APC deploying perverted legalism on its caretaker issue — Buhari Yusuf Esq

Laws, however divine in origin and institution, would be found of little coercion among men, were the administration of them not committed to mortals.

–       Norman MacDonald

APC deploying perverted legalism on its caretaker issue – Buhari Yusuf Esq

Buhari Yusuf Esq. is an Abuja-based lawyer. In this interview, he speaks on the legal issues involved in the APC leadership crisis, the defection of Zamfara governor, constitutional amendment and others.

What is your take on the controversial split judgment of the Supreme Court on the status of the APC caretaker committee?

I think we need to understand that the Supreme Court gave a decision that opens the legal space for further debate. Don’t also forget that the legality of the Mai Mala Buni committee was not on the table. Don’t forget that the National Executive Committee of APC via their laws has the right to create a committee to function and to undertake all assignments given to them by the NEC. Where the issue arises is whether the committee can appoint a subsisting executive governor to function as the chairman of the party in consideration of Section 183 of the Nigerian Constitution and Article 17(iv) of the Constitution of the APC.

And the statements there are quite exclusive and unambiguous in that they do not require an expert interpreter that where you act as an executive officer anywhere, you will not have the requisite right to hold another executive office and to function concurrently. And then the unanimity of that decision among the leading and dissenting opinion of our lord justices. They have agreed on one thing, that the position of Section 183 of the Nigerian Constitution and Article 17(iv) are pointing to one direction – that you cannot in any way as one person perform these dual functions.

Where they parted ways was that the leading justices were saying that the name of Mai Mala Buni kept appearing as recurring decimal, he is a necessary party but that he is not joined, not before us and we cannot possibly adjudicate on the judgment.

Mary Odili, who led the dissenting opinion, also built a very strong trite principle in our laws that where a disclosed principal is around, you don’t go scavenging for an agent. Therefore, ‘the second defendant (APC) is before us, why do we border with the agent?’ And because of that, she said the political party was properly in court and therefore it can take a position.

Therefore, my point is that I don’t buy APC’s resort to animated hysteria, deploying perverted legalism in order to address this issue; the matter is very simple. APC should be very cautious because the technicality that gave the governor of Ondo victory is so slim that it can be upstaged anywhere. And I think a party like APC ought not to build its political victory on mere abstract hypotheses. 

That judgment is a pointer that APC needs to get its house in order. It should stop dishing out opinions that refuse to address the core issue, that fail to address real issues raised by the court.

Can an ad hoc committee such as being led by Governor Buni be seen in the light specified by the laws?

Yes. I listened to a lot of arguments where some adduced the temporary appointment. That argument is legally wrong because ‘tenure’ is not a mechanically structured period; tenure can be two days or six years. Anytime the committee expired they were given six months extension. Tenure is built by the party in focus and the period agreed. And the constitution is talking about the executive nature of the appointment whether paid or unpaid. And to foreclose the matter, the 1999 Constitution went further to say ‘in any capacity whatsoever’.

Some members of the APC convention committee argue that Article 13(3) empowers the party to appoint any committee, and this being an internal affair of the party can it be an issue?

First of all, you have to understand that the constitution of the APC is inferior to the Constitution of Nigeria. I endorse the point that the NEC of the party has the right to constitute a committee. Even the Supreme Court judgement accepts that. But does that address the issue that the officer in contention is functioning in two executive positions? In Section 1(3) of the Nigerian Constitution, to the extent of that inconsistency, that law is now void.

Evidently, Article 17 of the APC must have derived from the constitution and the same applies to the PDP. So, I think this hubris ought to stop. When you read all the arguments coming out, you know that they are all hanging on a tree branch. There appears to be unanimity among legal practitioners that APC is not really in compliance. And having the experienced same issue in Zamfara, Bayelsa and Rivers is a lesson for the APC. They shouldn’t take anybody with dissenting opinion as an enemy. I respect Keyamo’s position because he was giving his initial advice as a lawyer and now that there is a superior point from the oracles, he changed his position.

Do you suggest the APC should convoke a new congress or convention in this period of third wave of the pandemic?

