Yusuf Olaolu Ali, SAN, patron and legal adviser to many professional and socio-cultural groups across the country, is also an Associate Lecturer, at the Faculty of Law, University of Ilorin. In this interview by BIOLA AZEEZ, the eminent lawyer bares his mind on the proposed amendment of the nation’s Electoral Act, intraparty crises; issues surrounding election petitions and the fallouts.
HOW do you see the proposed amendment on Electoral Act being embarked upon by the National Assembly?
Subject to confirmation, we are likely to have a brand new chairman of INEC very soon. And then, we also have new set of parties that were not part of the last dispensation in 2023, who are also coming into the frame. So this is a good time to look at the electoral act. Tave a second look, a third look, and then come up with something that will help us to sustain, not only the electoral process, but even the democratic process itself. If you all pay attention, you will recall that even when in 1989, we were told that we were going into civilian regime, not democratic regime. All these words are very important in politics. So, I think by now we should be talking about democratic space, not what it was called then, just civilian rule. Civilian rule is different from democratic dispensation. If you look at it, they are two different things. Having said that, I want to salute the National Assembly for even coming up, at this time, with these proposals that we want to put in the electoral act. But many people who are stakeholders may not have the opportunity to attend the public hearing whenever it holds. And I know as a matter of fact, due to time constraint, not every person who has something tangible to say may be heard. So, that’s why I want to thank you for coming around.
You may want to ask, what are my own views? I think I’m a stakeholder in so many respects. I’ve been a player, as a lawyer, in electoral resolutions since 1999, even before then. So, going forward, I’ve taken part as a lawyer in most of the electoral disputes from different levels: House of Assembly, House of Representatives, Senate, governorship, and then the presidents. I’ve been in one team or other in some of these. I think going forward, and we are seeing, just recently at a lecture organised in my honour by the Faculty of Law, Kwara State University KWASU, where the former Vice-President was the chairman, and Chidi Odinkalu was the guest lecturer. The issue of the judiciary came out in bold prints about what the courts are doing and so on and so forth.
Most of the negative perceptions of most people about our courts arose as a result of the courts taking part in making their decisions in electoral disputes. The adverse comments of most people are as a result of one judgment or the other that came out of electoral disputes. So, that’s why it’s quite necessary we must not treat the symptom, but we must treat the disease.
What do you consider the most problematic issue?
The most problematic to my mind about the involvement of the courts in electoral dispute resolution is the power given to the courts, the tribunal, and the courts, generally, that if somebody challenges the election under section 136 of the Electoral Act and is found not to be qualified or didn’t score the required lawful votes, then you declare the person who came second as duly elected. I think that’s problematic. That is why many people believe that there is a lot of arithmetic that they could work to achieve their own purpose as politicians; that anybody who came second, and I had the instance of somebody who actually came third or fourth being declared as governor. So, for me, I think the simple solution to that is let’s remove the powers of the courts from declaring anybody as winner. If you bring your election petition and you succeed, people should go back to the electorate. And like Odinkalu said in his book, ‘The Selectorate,’ we should not give the franchise of five million or 10 million voters to just three people to upturn and make a declaration. I think that’s the first thing that we must hold on to. So, there must be amendment of section 136 and remove the power of either the tribunal or the court from declaring anybody as winner of any election.
Once you succeed in your petition, go back to the electorate. Because you start to question itself, actually, whether that will also be democracy. When five million people vote and then three persons will sit, not only set aside the votes but to declare somebody they have rejected at the polls as a winner.
My own sense of democracy and justice is a bit affected. So, I think that National Assembly should please, I hope, they will find the courage to do it. The powers of the court to declare anybody as winner should be removed. And you will be surprised about the very magical thing that will happen. Number one, the number of challenges to elections will reduce dramatically. Then number two, the powers given to the court, even for issue of inter-party disputes for nomination, we should go back to the position of the Supreme Court in that you don’t interfere in internal affairs of parties. If you join a political party, if they decide to maltreat you, you can go elsewhere. That’s the number one prescription I want to make. That’s okay; if the parties cannot even observe their own internal democracy and things, leave them to it because that’s another problem that is causing a lot of people to think that the courts are not doing what they should do. Two people who fight in their party over who was rightly nominated. You are not the person who was nominated; court will say you are the person that has been nominated.
