TEXT OF INTERVIEW GRANTED BY ATTORNEY ALOY EJIMAKOR TO MEMBERS OF THE NIGERIA MEDIA ON THE 2007 ELECTIONS AT ABUJA ON FEBRUARY 10, 2008

Q: After so many years in America, you are just back into country. May we know you? 

     A: My name is Aloy Ejimakor. I reside in the United States where I have worked as an Attorney since 1995. I am the Convener of the Organization of Nigerian Lawyers in Diaspora. We monitored the 2007 elections and with regard to the many difficulties encountered with the elections, my attitude and that of most prominent Nigerian Diaspora is that Professor Maurice Iwu and his team at INEC did a marvelous job of transiting Nigeria from one civilian regime to the other. And this view is shared by many top American policymakers and opinion leaders with whom I am familiar – a shared viewed helped mostly by a team of Nigerian and American Lawyers I co-led to Senator Russ Feingold’s office on July 27, 2007 to make a case for a constructive engagement of Nigeria’s electoral issues instead of the opposite view canvassed by the opposition, which surely would have isolated and hurt Nigeria. I believe that the shortcomings noticed during the elections are insufficient to warrant isolation of Nigeria or nullification of the election. Therefore, in deciding the ongoing election petitions, the tribunals are expected to be averse to some notion of strict liability for every violation of the statute, unless there is robust evidence that the violation substantially affected the outcome of the election. With particular regard to the presidential election, it is my considered view that the Tribunal should let it stand. And if this should happen, it will represent a complete vindication of Maurice Iwu because the presidential election is the only one over which it can be argued that he had complete legal control as the chief returning officer as opposed to the governorships and others which were statutorily under the exclusive control of the Resident Electoral Commissioners Iwu could not overrule.

Q: How would you compare anticipation of justice between America and your native Nigeria? 

    A: In terms of core legislations and black letter law, there are several similarities. And of course, our Constitution is a version of the US Constitution, as amended and interpreted over the centuries. But where the difference is marked and clear is in terms of the many nuances brought by America’s pure federalism as opposed to Nigeria’s, which still lacks some of the core elements of a truly federal system. And then there is the irony. Before the 2007 elections, the then AGF Bayo Ojo issued advisory opinion to INEC to follow through on the indictments issuing out of EFCC, the Commissions of Inquiry, and the White Papers, all as grounds of disqualification to run for office. This is besides the string of Appeal Court rulings sustaining INEC’s power to disqualify or exclude for cause. Professor Maurice Iwu did the right thing by adhering to the legal advice of Nigeria’s chief law officer, having been emboldened by the Courts of Appeal. In the US, the election umpires would have also done the same thing. This comports with modern notions of constitutionalism. The difference is that in Nigeria, everyone now seems to have ignored this and taken to criticizing Maurice Iwu as if he acted arbitrarily; whereas, in the US, if the disqualifications or exclusions turned out to be wrong, it is the AGF or the judiciary that should become the fair target for criticisms, if at all.

Q: What are your views on the nullification in Kogi and the others that might come? 

      A: Anybody gleefully rooting for a rash of nullifications should also contemplate the spectre of no-election or the grave nullification of Abiola’s election in 1993. Therefore, as the Tribunals weigh the various requests for nullification, the learned justices will do well to consider the uniqueness of the Nigerian federation, and also consider whether the framers of the Electoral Act really wanted otherwise good elections to fall for every infraction. One might say with some justification that some isolated cases of exclusions or other irregularity merely constitute technical violations or omissions in ordinary course that can hardly justify the extraordinary remedy represented by nullification. In the United States, the learned justices there call such technical violations ‘excusable neglect’, and as the phrase implies, they are excusable, and if standing alone, can never be seen to strictly require quashing the outcome of an election. With regard to the Kogi case, the tribunal felt compelled to nullify solely on the strength of a contrary ex post facto Supreme Court ruling - meaning that the Supreme Court ruling is being applied retroactively. This is the kernel of the ruling which the media needs to stress to the Nigerian people for a better understanding and debate of the legalities of the 2007 elections. Blaming Maurice Iwu or INEC for merely acting within authority of extant law won’t cut it.

Q: Are you are saying that the Tribunals might be applying laws retroactively?

