‘Going to secondary school without sitting for examination is enough to contest election’
The controversy generated by the discovery that the presidential candidate of the All Progressive Congress (APC), Muhammadu Buhari, did not attach copies of his credentials to his forms is yet to settle. The argument is endless. But in this interview with Joseph Onyekwere, an eminent law teacher and a Senior Advocate of Nigeria, Professor Taiwo Osipitan, insists that the law allows Buhari to exclude copies of his credentials. He also spoke on other topical issues.
WHAT are the qualifications with regards to running for any public office in Nigeria?
The relevant provisions provide for the minimum requirement of the school certificates but unlike the school certificate which you and I know of, section 318 of the constitution has defined school certificate in a very elastic and accommodating manner. Paragraph (d) of 318 (1) makes it elastic as to include any other qualification acceptable to the Independent National Electoral Commission (INEC). So you don’t have to go to the secondary school, to be able to contest election. It may very well be that you may be asking that the law be reformed in this area, but as it stands today, any qualification acceptable to INEC is enough to make you contest election.
Even if it is a first school leaving certificate?
If it is a first school leaving certificate, then you must have had experience in public sector for a minimum of ten years plus attending courses in institutions acceptable to INEC for a total period of one year. Otherwise, you can combine all the courses together. Once you have shown that they are up to one year, it is okay. Then finally under the same provision, INEC must certify that you have the ability to read and to write. So, it is as low as those three, namely, school certificate, first school leaving certificate and attendance of courses in addition to the ability to read and write English Language. You also have school certificate being defined as meaning you being educated to secondary school level. You may get to form five and may not sit for examination; you are educated to that level. You may sit for examination and fail; you are educated to that level. The final one is the one that talks about school certificate result. So, any of those qualifies you to contest election, not only for the office of president, but any other position such as deputy governor, Vice President, senate, House of Representatives and others so long as you have the prescribed age requirement plus school certificate, which I said includes any qualification acceptable to INEC. Just going to school without sitting for exam is enough.
Then what does the law say about attaching your certificates to the forms?
It is the electoral act that prescribes that you should attach papers to your form. If the attachment is there fine, but if it is not there, one will have to test the validity of that electoral act against the backdrop of the constitution. My take on that is that the constitution is the supreme law of the land. It is what we call the grundnorm, the mother of all laws. Any law that takes away anything which we have in the constitution is null and void. Therefore, even if that provision is there, for the fact that it is taking away the right given under the constitution, namely unhindered right to go and contest without attaching certificates. It is in conflict with the constitution that gives you elastic right to go and contest without attaching certificates. And I kept on saying that it is not by certificate alone that you prove that you went to school, an affidavit is enough, testimonial is enough, a letter from your principal is enough. And if you don’t attach anything, because it is a public document, it is presumed that everything you said there are correct. Whoever is saying it is not correct must bring his own evidence to show that it is not correct. Those documents (INEC forms) enjoys what is called presumption of regularity. They are deemed to be correct until the person challenging it brings a contrary evidence.
Some people are calling for the prosecution of the presidential candidate of the All Progressive Party (APC), Mohammadu Buhari on the basis that he swore to an affidavit to happens to be false. He said his certificates are with the military board but the military said it has none. How does the crime of perjury comes in?