The courts can never take the position of political parties and their members. That’s number one prescription. But if that power must remain, that the court can declare between A and B on who is the rightful candidate of the party, then the power to say that it must be A should be removed. And you see in the case of Ugukwe and Ararume, where the politicians demonstrated the limitations of the powers of the court to dabble in political affairs. If you recall in Imo State, Ugukwe and Ararume belong to the same party. They went for their primaries. Ugwu was the person declared. Ararume challenged. And the one in the Supreme Court said yes, you are the rightful candidate of the party. What did they do? Even the then president of Nigeria, who belonged to the same party, went to Imo State and told the electorate to vote for the opponent. And that was probably what informed the Supreme Court later when they were deciding Rotimi Amaechi against the Independent National Electoral Commission (INEC). They didn’t stop at, ‘oh, Amaechi was the right candidate.’ They declared him. So, the judiciary needs to take its hands off, because the judiciary is too important. It’s just too important. Before we got to the level where people will no longer at all believe in judicial process, we should do something. These are things we can do. These are things that are within us to do.
I honestly believe, given my little experience about electoral jurisprudence and as an active participant in national political matters. I believe these suggestions, if they are carried one way or the other, will go a long way. So that, at least, we free our judiciary, let them face the normal work of settling disputes between individuals, between government and individuals, commercial transactions, contractual obligations. They will still be doing election petitions. Their job will just stop at, ‘they have not been validly elected, go back to the people. Not for anybody to start to push the court, manipulate the court to achieve certain ends, which will not be by the law and the facts.
If you now ask the courts to tell them to go back for fresh election, wouldn’t that be a burden on the electorate, and the resources to conduct another election?
No amount of money is too much to run a proper democratic dispensation, because the alternative is anarchy, which you can never quantify in monetary terms. And it’s also good to give the people the confidence that they are the people electing those who are representing them. Not for people to go to the polls and then, that’s one of the reasons why people are arguing that the votes are not counted. So, if you want the votes to count, the people must own the process. And the only way they can own the process is that if they have to conduct the election 10 times, it must go back to those who are supposed to vote. Otherwise, what are we talking about? If you recall the case of Al Gore against George Bush, the Supreme Court of U.S. stopped the counting of the votes. Even though it was clear Al Gore was going to overtake Bush. But you see, you have to take deliberate decisions to safeguard systems, to safeguard processes.
Clearly, the decision of the Supreme Court of U.S. in Al Gore against Bush was a policy decision, but to safeguard democracy. So, we can’t be an exception. If it’s a sacrifice we have to make, let’s make it.At least we will isolate the courts from all these unnecessary abuses, name callings. Many of them may be unfounded, but the fact that people are making them, it eats some of us. I mean, when we joined this profession slightly over 40 years ago, it was almost unheard of to say a judge took money or whatever. Now these things are freely said even when they have no substance. So, I quite honestly believe that as much as possible we should be taking steps that will not only strengthen our democratic practices, but will give a lot of credibility to it as well.
Please enlighten Nigerians, civilian regime, democratic regime. What’s the difference?
When you say civilian regime, when Babangida was doing his Option A4 and doing that, that was a civilian regime. Even though, it was supervised by soldiers. There were governors in position. That was a civilian regime. That’s not democratic. When you talk about democratic dispensation, you talk about the totality of what you do are determined by the majority of the people speaking through their votes, through their franchise. That is why it doesn’t look too democratic that 20 million people will vote for and against and three or five people will determine who will occupy the position. If you want to be democratic, then at every time you must go back to the electorate.
Are your proposals to the Electoral Act amendment not indictments against the nation’s judges?
No, they are not. What you push to them is what they say. I argued on the day of that event in my honour. I said lawyers cannot take the lion’s share of the blame. Judges don’t just go on the streets and pick issues to tackle. It’s lawyers like me who go and say these things to them. So, if I do not come before you as a judge to say A, you have no reason to say A because there is no issue before you. Many lawyers don’t care what they take there as long as there is money involved. So, I’m not indicting anybody, not even lawyers, but I’m just saying that if we want survival of what we’re doing, if we want to have a country where you can either practice law or practice whatever, then there must be fidelity to the truth and to what is decent.
How do we get the amendment signed by the President when some Nigerians see the National Assembly as rubber stamp?
You know in relative terms, the National assembly is far far a better shade than the state assemblies. I don’t agree that the National Assembly is a rubber stamp. If you want to believe that the only time we believe the National Assembly is working is when they are antagonistic to the executive, then it is the progress of the country that we are negotiating. They can work harmoniously, but once the agenda is clear, the interests of Nigerians, please let the harmony continue as long as the people are the beneficiaries of the outcome. So, I do not see the National Assembly as a rubber stamp. There are individuals there who are makers and shakers of the environment. We have so many former governors, former ministers, people who have their own names in their respective places. And people don’t want to go down in history as nonentities. So I believe the National Assembly will do what is right if they are properly guided and their attention is directed to the core areas. And I believe the National Assembly does what is right because the President will not have much difficulty in agreeing with them as long as there is altruism in everything.
From your experiences on sitting on election matters, what would you say are the common agitations of Nigerians?
