In Nigeria, our constitutional practices are sometimes not properly considered. We fill our constitution with provisions that are inconsistent or raise implementational incoherence. Think about the requirement for a president to win 25% of 2/3 states of the federation AND the FCT. We probably never factored how the linguistic and the political economy readings could pose a tension in circumstances like the one we have now, where the only candidate who got 25% in the FCT was not declared as the winner. But simple language tools tell you that that sentence means you MUST get at least 25% in the FCT. Political economy imperative tells you that you must get 25% in the FCT because you would be exercising executive authority directly on residents of that territory unlike other residents of Nigerian states. Unlike Washington in the District of Columbia, the FCT does not have a mayor. The president exercises executive power and the National Assembly, where it has a Senator and two House of Representatives members, makes law for it. Of course, any such law for the FCT will be consented to by the President. Now the linguistic and constitutional meanings of the provision run against the common sense of some Nigerians. This is why it is resented by alleging that we are giving the residents of the FCT a veto power over residents of the states. But that is the meaning of the constitutional text. This means we should be more considerate in enacting laws and imposing constitutional practices.
The same is the case with when a President-elect should be inaugurated. There is no constitutional text that says when a president-elect should be inaugurated. May 29 is the day a president who was inaugurated on May 29 four year ago should vacate office. No more no less. Now we have established a practice of also assuming May 29 should be the day to inaugurate a new president even if his or her election is still hotly contested in court.
In the US, all cases must be settled before the date Congress must meet to certify the results from states. Once that is done the President-elect becomes irremovable except by impeachment, resignation, or death. You do not have a President exercising the full complement of Article 2 power and still facing a legal challenge that could end his presidency. That is a conceptual illogic. The President assumes the office of President because he has satisfied all legal merits for that office. It should never be open to further judicial review after assumption of office.
Here in Nigeria, we continue on an error. We entrust presidential power to persons who are still fighting in the courts to justify their election and hope that the wheel of justice will be left to grind surely. That is a risk. We are threatening the institutions of justice and national stability.
But Nigerians care more about winning than preserving strong & just institutions. Why have an electoral system that allows a person whose election is challenged in court to exercise the power of Commander in Chief? We should end all cases against the President-elect before inauguration or delay inauguration. Thankfully, the constitution makes provisions for succession in such unusual circumstances. The Senate President- current and the one that comes in on June 13- acts until final legal determination.
The same applies to state governors, although they have less risks. No state government is a commander in chief and cannot direct police, DSS or the military to disrupt judicial proceedings or hold back power after being invalidated. But a President can do so because he or she is a commander in chief and has extensive power of coercion and corruption especially in an electoral autocracy like Nigeria.
The futile efforts of President Trump to deny the certification of Biden’s victory tells us what incumbency could do in a more established democracy. If iron can rust what about wood?
We need to rethink this practice. Yes, courts should try and finish the cases even if there are errors than maintain this conceptual logic that a person whose election as President is being challenged continues to exercise the power of Commander-in-Chief of the Armed Forces.
We have done it in the past. It is bad. In 2007, Yaradua ought to lose his election. But he survived mostly because he was Commander-in-Chief. But that honest man recognized the fraud and embarked on a comprehensive electoral reform. Those who came after him were not as honest.
NB: Dr Sam Amadi, a lawyer, is former Chairman of Nigeria Electricity Regulatory Commission(NERC).
