The question of border closure is more economic than legal, says Aponmade

Since the federal government ordered the closure of Nigerian borders, there have been criticisms both from within and neighbouring countries, particularly because of the perceived implications on the economy of the affected countries. For the federal government however, the cardinal reason for the closure was to save the nation’s economy from imminent collapse due to influx of foreign goods. However, several months after, the question is if the purpose for purpose has been achieved. A Lagos-based lawyer and principal counsel, A.O Aponmade & Co. Mr. Akeem Aponmade in an interview with YETUNDE AYOBAMI OJO, speaks on the legal implications of the closure. He also talks about freedom of expression and the likely consequences of gaging free speech.

Since the closure of Nigerian borders, how effective is it on the economy at large?
I am not in a position to know because I have not carried out any study in that direction. Government has been publishing accounts of how this has helped local farmers. Unfortunately, in the last four years, there has been a lot of propaganda being churned out by this government which is why I call the government a government of the insincere by propaganda and for the gullible. Many of us take information arising from those quarters with a pinch of salt. So, it is hard to really know. Let the affected speak out on both sides. Those positively and negatively impacted by this decision. It is possible that we may never know ultimately. This is because between Nigeria and the Republic of Benin for instance, a large percentage of the cross border trade is informal. And this is huge, very huge but it is undocumented. The contributions of this informal sector to Nigeria’s economy can therefore not be adequately captured. However, the millions of households impacted by this informal cross border trade know its importance. They will be affected by the border closure. They will know its effect on their family’s economy and this can then be multiplied to know how it affects the entire economy of the country.

I have heard people argue that the closure was needed to stop Nigeria from becoming a dumping ground for all sorts of goods. They mentioned rice for instance; how Benin Republic is importing humongous quantities of rice and this rice is ultimately smuggled to Nigeria and how this is adversely affecting local rice farmers. For me, those making this argument are applying ancient economic principles. Who says that Nigeria must plant rice? Why are we not planting apple and berries, the types that are sold on the traffic. Modern economic theory has taught us that a country should produce those goods and services in which it has comparative advantage, and should import those in which it has comparative disadvantage. Why are we not concentrating on tubers, oil palm, rubber and cocoa, where we have clear comparative advantage because I am not sure Nigeria has comparative advantage over Vietnam for instance in rice production.

Then importation of rice should not be prohibited and bringing them in through Nigerian ports should be promoted. The income that we stand to make from the products that we can conveniently produce and sell to the world will offset our national expenditure on rice importation. I doubt if this military-type of action will bring the desired result ultimately. Time will tell anyway.

But does such action as closing Nigerian borders with neighbouring countries has any legal implication, especially in the areas of free trade agreement?
Executive powers of the Federation are vested by the Constitution in President Muhammadu Buhari and as such, he has the powers, based on the advice he receives from relevant government institutions, including the National Boundary Commission, to close the borders. I believe the question of border closure is more economic than legal. As a lawyer, though, one will be concerned first with whether or not a particular action was taken in accordance with the law. Mind you, the President has the responsibility to take steps towards protecting the territorial integrity of Nigeria and for the economic well-being and security of Nigerians. As an economic issue, the President obviously believes that this course is the best to take given the information made available to him.

Most Nigerians find it difficult to air their views about the happenings in the country for fear of being intimidated or assaulted by the government. What is the implication of a country where citizens cannot express themselves or criticize the government in power?
Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees for every Nigerian, the fundamental right to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. For Nigerians not to be able to express themselves, this provision of the Constitution has to be abrogated. Then we know that we are in a full blown dictatorship. But I think it is absolutely impossible to silence 200 million people. Any attempt to do so will be futile. Government should be ready for a fight. Any legislation enacted to achieve that end will be tested in the crucible of the law court up to the Supreme Court. With due respect, if there is anything Nigerians know how to do, it is expressing themselves and holding opinions irrespective of whether there is food, water or power. To take that away from them is like taking the very air they breathe in.

I believe you are referring to the attempted Anti-Hate Crime Bill. Nigerians spoke out against the Bill. It is only a government that is afraid of its shadows that would go on that type of voyage. The proposed law was simply a scare tactic against the people to scare them from speaking out their minds. My position remains that even if the bill had become law, it could not stop our people from criticizing this or any government.

