A professor of law and former Edo State Governor, Prof Oserheimen Osunbor, speaks to JOHN ALECHENU about the current political situation in Edo, the crisis in the All Progressives Congress, the contentious clause in the Nigeria – China loan agreement, and court orders that gave victories to governors in Imo, Zamfara, and Bayelsa, among other issues
As a former senator and governor, give a general political assessment of what is happening in your state – Edo – at the moment?
At the moment, intense campaign is going on preparatory to the governorship election coming up on September 19, about six weeks away. There is tension and apprehension everywhere. This is not unexpected considering that the stakes are very high because whoever wins will have a rare chance of affecting the destiny of our people by impacting their lives in diverse ways, including the siting of projects, provision of infrastructure and generally stamping their name in history, good or bad. It is my hope that the campaigns and the election itself will be conducted peacefully and without bloodshed. Elections in Edo State have generally been peaceful and I expect it will be so again this time.
The governorship election is coming up in September and with the polity already heated up, what can and should be done to avoid violence?
The candidates themselves and party leaders should eschew hateful and inciting statements. They should rein in on the excesses of their followers and supporters. Everyone must abide by the rules and comport themselves in accordance with the law. The security and law enforcement agencies have a duty to be proactive by deploying their intelligence-gathering apparatus to pre-empt and avoid violence.
The APC which is your party has had its share of turbulence at both the national and state levels. The incumbent governor, Godwin Obaseki, had to leave to join the Peoples Democratic Party. With the benefit of hindsight, do you think the situation could have been better managed?
Absolutely, the situation could have been better managed. It is not just a matter of hindsight, because I foresaw the danger and so did many others who tried to broker reconciliation and restore calm in the face of the looming turbulence. Crises within political parties are ordinarily not unusual, especially for a ruling party like the APC. Every major political party at one point or the other experiences internal dissensions and upheavals. However, it is the ability to resolve internal crises that shows true leadership. With regard to the events leading to the exit of Governor Godwin Obaseki, I tried my best to broker peace to no avail and so did many others, including the Christian Association of Nigeria. I will refer you to my press statement published in the Vanguard Newspaper of June 6, 2020 as well as in many online publications. In the publication I pleaded that the crisis should be quickly resolved by the national leadership of the party, otherwise the PDP would be gifted the governorship position. That caution has turned out to be prophetic. Edo State is now, regrettably, a PDP-controlled state even before the election and the APC will be going into the election as an opposition party.
Some say the ex-APC Chairman, Adams Oshiomhole, is finding it difficult to sell Osagie Ize-Iyamu to Edo people because of certain comments he made earlier in 2016. What lessons do you think the party has learnt from this?
There are lessons to be learnt, not just by the APC, but by everybody. It is that words spoken can never be taken back; that you must never say things which you might regret in future and that you must leave room for reconciliation. We must learn to make politics in Nigeria less acrimonious and practise politics without bitterness.
As a lawyer, who was equally active on the floor of the Senate during your time, which aspects of our electoral laws do you think should be amended to strengthen our electoral system?
First, I expect that the flaws in the last Electoral Act Amendment Bill 2019 for which reason the Bill was vetoed by the President will be corrected. Second, we must continue to explore ways by which we can deploy technology to improve on our electoral system. In my time as Chairman of Senate Committee on the Independent National Electoral Commission, we introduced electronic registration of voters. However, there is currently a clamour for the introduction of electronic voting and electronic transmission of results, but we must be wary of booby traps and mindful of our limitations and vulnerabilities. Both the software and hardware to support electronic voting and transmission of results are likely to be imported with hardly any produced in Nigeria. That will make our elections vulnerable to cyber-attacks launched from any part of the world against which we will be helpless to prevent. Can we be certain that election results being transmitted electronically cannot be intercepted and doctored in transit in favour of a candidate who has enough money to hire the best hacker in the world? We heard about allegations of Russia’s interference in the US presidential elections in 2016 by breaching computer systems. If US elections can face cyber threats, what about Nigeria?
Third, I expect the National Assembly to revisit the provisions of section 140 (2) of the Electoral Act 2010 and incorporate it into the Constitution. That provision stipulates that where the election of a candidate has been nullified, the courts should no longer declare any other person the winner but can only order a re-run. The courts have refused to comply, saying that it is unconstitutional, being an attempt to erode their powers. By incorporating it into the Constitution, the courts will have no option but to comply and so bring to an end the current worrisome trend that questions and casts a slur on the integrity of our judicial system.
