The former Dean, Faculty of Law, University of Lagos, Prof Oyelowo Oyewo, speaks to TOBI AWORINDE on the Osun governorship election and the controversy surrounding national interest against the rule of law among other issues
What are your thoughts on the alleged move to impeach the Senate President, Bukola Saraki?
The first thing is to say there is no such thing as impeachment of Saraki in our constitutional law. What the constitution provides for is the election or selection of the Senate President and other principal officers constitutionally recognised by a special majority vote. Now, the relevant constitutional provision requires a particular percentage of the majority to elect the President of the Senate. What has been contentious is whether or not the part majority relates to the total number of the members of the Senate or the number of members of the Senate that are present at the time when such a removal is to be done. But from the position of the constitutional interpretation by our courts, such provision relates to the total number of senators and not the number present.
If, for instance, you require a percentage to form a quorum, then the meaning of that provision that makes the requirement for a two-third majority will be lost. It is a game of numbers. The question is, between Saraki and the rest of them that have crossed over to the Peoples Democratic Party, there is no Reform All Progressives Congress anymore, so the gloves are off. Basically, the question to ask is whether the APC can muster the requisite majority to remove Saraki. If it can, then of course, it will remove him. But if it cannot, then of course, it will not remove him.
But the APC leadership and senators are saying two-thirds of the members in attendance at plenary can remove the presiding officers.
I think the fear of the PDP is that if the second interpretation is given, which is that they don’t follow the requirement of the majority using the total number of the member of the Senate, and they just use two-thirds of the majority of those that are present and then they decide to remove him and use the authority of incumbency in the national government to implement it, then Saraki will be pushed out and that possibility exists, particularly in the light of the insistence by the Chairman of the APC, former Governor Adams Oshiomhole, that Saraki will be removed. If the facts are to be followed as to the number that has cross-carpeted and the number (still) in the APC, it doesn’t appear as if the APC will have the necessary majority under the constitutional requirement of the majority of the total number of the Senate. However, in politics, all is fair.
So, I think it is that fear that Saraki has that he has done tricks on them; it is probably payback time. If they remove him and swear in somebody else, he will be out and then he will have to go to court and the courts take a lot of time. Even if he has an injunction, he will be out. And if he is out, he will lose the leverage and the influence that he is asserting as the President of the Senate for the 2019 elections and, of course, you know that the Office of the Senate President carries a lot of resources, which means that the monthly financial resources that he depends on to counter the Presidency will be lost. So, the stakes are very high; that is why the politics appears to be winner-takes-all.
What is your take on President Muhammadu Buhari’s view that national interest is above the rule of law?
I believe it is not surprising that the President should state that. You must understand that this president, first and foremost, is a military man. Secondly, he is a (former) military head of state and he’s been used to maximal exercise of power. So, he is contending with the constitutionalism that the rule of law imposes on him and I think he has not grappled with the constitutionalism and the practice of the rule of law that the constitution suggests. Obviously, he is way off the mark because if you look at Section 1, Subsection 3 of the constitution, it says this constitution is supreme. What it means is that the constitution by Section 1, Subsection 3, institutes the concept of rule of law and constitutionalism as dictated by terms, conditions and provisions of the constitution. Anybody that thinks one subjective interpretation of national interest will override the rule of law misses the point; he is way off the mark. It shows we do not have a problem that has imbibed democratic values or practices, and that is very sad because it explains a lot, particularly with respect to security and respect for human rights.
By virtue of Section 6, Subsection 6, there is a concept of constitutional judicial review that vests in our courts the role of being the projectors of the constitution and the interpreters of the standard that every arm of government must conform to. So, executive behaviour must conform to constitutionalism and the rule of law, otherwise you have executive lawlessness. That is why there has been a lot of lawlessness at so many levels. If that is the interpretation, which is what explains what the former (Director-General of the) Department of State Services (Lawal) Daura did. Can you imagine somebody saying national interest dictates invading another arm of government? What kind of national interest is that? Not only invading but wearing masks. In fact, that tells you the danger of what the President said. He probably meant that national interest, in some instances, have to be considered but for him to say national interest overrides the rule of law, it means that he doesn’t understand the oath of office that he has taken or the enormity of the constitutional democracy that we practise or even the role that he is supposed to perform in the interest of the generality of Nigerians that is to be guided by the rule of law.
With the growing concerns surrounding vote-buying, what are your expectations of the Independent National Electoral Commission in the forthcoming Osun State governorship election?
With respect to the elections and vote-buying, it goes as far- back as all the bodies that have been set up before to investigate problems with our elections. Vote-buying has always been there. Vote buying, campaign finance — all these things are unregulated even though they are provisions of the electoral law, though the question is, what is INEC doing about it? The truth of it is INEC is incapable of doing anything because INEC has actually brought out proposals based on the (Justice Mohammed) Uwais report, that is, the electoral committees report.
Unless there is a supernatural power that INEC is going to exercise, it is not going to be able to really do much with respect to voting. We saw it in Ekiti, and already, we’re seeing it in Osun now. You can do vote-buying by using government money. See what the governor of Osun State has done. On the eve of the election, he has released N19bn as arrears of salaries. What is more than vote buying in that? Why now? Why are you releasing N19bn into the system? That is vote-buying, my brother. So, vote-buying is more sophisticated than for you to say you are going to be waiting on the day of election. Vote-buying would have taken place and it is already taking place. So, the reality of it is that we don’t have the altruistic interest of having a free and fair election. It’s still winner-takes-all until we do concrete reforms of our electoral process and electioneering methodology.
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