Lot of Nigerians called for outright cancellation of that hate speech bill, what is your view is their fear about that bill? Is hate speech actually the same as criticizing the government?
I quite understand the grave apprehension with which Nigerians were looking at the Anti-Hate Speech Bill and fought hard to see that the passage of the Bill failed. That Bill was anti-democratic. It was unjustifiable in a democratic society. I have not seen anyone who is not in the corridor of power who has come out to speak in favour of that monstrous proposed law. This has made me to ask if members of the National Assembly were listening to those people whom they are representing in Abuja. Or is it that they think that they are answerable to the government and not the people? But since Nigerians spoke out against the ungodly Bill, why would the lawmakers continue to have the Bill in their dockets? One seemed to have observed the readiness by this National Assembly to please the President at all cost rather than for them to play the role of checks and balances to the Executive as contemplated in our Constitution. The National Assembly is somehow turning itself to an extension of the Executive.

Sometime ago, some heads of Federal Government agencies were summoned to the Senate and House of Representatives, respectively. Each sent his representative instead, in utter disdain for the elected representatives of the Nigerian people. Rather than take umbrage, the heads of the chambers only whimpered like a child flogged and denied his candy. In fact, was it the Senate President who was reported to have, like a child, blurted out that he was going to report the head of the agencies to President Muhammadu Buhari. This is disgraceful. This is what we could see in the open. Who knows what is going on behind the curtains and at night? Note that this Anti-Hate Bill was a private Bill but Nigerians wre not deceived. They saw the hands of Esau but the voice was that of Jacob. There appeared to be a vested interest of the Executive in this Bill. And with the apparent capitulation by the present National Assembly to the Executive, one thought the Bill would have continued its journey in the National Assembly.

Even without the passage of this evil Bill, some Nigerians have been tormented with the Cybercrime Act. Opinions critical of government are being stifled. That Bill was actually meant to raise the bar by imposing death penalty on offences but those behind the Bill knew what was good for them, and they asked its sponsor at the National Assembly to quietly withdraw same.

There have speculations of flagrant abuse of Federal Character Principle, what do you think should be done when government breaches that principle?
The federal character principle was enshrined in the constitution in recognition of the fact that there are several groups that make up Nigeria. For the purpose of maintaining a sense of belonging in the spirit of nation building, the principle was meant to ensure that no state, no group takes more benefits from the federation than others. Let us face it, when the principle of federal character is violated; there is always a person or body that is responsible for the breach. As a lawyer, I will advise that aggrieved persons should go to court. The frontiers of our civic and fundamental rights were extended even during the military junta era by the bold steps of some courageous Nigerians who dared to question the rightfulness of certain actions of government at that time. Department of State Service (DSS) seized the passport of Chief Olisa Agbakoba (SAN) at a time. The learned SAN went to court to challenge the seizure and the matter went as far as the Supreme Court. It was that case that gave us the authority that the Minister of Internal Affairs has no right to whimsically revoke a Nigerian’s passport. The Supreme Court told the Director General of DSS that the fundamental right of movement guaranteed by the constitution to Chief Agbakoba (SAN) would be worthless if his passport can be withheld from him at the whims and caprices of the government. After the military, some Nigerians have continued to test the law and through their actions, our jurisprudence has been further enriched. Take the powers of INEC to delimit the number of registered political parties. Chief Gani Fawehinmi, (SAN) of blessed memory challenged INEC and got the court to declare that INEC had no such powers. That is the reason we have so many political parties as we have now.

There must be pressure on the government to do the right thing. This pressure can be exerted through public interest litigation. Let the court interpret the law and declare whether governmental actions, and sometimes inactions, are in accordance with the law. One basic lesson in constitutionalism is that public officials must act in accordance with the law. The Constitution provides in section 14(3) for the federal character principle and goes ahead to establish a Federal Character Commission. In the last few days, we have heard of some new appointments by the federal government and there is a controversy going on whether or not this government is observing the principle of federal character. My take is that those who feel sufficiently aggrieved should go to court to challenge the President. Where the principle is breached, there is a cause of action. Let Nigerians approach the court.