The crisis that forced Oshiomhole out of the party has 2023 Presidency undertones aside from the local Edo politics. Do you think we have heard the last of such squabbles?
First of all, Comrade Adams Oshiomhole is still a member of the APC as far as I know, though under suspension. He was only removed as national chairman consequent upon the dissolution of the National Working Committee. Squabbles and contests for ideas and positions are normal in politics. Your assumption may be true and you should expect more, not only in the APC, but in other political parties as well.
What do you make of agitations in some quarters that power should return to the South-West in 2023?
It is legitimate and perhaps even deserving for power to go to the South-West. At the same time, we are not unmindful that there are agitations from other zones as well. No zone, except the North-West, should be ruled out at this stage (because the incumbent is from the North-West).
What is your view about the APC zoning power to the South-East in 2023?
The Constitution of the APC does not provide for zoning of power. Some other parties may provide for such. Having said that I recognise that the APC Constitution envisages rotation of power. Every political party, including the APC would normally field a candidate that can attract winning votes.
The Methodist Prelate last week said some parties use courts to get undeserved victories. Looking at the manner you left Government House, do you think this is true?
The Prelate voiced what many people have known and been saying over the years, especially since after the 2007 general elections. We have seen persons who lost elections at the polls and several others who did not even participate in the elections at all being declared winners in the court. In my own case, 203,000 of my votes were nullified, leaving me with 125,000 and the man who scored 166,000 was declared winner of the election after 30,000 of his votes were nullified as well. As you may know, I was a victim of high-level politics involving the top leadership of government. I have tried to put all that behind me, unless people ask questions. Interestingly, the beneficiary, Comrade Oshiomhole, was widely reported in the media on March 4 this year as condemning the judiciary for giving undeserved electoral victories to persons who lost at the polls, describing the practice as “undemocratic”. His frankness is commendable and an open repudiation of the judgment that removed me from office and made him governor. The recent shocking cases of Zamfara, Bayelsa and Imo governorships should serve as a wake-up call that we must halt this disturbing trend of court-ordered electoral victories in the interest of our democracy. The media should spearhead the campaign and perhaps revisit the “cold case files” as we see in criminal investigations in order to expose the injustices that the nation has sadly witnessed in this regard.
What is your take on the issue of zoning and rotation of Presidency?
As I said before, my party’s constitution does not provide that the office of President should be zoned but once a presidential candidate has emerged, the other top elective positions are in practice zoned. This is a matter of pragmatism because if a political party is to do well in a general election, it must ensure that all sections of the country have a sense of belonging in the party. For the same reason, rotation of presidency is also good in order to give every segment of the country a sense of belonging. This will help build nationhood and patriotism. I am aware that some people are opposed to rotation and insist that all that we need is competence but my question is – competence in what field? Who sets the examination question and what is the scoring formula for determining the most competent person? Unless these are known, you cannot in all honesty say that this person is more competent than the other or others. At any rate, democracy is not about electing the most competent person. You cannot claim that the winners of presidential elections all over the world have been the most competent in each country at the time of their elections. The evidence suggests otherwise in most cases.
Would you say the presidential system has worked for us as a nation?
Yes, it has although it may not be perfect and there are rooms for improvements. The main criticism against our presidential system is that it is too expensive. My response to this is that it is the people operating it that make it expensive. Given the same sets of politicians and operators, any other system can be equally expensive, if not more – not only in monetary terms but in terms of political stability, peace and progress. The parliamentary system operated under the 1963 Constitution failed after only two and a half years and that failure cost Nigeria a lot in monetary terms and in human lives. How much cost can you put on the human lives that were lost due to the political instability? The presidential system, which has worked for 21 years based on clear evidence, is definitely preferable to me. Presidential system works well in many countries and there is no reason it cannot work well in Nigeria if the people want it to.
What in your opinion is the reason behind the desperation among politicians to occupy public office?
Not all politicians are desperate. Some are desperate because outside of politics, they cannot sustain their lifestyles and standard of living and will quickly fade out of the limelight. They have no skills, business or vocation to ply nor a second address so to speak. Politicians with a second address tend to exhibit desperation less or practise “do-or-die” politics because they have something they can fall back on and a life outside of politics. It is good therefore to encourage persons with a second address to venture into politics so as to eliminate or minimise the do-or-die syndrome.
Corruption has become a recurring decimal in our everyday life. How can this be tackled?