In criminal law, there is what is called mens rea and actus reus, namely, doing something which is prohibited and doing it with the required intention. So if indeed he made the statement that they are with the army, those who are alleging that he should go in for perjury must also prove that it was done intentionally and not by mistake or error but that it was done deliberately with a view to deceiving or taking an undue advantage. And I say with the fact on ground; with or without certificate, going by the constitution, he can still contest. In other words, saying it is with the army or not saying so makes no difference to his right to contest. It is only where he could only have contested if he puts his certificate there. That is when you can say well, he was given an advantage. So if a statement from him, showing that he went to a particular school is enough without even showing that he passed, then whether he said his certificate is with the army or not, would not have been the reason for his being cleared because there are other grounds for clearing him. In other words, there is no link or nexus between the alleged perjury and the clearance. So there is no undue advantage being conferred on him on account of that. The element of perjury goes beyond just saying somebody lied. It must also show that the person lied deliberately with a view to getting an advantage, which he would not have gotten. In other words, you are saying that but for the lies, he would not have been cleared. But here is somebody cleared on previous elections by the same INEC, so what are we saying? Assuming there was a lie, which I don’t believe, they would still need to go further to prove what is called mens rea – the intention to perjure with a view to getting an advantage which he wouldn’t have gotten. He has been cleared thrice, so where is the new advantage which he wants to confer through the alleged perjury? So perjury per se, is not a strict liability offence. It is an offence that requires mens rea, namely, proof of the required intention. It is a criminal matter. You don’t just stop at the actus reus, which is the prohibited act of lying. If there is no mens rea and there is actus reus, there is no crime. And if there is mens rea without actus reus, there is no crime. So for you to have a crime, you must have the mens rea and the actus reus.
Do we have any legal provision for interim government?
No. That is why I am saying those who are agitating for postponment of the election and interim government are planning a coup against the constitution. It is contrary to the provisions of section 1 subsection 2 of the constitution that says you can only be governed in accordance with the constitution. That is why the constitution says term of office for such offices is four years. Anything outside the four years is unconstitutional.
Can we adopt interim government on the basis of the doctrine of necessity?
Necessity arises where you have no choice, like when late Yar’Adua was sick and there was vacuum. It is an emergency beyond your control. But this one we are talking, if there is necessity at all, it is self-induced. In other words, people are stimulating necessity as opposed to an occurrence over which you have no control. So it cannot come under necessity. Necessity must be an emergency over which nobody has control. Where some people decide that they want to prolong the office of the president or the governor beyond the period prescribed by law, they cannot hide under the necessity because they have ample opportunity to conduct the election. So if there is necessity at all, it is self induced.
The presidential candidates signed a peace pact in Abuja. Can such be enforced because we hear and read stories of attack on certain candidates during campaigns?
No, that is a memorandum of understanding. It is a gentleman’s agreement without any intention to create legal relations. But it also shows the level of maturity of the contestants. I really appreciate that and congratulate them. In other words, it sends signal to their foot soldiers that there should be elections without rancour and violence. Those contesting for the presidency are gentlemen. But some Hawks surrounding them are the people heating up the system. Deep down, this people don’t have time for the things going on, but some people because of what they stand to gain are heating up the system and that memo supposed to caution them. But whether they have been cautioned or not is left for us to see. I believe that though not enforceable, parties to the memorandum of understanding have adhered strictly to the letters and spirit of the MOU. Setting campaign buses ablaze in some parts of the country is all about the activities of foot soldiers. There is nothing that those people who signed the MOU can do in terms of being able to control the foot soldiers, but it was designed to also call those foot soldiers to order.
Then what do you make of the threats and statements from foot soldiers of the politicians that Nigeria would cease to exist if their candidate lose?
Such statements are very unfortunate. My message to everyone is that Nigeria is bigger than any individual. Nobody has the right to determine whether Nigeria will survive or not because people are praying on daily basis. I want to tell you that God loves Nigeria. Nigeria will live! It will not happen and it cannot happen. I am an optimistic person. Some people because of what they are getting from the present arrangement just trying to distort the system. But when we get to the bridge, we will cross it.
The Chief Justice of Nigeria (CJN) has warned judges not to truncate democracy. This is coming at the heels of various suits seeking to disqualify the presidential candidate of the APC. What is your take on that?
The CJN is just guiding all concerned that there are three arms of government and that the judiciary should play a role. But that is not to say that if judiciary finds something wrong somewhere, they should not say so. Their oath of office is to dispense justice without fear or favour, no matter whose on is gored. But at the same time, they should not be a willing tool in the hands of politicians to truncate democracy. That is the message from the CJN and I believe that it is timely and a welcomed statement.
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