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By HANK ESO 

Nigerians are habitually inattentive to their Constitution. Rhetorically, the Constitution is the source of their inalienable and civic rights. Our secular Constitution, which lists fourteen “Fundamental Rights,” is the law of the land. In all non-ethereal matters, the Constitution confers authority and legitimacy. Accordingly, no nation advances progressively by compromising her Constitution, the rule of law, or by shirking due process.

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It is common knowledge that Nigeria’s rule of law is constantly challenged. Thus, Nigerians have habitually become scofflaws. Paradoxically, the freedom to choose is a powerful liberty often taken for granted. So, while ordered liberties may protect civil disobedience, they do not countenance breaking the law. But the freedom to undermine the law happens frequently, not by convention, but more by convenience, non-compliance, resignation, and impunity. This challenge is so due to the accommodation and tolerance of what is not legal.

Often, those entrusted with the responsibility for upholding the law in Nigeria end up abrading the law by debasing the Constitution. Putting Nigeria’s rule of law challenges in its proper context requires borrowing from Kahlil Gibran’s seminal book, ‘The Prophet’: “Then the lawyer said, But what of our Laws, master? And he answered, You delight in laying down laws, Yet you delight more in breaking them. Like children playing by the ocean who build sand-towers with constancy and then destroy them with laughter.” When government agents routinely refuse to appear before the courts or honour subpoenas without consequences or reprisals, they debase the law and take “delight more in breaking them.”

The responsibility for upholding and interpreting the Constitution falls, among other things, on judicial officers who, under oath, solemnly swear/affirm to “…be faithful and bear true allegiance to the Federal Republic of Nigeria; …. I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law that… I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria.”

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Nigeria’s Constitution is not upheld, preserved, protected, and defended when those charged with these responsibilities demur. Furthermore, the Constitution is debased when its provisions are snubbed, ignored, misinterpreted, or jettisoned due to external pressures, inducements, or primordial considerations, including self-preservation and enlightened self-interests. Therefore, the ultimate responsibility of appointed judicial officers, regardless of their ranking and nomenclature, is always to assert rightful judgment.

Meanwhile, faithful compliance and adherence to constitutional dictates, or lack thereof, is again front and centre in Nigerian politics regarding the contested 2023 presidential elections. Serious constitutional issues have arisen, and Nigerians are watching with bated breath to see if the Nigerian judiciary will have the gumption to uphold the law or cursorily debase the Constitution by rewarding discernible electoral fraud.

This much is clear: The 2023 Presidential election conducted on 25 February 2023 is being challenged by election petitions because it was not properly and faithfully conducted by the Independent National Electoral Commission (INEC) in accordance with the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act, 2022. Three political parties are currently challenging INEC in court. Claims persist that INEC did not meet the requirements of the doctrine of substantial compliance. Through such dismal failings, INEC has set the stage for a constitutional crisis, which the judiciary can now only resolve. For agents of the APC presidential candidate, the sole beneficiary of INEC’s rogue decision, to threaten “anarchy and chaos” if the egregious decision is reversed is the ultimate assault on the Nigerian Constitution and judiciary.

A single breach of the Constitution is one too many. Related to the 2023 presidential elections, the judiciary must make pronouncements on four identifiable and distinct constitutional violations. These fall within the realm of Section 134 of the Constitution, which deals with “Securing 25% of votes cast in the Federal Capital Territory, Abuja”; Section 137 of the Constitution, which deals with “Disqualifications”; and Section 142 (1) of the Constitution, which deals with valid and invalid nomination of a Vice President.

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First, under Section 134(1)(b) which raises the question: does it amount to a constitutional breach to declare the candidate of APC the winner of the presidential election where the party failed to score 25% in Abuja FCT, as prescribed in the Constitution? According to election results declared and published by INEC, the APC, which scored 18.99% and failed to secure 25% of the votes in the FCT, ought not to have been declared the winner.

Second, as per Section 137(1)(a), a presidential candidate becomes ineligible and “shall not be qualified for election to the office of President if… 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…”

Third is the question of constitutional issues relating to dishonesty or fraud. Section 137(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999, provides: A person shall not be qualified for election to the office of President if; (d) “…or fine for any offence involving dishonesty or fraud (by whatever name called) or for 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…” Interestingly, this provision is not statute-barred. There is also a precedent and the Supreme Court’s interpretation of the scope and import of forfeiture.

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Fourth, a serious question arises under Section 142 (1) of the Constitution, which states that “a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President…” The APC Vice-Presidential candidate’s valid nomination remains in contention.

There are other issues of abrading extant electoral and criminal laws that crave adjudication and rightful interpretation. That responsibility has fallen on the judiciary by default, not by design. These include interpreting stricto sensu Sections 33 and 35 of the Electoral Act 2022, pertaining to the invalid and double nomination, respectively. Other qualifying or disqualifying aspects pertain to forgery and the commission of perjury by willfully submitting bogus and forged documents.

Nigeria is in a conundrum and in a disconcerting quagmire. She confronts a constitutional crisis orchestrated and foisted on it by INEC. Indubitably, INEC performed dismally and negligently. It is manifestly dubious to swear a candidate into office on a false premise, especially where the constitutional requirements still need to be met. Now that such has happened, it becomes imperative for the custodians of the law to either uphold or debase the Nigerian Constitution. The singular exit strategy is clear. Only by interpreting the Nigeria Constitution rightfully can we promote, entrench, and defend a strong national government, not by doing otherwise. Ethical consequentialists suggest that as we advance, the choice is stark.

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ESO is a governance and public policy expert.