According to Nigerian laws, once a candidate is declared by the electoral commission as having been duly elected into public office, only a court of law can declare otherwise. A candidate has been declared elected to the office of President. Aggrieved parties have gone to court to contest the legal propriety of the declaration. It is within their rights to do so. But, unless the court sustains their objection, he will be sworn in on May 29, 2023.
If he is not sworn in, there will be a vacuum in the highest office in the land. That would be an anomaly. If, however, he is sworn in while the propriety of his candidature and the propriety of the declaration that he is duly elected are subject of litigation, that too would be an anomaly.
That is the situation in which we find ourselves in Nigeria at this point in our history. And these two issues are not to be glossed over. It is a sad tale of two anomalies.
The issue at hand is not whether it is legal to swear the one who has been declared duly elected into office. The issue is, given the circumstances and litigation, whether it is moral. The bone of contention is morality, not legality.
Unfortunately, in much of contemporary jurisprudence, the necessary underlying distinction between morality and legality is often ignored or considered unimportant. Such is the position of legal positivism. Legal positivism simply substitutes morality with legality. Hence, once the law permits an action, the legal positivist declares the action appropriate. Justice is, for the legal positivist, conformity with the letter of the law. Or, whatever is legal is just.
Legal positivism would have been above contestation if whatever is legal were to be ipso facto moral. But there are unjust laws. A law, any law whatsoever, must be at the service of the moral order. Where a law disrupts the moral order, it is unjust. Conformity with the law does not guarantee the cause of justice. Legal positivism’s substitution of morality with legality engenders a disruption of the moral order which is amply exploited by beneficiaries of the status quo.
The propriety of substituting morality with legality was what Cardinal John Onaiyekan queried in his recent interview on Channels Television. He was not saying the man declared by the electoral commission will not be sworn in on May 29. Neither was he advocating the installation of an interim government, as some would like to insinuate, forgetting that insinuations are not logically valid deductions. An interim government would have no constitutional backing in Nigeria. He was interrogating the moral propriety of a law that allows a candidate to be sworn in while his election is still being contested in the courts. That law is in need of modification.
Of course, the Cardinal knows that such modification cannot take place before May 29. Even if it were to be modified now, the modification would not be applied to the current situation because the election took place before the promulgation of the new law. But this is a matter Nigeria must address before future elections.
Not surprisingly, in the climate of intolerance of divergent opinions which a supposedly democratic political elite has created in this country, the swift negative reactions that followed Cardinal Onaiyekan’s interview showed a basic lack of comprehension. Cardinal Onaiyekan spoke in simple terms. He always does. But he is never simplistic. The simplicity of his communication does not leave attentive and perceptive listeners in doubt as to the appropriateness and profundity of its content. I am in a position to loudly and proudly say so because I had the privilege of being his student.
The Cardinal forthrightly offered a wise counsel to Nigeria to reorder the sequence of things. He has always offered this country wise counsel. But, again, as is always the case, mischievous and inordinate love of power reduces the capacity to comprehend wise counsel. Either hasty commentators don’t understand or they have chosen not to understand or both. And those who are either unable or unwilling to understand find it convenient to resort to sophistry and insolence.
Justice now has become a piece of meat. While it is being chewed, the one chewing it asks us to go in search of it. Politics in Nigeria is hugely distant from morality. It is an open secret that our electoral process is subject to brazen manipulation from party primaries to the polls. The Cardinal is calling our attention to the need to fix it. But beneficiaries of the status quo say there is nothing to be fixed.
Being a Biblical scholar, Cardinal Onaiyekan knows that no one is a prophet if he has not been insulted. But those who insult a prophet do not diminish him. They diminish themselves. In a land where basic home training is lacking, insolence becomes the hobby of sophists.
Cardinal Onaiyekan was not the first to offer this wise counsel. The Justice Uwais’ Electoral Reform Committee set up by President Umaru Yar’Adua offered the same counsel in 2009. Cardinal Onaiyekan is being insulted for saying what the Uwais Committee already said.
After the disgraceful conduct and outcome of the 2007 elections, Yar’Adua gave an inaugural speech which, from the point of view of content, might go down in history as the most candid inaugural speech by a Nigerian leader. He said inter alia: “We acknowledge that our elections had some shortcomings. Thankfully, we have well-established legal avenues of redress, and I urge anyone aggrieved to pursue them. I also believe that our experiences represent an opportunity to learn from our mistakes. Accordingly, I will set up a panel to examine the entire electoral process with a view to ensuring that we raise the quality and standard of our general elections, and thereby deepen our democracy.”
By accident or by redactional intent, Yar’Adua’s otherwise candid speech was an understatement. For the 2007 elections did not just have “some shortcomings”, they were seriously and embarrassingly flawed. But he kept his word by establishing the Justice Mohammed Uwais’ Electoral Reform Committee. Members of that committee were highly respected jurists, academics, technocrats and professionals.
The Committee placed the following proposals before Yar’Adua, and by extension, the Nigerian political elite: that there be constitutional amendments that would insulate the Independent National Electoral Commission (INEC) from the political influences of the executive arm of government in terms of its composition and funding; that the power to appoint INEC board be transferred from the President to the National Judicial Council (NJC) while its funding be a first line charge on the Consolidated Revenue of the Federation; that the functions of the police on election duty stated in the Police Service Commission guidelines on code of conduct for officers be incorporated into the Police Act; that election petition have time limit; that a Special Electoral Offences Commission be set up to try electoral offenders; that no elected person should assume office until the case against him/her in the Tribunal or Court is disposed of; that there be an amendment of the Constitution for the appointment of a single date for Presidential and Gubernatorial elections which should be held at least six months before the expiration of the term of the current holders of the offices; similarly, that there be an amendment of the Constitution to appoint a single date for National and State Assembly elections which should hold two years after the Presidential and Gubernatorial elections; that the number of tribunals be increased by reducing the number of judges that sit on a tribunal from five to three, so that more tribunals can be established per State.
As could be seen, the Uwais Committee already proposed what Cardinal Onaiyekan said in the interview: that all election petitions be decided by the courts before inauguration. But Yar’Adua’s candid confession was not followed by the moral will to implement the wise proposal of the Uwais committee. He had an opportunity to demonstrate that he meant what he said. But he blew it by refusing to implement some crucial recommendations of the Justice Uwais’ electoral reform committee. His successors in the office of President have demonstrated even weaker moral will in this matter.
Festus Keyamo, in his unguarded insolence, unwittingly provided an explanation for this lack of moral will for electoral reforms on the part of Nigeria’s political elite when he said: “may I respectfully [note the irony] advise that going forward, you [Cardinal Onaiyekan] and your brethren may consider stepping back from the deep and murky waters of politics…”
Keyamo unwittingly acknowledged that Nigerian politics is dirty. But his candid admission, like Yar’Adua’s, is another understatement. Nigerian politics is not only dirty. It is brigandage. It has been made so by the Nigerian political elite. That is why dissenting voices like Onaiyekan’s, voices that ought to be heeded, are maligned.
© Rev. Fr. Professor Anthony A. Akinwale, O.P. is a Professor of Systematic Theology and Thomistic Studies and Pioneer Vice-Chancellor, Dominican University, Ibadan, NIGERIA