Well, let me first tell you that Nigerians are bad losers. They do it in sports, even in play. Nigerians never believe they can lose fairly and squarely. I’ll give you an example. Other countries of the world have been preparing for the world Cup, immediately the last one ended.
We will start our own at best midway into the new one and Nigerians will expect that we should defeat countries that have worked for more than three years before we started our own. That’s cheating! So, that’s our sense of it. And then Nigerians don’t believe they can lose anything fairly. Unfortunately, for us, even when we lose a match, we must ascribe it to something. We are as bad as that. So it’s the same thing in our politics. This inability to accept that you win-some, you lose-some is a very great problem for our democracy and for our country. As long as somebody wins. And that’s another problem that will be tied to the judiciary, unfortunately. Those who win in court believe the judiciary is the best thing to happen. Those who lose, they think it’s the worst. So, this attitude, I’ve said this in public lectures as well. We must get to a level where we think that, oh, for people for decency sake, it’s not every time your wife looks at you somehow you slap her. You overlook some things and just move on. Otherwise, there will be no home. So, that’s the attitude of our politicians, unfortunately. For every misadventure of wives, it’s like kill them. I don’t say that is the correct attitude. You must have this elasticity of behavior. That, oh, well, give and take. And then you must be able to realize there is always a tomorrow. If you lose today, you’ll win tomorrow and vice versa. All this ‘winner takes all’. And everything must be finished now. I think there is no tomorrow. We must invest in the future. If you don’t win today, tomorrow will be better for you. Is it a new trend or is it a present trend? I think, as far as my knowledge carries me, I think we have this peculiarity. I’m sure in most other countries, when you compete in an election. Frankly, of course, I can say it’s an African problem because I’m also aware that in Kenya or somewhere, something like this happens. Look, presidential election, if you say the winner did not score the majority of the vote, just send them back. Okay, we agree, he didn’t score the majority of the vote. And when you say somebody was not qualified to contest the election, don’t give it to another person. No. Let the party give it to another person who qualifies and contest with the person who has one excuse. Yes. And the kind of quarrel we have about qualification. Yes, very funny. I’m Yusuf Olaolu Ali. My certificate says Yusuf Ali. Olaolu Ali. And you say I’m not the owner of the certificate. Those are the kind of things we confuse here. And based on that one, then you declare him. When no other person has come forward to say I’m not the owner of the certificate. So, sometimes some of these things are like jokes. So, when somebody is not qualified, either by way, by academic qualification, or by their own classified documents, okay, remove him from the thing, let him face trial for his criminal conduct, and then tell the party to bring another person to come and face the man who has won in court. You will see the magic. Next time, I’m sure, 60% of election petitions will not happen. And I’ll share an experience with you. Some years ago, I won’t mention the state. They came to me, they wanted to challenge the election; one of the rich states. At that time, there were two versions of the Electoral Act. Nobody was sure which one was working. There was one where there was no provision for declaration. So, they didn’t come
back. They said nobody will be declared. So I’m actually speaking from experience. So, we should do everything possible to simplify our democratic practice, make it more transparent, make it more acceptable, and make it less expensive.
Ahead of this public hearing, what do you think is salient, apart from this position of maybe the judges, because you don’t declare..
Another salient thing is about the uploading and uploading results. In this day and age, it shouldn’t be difficult for us in order to promote transparent and credible elections. It should be transmitted. My position is that if there is difference between the transmitted result and the hard copy, you must just throw out the whole of the election and let people go back. The court should not be saddled with the problem of having to do mathematics, having to examine electoral documents. The court should just deal strictly with straight facts, marry with the law. All these verbal and intellectual gymnasium should not happen.
What will your advice be to the new INEC chairman?
I can assure you that for the INEC chairman, I have access to him. So if I want to give him an agenda, I won’t have a problem. I’ll probably talk to him. He’s my colleague. He’s a brother. If you recall, last year at the KWASU lecture, he was the first person who gave a lecture, he was the discussant of the paper. He was the person who discussed the paper and he came because I invited him. So, I have access to him. Now, all I’m trying to say is that all the impediments that make our democracy a bit awkward, we should discuss them. All the things that promote transparency, we should do. All the things that bring our judiciary into ridicule and odium concerning election matters, we should not allow it to happen. And that is the basis of my call. And to remove most of the allegations of corruption, rightly or wrongly, that people label against the judiciary when it comes to election matters. I say rightly or wrongly because Nigerians are very good in making allegations. They are not ready to substantiate. That’s one of our predilections as a nation. We are people who can never hold on to what they think is happening somewhere. Even when there are witnesses to it, they won’t want to be part of being in it there. All these proposals will strengthen democracy and it will make it easier for people to understand where we are going. You know for sure that if A challenges B on election and B is called back to contest or his election is nullified, he is not going to be declared. Let him go back to those who are entitled to elect people, the electorate. There should be no shortcut.