APC has a lot of creative ways to take them home and overcome this legal landmine, particularly convening the NEC to appoint a new committee to cure this legal shortcoming.

There are cases in the courts over the defection of Zamfara governor, Matawalle. What is your take on that?

Fortunately, I was in court when the Zamfara decision was given. But the judgment did not mention PDP as the sole beneficiary of the judgement. It said any party with the second-highest lawful votes that complies with the constitution. So, PDP would struggle to assume locus standi in this case.

Again, I saw a case in the Supreme Court where the PDP want to remove the governor. I want to believe that the court would probably have a problem creating jurisdiction for itself to hear the case because if you look at the jurisdiction, political parties are not to appear there at the first instance. The original jurisdiction is a state vs state or the federation or National Assembly. 

Under Section 40 of the Nigerian Constitution, Matawalle has the right to move because he is not encumbered by sections 176 and 68(g) of the Constitution as he is not a member of the National Assembly or state assembly. At most, it will be a moral issue and we have not started the process of moralizing our political conversation in Nigeria. So, there will be a serious issue there. 

On constitutional amendment, different calls are being made. What is your view? 

You see, Nigerian intellectuals are what I call ‘high-sounding nothing’. Before the commencement of the present amendment, there was this hue and cry and we thought there would be some serious drama and some amendments to address the issues, but in the end, nothing came out of it but confusion.

This happened because it is only in Nigeria that we celebrate constitutional amendment. In developed democracies, they do it without drama. The American constitution is over 200 years old, written in 1787, and still goes through amendments. In Nigeria, we think it should come in one fell swoop. It doesn’t happen because society is organic and as it moves, it has an in-built mechanism to address contradictions that come up. Here, we easily recede to our ethnic cleavages. 

You remember the issue of ‘restructuring’? You have one word which has different meanings to different peoples and zones. There is no convergence of opinions on that. But I want to believe that societies go through restructuring without knowing it, either by attitudinal, mental or physical restructuring. 

It is not just a replacement of the constitution; it is the normal development of the society that is in tandem with culture and tradition and with democratic pace. We cannot change everything as simple as we expect. A four-year-old child cannot seek to grow a beard.

What is your view of secessionist agitations?

The Nigerian constitution is explicit and unambiguous in describing secession as high treason. Sections 1(2), 2(2), 33 to 46, chapters two and four of the constitution have not donated any right to secede. It, therefore, means that any agitation in whatever mode or characteristic is high treason because none of the provisions of the constitution encapsulates or envisage the right of Nigerian citizens to agitate for the purpose of yanking off any part of Nigerian geography.

It is the same with the American constitution, the country that prides itself as the bastion of democracy. The 14th amendment and the decision of the United States Supreme Court make any attempt or actionable efforts to secede as treason. No Nigerian has the right to attack security platforms and to kill security personnel. 

What’s your take on the Abba Kyari imbroglio?

This is an issue that is generating a lot of interest and to some extent, contradictory coincidence. Abba Kyari’s name is synonymous with the success of the war against pernicious and insidious crimes in our society. He is a personification of a dreaded super cop, who against his personal well-being puts himself in harm’s way.

Now, here is a country faced with a request from a friendly country that has been assisting us with intelligence and collaboration in our war against insurgents and killer secessionists. We need the US more than ever before; now that the war is becoming asymmetrically stubborn. This is the miasma that Nigeria has gotten itself into. We need a way to balance the delicate scales.

Our extradition treaty with the US must be activated to give way for normal legal and judicial processes involving different stages which will apparently take time.

Former military president Ibrahim Babangida recently spoke against zoning of political power. What would you say on that?

Firstly, in democracy, the right to choose who you want is the fulcrum – the heart of democracy. Zoning doesn’t elicit consensus. In fact, Section 132(4) of the Constitution makes the entire federation a single constituency for the purposes of the election. 

Again, historically, no Nigerian leader was ever elected on the basis of rotational arrangement. Shehu Shagari enjoyed the support of the South-South; Shehu ‘Yar Adua defeated Falae in the South; Abiola defeated Bashir Tofa in Kano; Obasanjo defeated Abubakar Rimi and Gemade in the North.