     A: This is one important area the Electoral Reform Committee needs to look at so that Tribunals are not forced by passage of time into rendering judgments that tend to confuse our strict constitutional system by raising the spectre of retroactivity of laws – be it legislation or a judge-made law. A democracy should be very conscious of rejecting any notion of retroactive application of her laws. Better practice seems to support the postulate that if your rights were breached by some law that is no longer good law, then you try your hand next time around and you could prevail on the tenor of the new law that now favors you. The right to hold political office can never be said to be so vested and absolute to the point that Nigeria must pedal back all the time to accommodate every infringement, otherwise we may come to the point where a Shehu Shagari and others who lost their constitutional tenure and mandate due to illegal and violent sack of their government may begin to file legal actions to be restored to office. The dangerous judicial remedy of mass cancellation of elections in a young and fragile democracy like Nigeria requires more circumspection and judicial conservatism than the need for the judiciary to be seen to be independent. Ours laws must be interpreted in ways that must not threaten our survival as nation.

Q: It seems the Tribunal rulings have put INEC in very bad light before many Nigerians

     A: Yes, because of the general tendency to spin, parse and distort. And the media has not fully explained the true meanings of these rulings to the average lay Nigerian. But those who have devoted some intellectual downtime to studying the rulings are likely to posit that INEC and Maurice Iwu did their best under the circumstances. Election flaws or exclusions have been discussed enough, and again, in a way that seems to ignore the duplicity of the political class – all in an attempt to single out one man for scapegoating. And the secondary point to consider is that we may have come to the point that endangers our democracy and stability should we continue to so carelessly continue this voyeuristic harassment of INEC and the government of the day. Whilst some people might recoil at my directness, candor and neo-legalisms, I will be mindful to put matters into proper legal context and hope for a better and richer understanding hereafter. Nigeria should not be belittled for the historic leap it made with the 2007 elections.

Q: What is your advice to politicians, the political parties, PDP, AD, political class generally?

    A: For most of the West, especially the European Union, there is this rampant tendency to rush to conclusions that elections held in countries that the West fears, loathes or does not understand are never free and fair. The West does not understand Nigeria. If you don’t know by now that the West considers candidate Abubakar Atiku pro-West and President Yar’Adua, a closet anti-West or too Islamist (and frugal, meaning - a radical socialist that may prefer China), then you have not been reading everything out there. And more to the point, Yar’Adua’s fiscal conservatism in Katsina when he was Governor was mis-characterized as neo-socialist by a naïve West that looked forward to an Atiku they believed through his PR spin in the US to be anti-socialist and thus more representative of any Western desire for a President likely to draw down Nigeria’s hard currency reserves to finance high technology acquisitions from the West. Therefore, our politicians need to do some serious contemplation of their patriotic duty and remain vigilant to protecting Nigeria from the sort of misguided interference in our electoral process that led to the debacle in Kenya. In other words, we should learn to accept our democracy as it is while working patiently towards attaining the idealisms and stable order that took a helluva of political hard work and give-and-take to achieve in other climes that started before us. All victories or good things don’t have to come in our lifetime.

Q: What is your take on the petitions challenging Yar’Adua’s victory? 

     A: Let me put it this way. That Dr Orji Kalu and other odd 50 (or 24) presidential candidates did not file petitions against Yar’Adua is relevant and probative evidence that the presidential election must have passed statutory and political muster and impeaches the merits of any claim to the contrary. Concession of electoral defeat by an opponent is the first starting point to determining the legitimacy of an election, and concession by some fifty candidates is some concession indeed and cannot be ignored when deciding whether the election should stand or not. In the United States, Al Gore’s initial concession of victory to Bush based on initial results collated from statute-mandated machine count of the ballots as opposed to a manual recount was part of the material evidence that emboldened a politically-conscious US Supreme Court to stop the recount and affirm the initial declaration of Bush as winner. As regards our own, AC and ANPP’s poll agents accepted and signed off on the REC-collated final results of the presidential poll before Maurice Iwu went to press with it. So, how can anyone now claim that there was no election in some 29 states when their agents had contemporaneously signed off on the results of elections conducted in those states? What happened to the basic law of agency that binds a principal to the actions of his agent? And if you look at the spread of the party’s performance in the state/national assembly and governorship elections, you will notice that the parties maintained just about the same number of votes they garnered in the presidential election. If aspects of the election were irregular, I would say they are too minuscule to constitute grounds for disturbing the final outcome. Mistakes are bound to be made along the way, but as good and conscientious citizens, we will all do well not to overplay them.

Attorney Ejimakor can be reached at alloylaw@yahoo.com