Constitutional Indictment And Political Purity

By

Leonard Shilgba, PhD

shilgba@yahoo.com

In my last article, "Struggling hope from the womb of despair", I promised to do a second part of the same. This article is the fulfillment, although I have chosen to shorten the title, which should have been, "Struggling hope from the womb of despair: Constitutional indictment and political purity".

For sometime now there has been a raging controversy about "indictment" of certain persons and the implication for their political ambitions. I think there has been much misrepresentation even by some legal minds (I mean lawyers) whose livelihood derives from legal arguments and sophistry. I should urge you to carefully examine the relevant portions of the living Constitution of the Federal Republic of Nigeria on this matter.

Section 137 reads:

1. A person shall not be qualified for election to the office of President if-
   1. subject to the provisions of section 28 of this Constitution he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
   2. he has been elected to such office at any two previous elections; or
   3. under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
   4. he is under the sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud ( by whatever name called) or any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
   5. within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of Code of Conduct; or
   6. he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in Nigeria or in any other country; or
   7. being a person employed in the civil or public service of the Federation or of any state, he has not resigned, withdrawn, or retired from the employment at least thirty days before the date of the election; or
   8. he is a member of any secret society; or he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government, respectively; or
   9. he has presented a forged certificate to the Independent National Electoral Commission.
2. Where in respect of any person who has been-
   1. adjudged to be a lunatic;
   2. declared to be of unsound mind;
   3. sentenced to death or imprisonment; or
   4. adjudged or declared bankrupt
   5. any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.

See also sections 66 (1), (2); 107(1), (2); 182 (1) (2) as they relate to the National Assembly, State Assembly, State Governors, respectively. The words are exactly the same as in section 137 (1), (2).

I have taken the time to write out those sections and subsections of our Constitution above for the convenience of the reader. There is undoubtedly haste by many Nigerian commentators to speak "authoritatively" on issues without careful examination of facts. Besides, clear understanding of English language (the language of the constitution) is very helpful in avoiding wrong imputation of meanings and muddling up of the grammatical waters.

INDICTMENT: An indictment is a written statement accusing somebody of a crime. This is the dictionary definition of the word that fits into what the framers of our Constitution meant by using the word in section 137(1) (i). Our Constitution requires the accusation of wrong doing against a person seeking the office of the President for instance, to be made by a Judicial Commission of Inquiry, or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government. This list excludes every other person or bodies within the Federation whose indictment should be constitutionally taken seriously. Furthermore, the indictment must be accepted by the Federal or State Government, respectively.

I find this constitutional provision very peculiar; a constitutionally acceptable indictment alone (not a conviction) shuts the door in the face of an aspirant to an elective office in Nigeria. A casual glance at the provision arrives at the conclusion that it is a deadly weapon in the hands of a person with great authority such as an incumbent President or Governor. However, a thoughtful consideration yields the sobering realization that politics in Nigeria is gradually becoming a human engagement that must be avoided like a plague by people with indelible stains of yesterday. Not among angels are we told to seek for our leaders, but among Nigerians; yet those Nigerians must not be in the league of pirates on Nigeria's sea of hope.

I tell my students that if they seek political positions and relevance in the emerging new Nigeria, they must watch their today and guard their integrity now and for life. The quick reaction by casual thinkers is to recommend constitutional amendment to expunge section 137 (1) (i) in order to prevent "its abuse by a vindictive President or Governor". Any law can be abused by a person of authority; that is why we call such, "positions of trust". We have no option but to accept the truth that we have no control over certain things and that trust is what we have to put in our leaders. Whether they are worthy of the trust is up to them to prove. But we must not allow fear of abuse of trust to capture our sense of reason.