There is a write-up titled “Chronology of Corruption in Nigeria, ” which has been trending on the social media and which traces the history of corruption in Nigeria from 1947. It shows that corruption is not a recent development in Nigeria. In fact, all the military coups in Nigeria, starting from January 15, 1966 cited corruption as a reason for the coup and yet did not end corruption. On the contrary, they worsened the situation. We need a multi-dimensional approach to tackle the cankerworm of corruption and I discussed these in detail in my Founders’ Day Lecture of the Nigerian Institute of Advanced Legal Studies on March 17 this year. Apart from relying on laws like Independent Corrupt Practices and Other Related Offences Commission Act, Economic and Financial Crimes Commission Act and others, we need more international collaborations of the sort we have through the National Financial Intelligence Unit, which has made money laundering difficult to hide. We need other international collaborations such as the International Standards Organisation Good Governance Models. Above all, we need a change of our value system and attitude which encourages mediocrity and celebrates wealth, no matter the source, ill-gotten or not. The fight against corruption must be rigorous and sustained over a long period in order for it to take root and succeed.
Is the absence of requisite laws responsible for the rising insecurity in Nigeria?
Nigeria has an abundance of laws to tackle insecurity and all forms of criminality, including terrorism, kidnapping and wanton killings which have created a state of fear, insecurity and utter disregard for the sanctity of human lives in Nigeria. Whilst there will always be room for improvements in our laws, the major problem now is that these acts of criminality appear to have over-stretched the capacity of the security and law enforcement agencies. In other words, what is lacking is full and effective implementation of our laws. The situation has been seriously compounded by a myriad of social factors. Foremost among these, in my opinion, is the alarming growth rate in our population, which is probably the fastest in the world. Whilst our population is growing at a rate of over three per cent per annum, the economy is growing at a rate of less than two per cent. The implication is that the population is growing faster than the economy can cope with and this manifests in growing poverty and desperation on the part of many to survive, hence their resort to crime. It beats my imagination that in this day and age, some men can still be bragging about having 30 children or more. Many such fathers may not have the means to provide a good upbringing as well as the time and attention to raise all of those children to be decent citizens. Instead, the responsibility is passed on to the government to provide all the needs of these children and the entire family with little or no contribution from the parents. Growing up under extreme deprivation may harden some of those children as they grow into adulthood and they can easily be sucked into a life of criminality and vent their anger on society. In the olden days, there was good economic reason for men to have large families in order to have many hands working on their farms and contributing to the family’s prosperity. But that has changed. Government has a responsibility to speak up on the population time bomb and take necessary actions otherwise, the situation can only get worse in the future.
There is a raging controversy raised by the House of Representatives that Nigeria has ceded her sovereignty to China over a loan agreement with China for $400m. As a professor of law, what is your opinion?
Like most people, I was amazed that such a thing could happen and I decided to read the said loan agreement by myself. To my surprise and relief, what I saw does not amount to and cannot be interpreted as Nigeria ceding her sovereignty to China which, by the way, is quite impossible. The relevant clause reads as follows: “The borrower (Nigeria) hereby irrevocably waives any immunity on the grounds of sovereignty or otherwise for itself or its property in connection with any arbitration proceeding pursuant to Article 8(5) thereof with the enforcement of any arbitral award pursuant thereto, except for the military assets and diplomatic assets.”
The ordinary meaning of that clause is that in the event of a default in repayment and the lender takes the matter to international arbitration, Nigeria cannot plead sovereign immunity as a defence. Rather, where an arbitral award is entered against Nigeria, it can be enforced against any of our national assets excluding military and diplomatic assets. This is the standard in international investment agreements and Nigeria, being a signatory to the relevant convention cannot avoid its obligations to repay the loan or comply with the outcome of an arbitration. If Nigeria repays the loan, there will be no need to go to arbitration and the question of enforcing an award against our national assets will not arise. What is important is for us to ensure that the loan is utilised judiciously.
By the way, we all know that to borrow money from a bank, you will be required to provide security by way of a mortgage of assets such as a building or factory. In the event of a default, the bank reserves the right of foreclosure and may seize and auction the assets. It is an offence for bank directors to approve a loan which is not secured and they risk imprisonment. In a similar manner, foreign governments can demand security as a condition for a loan otherwise they risk political backlash from their own people.
In the light of revelations in the P & ID case, it is understandable that Nigerians have become wary of arbitration clauses in agreements but there appears to be some elements of exaggeration in this instance.
The PUNCH.