The Senate’s demand that the full result of the election should be declared is unnecessary. I don’t think that matters again. This present INEC cannot do so because it did not conduct the said election. I don’t think the present INEC can be declaring the result of an election it did not conduct”, the silk said. Dr. Kayode Ajulo “That should not the translated to mean Senate could compel INEC to declare the June 12 presidential election. “In Nigeria, we operate constitutional democracy where powers of state actors and institutions are prescribed with little allowance to broaden same. “The Senate missed it to assume that they can do things that catch their fancy. “The power of INEC is limited to the election it conducted, with a specific timeframe of casting ballots, collation of results, eventual declaration/release of election and finally petitions if any. “It is my humble opinion that irrespective of how sentimental and desirable the formal declaration of June 12 Election may be, doing such INEC will against the statute of Limitations and other ruling and judgment of court on the issue which have not been vacated or upturned.. Dr. Mahmud Agbede “Under law, the Senate has no power to order INEC to declare the 1993 election result. “The power to do that lies in the hand of the court. This is because the matter has become a constitutional issue which only the court can make pronouncement on. “As for declaring MKO ex-president posthumously, it boils down to the declaration of the election results. “Without declaring the results, the winner cannot emerge. And hope you know that law is not about insinuations but of facts placed before the court. “The first thing is to get a court order on INEC to declare the result and subsequently declaring Abiola if he is the winner of the said election as president posthumously can follow. “The power of the Senate is limited to making laws and oversight. And not to the extent of ordering another body created by law to perform certain function.” Similarly, another Abuja based lawyer, Kingsley Obi opined that the Senate lacked the power to ask INEC declare results of the 1993 election. “The legislature is just one arm of government and no arm is superior to the other. No arm has absolute power on the other. “When there are conflicts between arms and organs of government, such conflict is expected to be presented before the court for adjudication. “A question on my mind now is that to what advantage will the declaration by INEC be on the country? A lot of questions will have to be answered before such declaration will be done. “Like, who will be the returning officer? Will the declaration bring back the supposed victory of 1993? I think our problem in Nigeria is that we like distraction so much. “I still wonder why a whole noise on this declaration will help our economy to grow and food on the table of the common man.” Emeka Nwadioke The Civil rights lawyer has asked President Muhammadu Buhari to rescind his notice to award some of Nigeria’s highest honours to the acclaimed winner of the June 12 elections, the late Chief M. K. O. Abiola among others, describing the proclamation as “illegal and of no moment.” He said: “Article 2 (1) and (2) of the National Honours Act Cap N43 Laws of the Federation of Nigeria 2004 is very clear on the subject. “Only Nigerian ‘citizens’ and foreigners may be awarded such honours. Black’s Law Dictionary defines a ‘citizen’ as ‘a member of a free society possessing all the rights and privileges which can be enjoyed by any person under its Constitution and government and subject to the corresponding duties.’ Clearly, this does not accommodate deceased persons. Nwadioke also said that the emphasis on the currency of such citizenship was found in Article 2 (1) which directed that a person would not be eligible for the honour “unless he is a citizen of Nigeria.” “Given that it is notorious that the rank of Grand Commander of the Federal Republic is reserved exclusively for Nigeria’s presidents, Mr. President even negated his own proclamation when he addressed Chief Abiola as the ‘presumed’ winner of the June 12 election. Clearly, Nigeria’s highest national honour cannot be awarded based on arbitrariness or a mere conjecture. “To put the matter beyond debate, while the Honours Warrant part of the same Act is profoundly silent on the award of the ranks to deceased persons, this is not the case with the Honours (Armed Forces) Warrant (L. N. 27 of 1966) which clearly states in Article 3 (1) inter alia that the Nigeria Star medal ‘may be awarded posthumously.’ We need not go further to evince the intention of the law-giver in this regard. “Indeed, it is my considered view that a presidential proclamation is incapable of altering May 29 as a public holiday. The Public Holidays Act bars Mr. President from altering the holidays set out in the schedule to the Act, given the unambiguous wording of the enabling provision which enacts that any such holiday by the president must be ‘in addition to the days mentioned in the Schedule to this Act.’ The only option open to the president as of right is to declare June 12 as an additional public holiday.” Culled form newtelegraphonline]]>