There is a lot of clamouring for reformation of the nation’s electoral process. Do you think such reforms are necessary towards the conduct of credible election in the future?
I believe that there are a number of ways by which we can improve on our electoral process. Amendment of the electoral law is one way. Since it is the law that serves as the superstructure on which you build other things, if the law is inadequate, if it contains loopholes that may be exploited, unless all Nigerian politicians become saints, we will continue to experience electoral crisis.

Take for instance the spate of judgments coming from election petition tribunals, unfavourable to petitioners and favourable to respondents. It is not surprising and shouldn’t shock anyone because as long as the rules governing election petitions are the way they are, petitioners will continue to find it hard to successfully challenge election results even in instances of obvious stolen mandates.

I want to highlight just two pertinent issues. First one is the requirement that petitioners must establish that the election was not in substantial compliance with the provisions of the Electoral Act How do you prove that as a petitioner? Did the Electoral officers turn up at the polling station? Did they bring the voting materials? Did the electorate vote? Was the result announced? If your witness answered all these questions in the affirmative during cross examination, you have admitted against your interest that the election was done in substantial compliance with the Electoral Act. Meanwhile, there could be 1,001 things that went wrong at that station during the voting process, which were in contravention of the Electoral Act, which corrupted the process and which ought to ordinarily invalidate the result of the election at that unit.

The second is the prohibition of proxy witnesses. A petitioner is required to produce evidence and witnesses from every polling unit where voting irregularities occurred. And this he must do within 14 days. That you have front loaded the evidence is not sufficient, your witnesses must be called upon not only to tender them but to speak to the evidence or else it will be regarded as dumping evidence on the court. How many witnesses can you call within the time allowed? And election petitions being sui generis, you cannot apply for an extension of time. Go and look at the records of the Governorship and Presidential Elections Tribunals and you will see how many witnesses they were able to call compared with the numbers of witnesses on the lists of witnesses they filed.

Honestly, it appears to me that the law has skewed the table 49 percent in favour of the Respondent in an election petition already and he needs very little efforts to win two more points to be on the winning side while the petitioner must work for 51 percent to upturn the election result, an almost impossible task. The petitioner is riding against the tide of the Electoral Act. He has a herculean task of surmounting all the hurdles.

The fall out will be a promotion of violence during elections. Nigerian politicians are watching. Knowing how things are going now, they will become wiser albeit more devilish and daring and desperate.

Brigandage and thugery will be the order of the day during elections. If a declared fraudulent winner can hardly be unseated at the tribunal, then every candidate would rather win at all cost and be a Respondent rather than lose and be a Petitioner.

What is your take on the recent election in Kogi and Bayelsa States? Do you think INEC was fair in conducting both state elections?
The Nigeria Bar Association sent monitors to the two states to monitor the election thereat. I know how this works. I was an NBA election monitor in Lagos State during the 2019 General Elections. I know that NBA does not consider political affiliations in picking election monitors. These are members in good standing with proven integrity. Accordingly, their report is certainly a true and correct reflection of what they observed. The NBA issued a report after the election in which it declared that the election fell below the minimum standard of a credible election. The Election Working Group that issued the report raised some fundamental issues. They observed that there were overwhelming incidents of harassment and intimidation of voters and electoral officials, destruction of electoral materials, snatching of ballot boxes and votes and killing of persons. They stated that this list was not exhaustive. There were many acts of violence, some perpetrated by men in police uniform observed by these election monitors. All these they said happened in both Kogi and Bayelsa states. How can anyone claim that the result of election so described is a reflection of the wishes of the people? The election in those states was certainly not free and fair. INEC should bury its head in shame. One had expected that election process would be improving in Nigeria. Unfortunately, that has not been the case especially since the incumbent leadership of INEC came in. And if the leadership continues to follow this path, they may unwittingly be digging the grave of the present Republic. I just hope that they will learn from history. The end of the First Republic was traceable to election rigging among other things, especially in the Western Region. If those running INEC appreciate the potentials that their actions or inactions have to determine the course of this democracy, they would sit up and ensure that they conduct free and fair elections in Nigeria.