SALIENT TRUTHS ON INDICTMENT:

1. We do not appeal against an indictment by any body or persons; we appeal against a conviction, a declaration of guilt, or a legally binding opinion of a court of law. Take a close look at the four grounds of disqualification- (a)-(d) in section 66 (2), 107(2), 137(2), and 182 (2)-for contesting elections in the Federal Republic of Nigeria, against which a person may appeal, and you will not see that ground stated in sections (66 (1), 107(1), 137(1), and 182 (1))(i)-INDICTMENT. The framers of our Constitution knew the meaning of the word, and that an accusation (indictment) is not like a conviction by a court of law which can be appealed at a court of higher jurisdiction. Hence, indictment was excluded from the list of grounds of disqualification that can be appealed.

I have heard "learned people" talk of courts of law "setting aside an indictment"; an indicted person "appealing against an indictment". I need emphasize that an appeal is a protestation of innocence contrary to a conviction by a court of law and not that you have been indicted (accused) by a "Judicial Commission of Inquiry, or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government, respectively". An indictment in accordance with Sections (66 (1), 107(1), 137(1), and 182 (1)) (i) cannot be appealed against in any court of law in Nigeria.

2. The only way to discard a shroud of indictment is to go through the legal process of litigation to prove that you have not done those things you have been accused (indicted) of. If I am indicted and must clear my name, I cannot just go and ask a court to "set aside my indictment (accusation)". If courts of law were in the business of setting aside accusations without hearing of evidence, there should be no litigations. To clear my name, I must be prepared to argue against each point on which my indictment is based.

The import of what I have tried to elucidate above is that once indicted according to section 137(1) (i) ( and parallel sections), the indicted is accordingly disqualified from contesting specified elections unless he goes to court and puts pressure on the accuser to prove beyond reasonable doubt that he has done those things he has been accused (indicted) of. On the strength of superior arguments one way or the other, he may or may not be discharged and acquitted.

The Senate of the Federal Republic of Nigeria has come in the cross fire between President Obasanjo and the Vice-President recently. It is difficult how unscathed it might emerge from the whole thing. The credibility problem that some have foisted on the PTDF report by the Senate Ad hoc Committee has snowballed into yet another Senate Committee on the report. This is appalling; the Senate cannot expect the report or findings of its 7-man panel to examine the PTDF report to be any less controversial.

My candid opinion and conclusion is that the Senate has become so fractionalized along cracks of political hurts and helps that its objectivity has been fogged either by vengeful thinking or obsequious disposition. In the matter of the PTDF, I wish to call the attention of the Senate to section 56 of our Constitution and state without fear of contradiction that the present Senate cannot claim not to have entrenched personal interests in the matter. Section 56 forbids a member of the National Assembly to take part in deliberations or vote on a matter in which they may have personal interest. They are also required to disclose such interests; failure to do so is considered a punishable offence.

I would therefore advise the Senate to hands off the matter for the new Senate post- May 29 2007 to investigate and take appropriate actions under the Constitution.

By the time this article shall be read by some, a lot of political dust would have been raised by some political happenings of the week of its publication. Let no one be afraid. The shaking is a political winnowing. The chaff shall be blown away. I concede there is no perfection in the system; but I would be naïve to expect any. The fact is that a purifying process is going on in the polity.

The frequency and number of political and constitutional litigations in our courts of law are helping to test, examine, and measure our Constitution which is the guide of national conduct. This will eventually deepen our knowledge of democratic interaction and responsibilities under the law. Let those legal battles shape and fix our boundaries of right and define our incontrovertible responsibilities in the midst of those bountiful harvests of rights.

If the Constitution requires disqualification of candidates for elective positions who present forged certificates (any certificate for that matter), it pre-supposes that the electoral Agency INEC (which receives such documents) must verify those documents and therefore be willing to submit them to the Agencies that issue them for professional verification. The matter is so simple and straight forward. Just like an honest student of the Constitution should not deny INEC has the right to verify submitted documents, INEC also must not give the impression that it is shielding some people by its reluctance to release the tax clearance certificates to the FIRS or JTB for proper verification. I hope the gentle Professor at INEC will not leave room for litigations after elections.

Leonard Karshima Shilgba, is an Assistant Professor of Mathematics, Abti-American University of Nigeria, Yola.