By Innocent Anaba
Mr Ibrahim Mark is the General Secretary of the Nigerian Bar Association, NBA. In this interview, he spoke on many national issues, including zoning adopted by some political parties, which has been described by some people as unconstitutional. According to him, â€œzoning is done to give everybody a sense of belonging. When it is understood in this wise, the heated debate will not arise or will abate.â€On the Independent National Electoral Commission, INEC, chair, Mark said that the appointor of the INEC chair will not determine the effectiveness of the appointee, but other issues, such as the quality of the person appointed, the laws guiding his actions and how the commission isÂ funded. He, however, counseled the new INEC boss to be guided by good conscience in line with the dictates of his office,Â extant law and to be just and do justice to all manner of people, the candidates, the electorate and the country.
Vanguard Law last week published an article by Emeka Umeagbalasi of International Society for Civil Liberties and Rule of Law, in which he said that less than a year to elections, there are many cases still pending at the Court of Appeal from 2007 general elections. What does this portend for the country and what practical measures can the judiciary adopt to ensure that election matters are disposed off timeously?
This has to do with the judicial system, the law and procedure of courts. There is a judicial pronouncement of the Supreme Court,Â that you cannot as the law stands today,Â tie down the time or abridge the time for case life,Â Â in other words you cannot say that this case must end at an appointed time. This judicial pronouncement arose from the fact that there is no statutory provision limiting the time to finish a case.
We are now amending both the Electoral Act and the Constitution to cure this defect. We cannot in all honesty as a developing nation, pretend to avoid this teething judicial problem. Whatever mechanism that is in place, definitely people will ingenuously try to get around it for their own benefit. Technicalities, though abhorred by the highest court in the land, litigants still rely on it to get around knotty issues that have defied easy judicial solutions.
To therefore answer your question to what this portends for the country. It is not easy to isolate this from the general malaise in the country. We have not developed to where we find or regard the courts as the adjudicators or an institution that settles dispute. We first and foremost see a person who has taken us to court as an enemy. It is a war like situation.
We must address our attitudinal disposition to issues. Do we accept result of elections both internal and external? Why do we as a people see elections as a do or die affair? If our intentions are for the purpose of service to the people, do we have to kill to serve the people?
We are not saints and are not expected to exhibit saintly dispositions but minimally,Â we have to show that no matter the situation we find ourselves,Â we have to re-invent and re-engineer the progressive wheel of democratic civilization. Hopefully, the Nigerian nation will overcome this retardation. It is not uncommon or unusual to face the problems associated with complicated developing nations like ours. The future is bright and there is light at the end of the tunnel for our dear country.
It is not true or good to lay the blame for delay in justice delivery on the doorsteps of our courts. These endemic problems of the society are not created by the courts,Â therefore, courts cannot be accused or solely blamed for the delay in dispensation of justice.
The courts being creation of statutes derive their existence, powers and operations from the provisions of these statutes and the constitution of Nigeria.
Courts are many times enjoined to embrace positive and progressive judicial activism. In so doing, case flow management properly implemented will greatly resolve the attended delay in justice delivery.
The constitution has provided for a person who won an election after a court has annulled an earlier election, particularly in the cases of the Governor or President, that his four years tenure starts from the day he is sworn in. But in a situation where somebody wins the governorship election after his first election had been annulled and maybe he had spent two or more years, until the election dispute was resolved all through to appeal. Is the person supposed to enjoy a fresh four years, if he wins the re-run?
It is a Supreme Court decision that interpreted the tenure as starting from the date of oath taking in the Peter Obi case. It follows from common sense that your tenure starts from the date of oath taking and swearing in as Governor or President. This should not be confused with the National Assembly or State Houses of Assembly, whose lifespan is based on the date a proclamation is done bringing the House into life for a four year tenure. The difference is that the four year tenure is personal to Governor and Presidential whilst same belongs to the House as a body and not the individual members.
My take on the matter is that fresh four year tenure cannot inure to the person but a completion of what he had earlier enjoyed or used.
The Constitution has prescribed a four year tenure and it will be against the spirit and intendment to hold otherwise. One or two cases have been filed in court to get an interpretation,Â hopefully we will get that very soon.
Some Nigerians have argued that the zoning adopted by some political parties is unconstitutional. Do you agree?
The issue of Zoning to me is like the Federal character provision in the Constitution. Zoning is done to give everybody a sense of belonging. When it is understood in this wise, the heated debate will not arise or will abate.
When a group of persons decide to form an Association and make rules that are accepted by its members,Â then such members are not stopped from resiling from such rules. Membership of Associations and political parties are voluntary and you either accept the rules and stay or convince members to jettison the rules but not to denigrate and deny its existence. The matter to me is not whether zoning is Constitutional or not but what the party as a group of persons want. If they decide to adopt a zoning formula or not,Â the party is still right.
There is no conflict against Constitutional provision that has arisen or gone to court for interpretation. Like I said earlier, what is the purport of the Federal character provision in the Constitution? We agreed that if you take one person from State A, same goes for State B and there was no provision that this be done on merit.
All appointments or offices occupied all through this democratic period from 1999 were on the basis of zoning. So the issue of Constitutionality does not arise. Therefore, my position is that it is completely in the hand of the parties to decide to how and when to apply zoning or when to discard it.
The appointment of INEC chair has been subjected of a lot of arguments. While some want the appointment to be done outside the Presidency, others feel it should remain with the Presidency. What is your position on this?
Who appoints the INEC Chairman will not determine whether the commissionâ€™s boss will beÂ good or bad. The question is who is the person to be appointed, the resume of the person? What are the laws guiding his actions? How is he funded? How is the enabling environment? Does he have the wherewithal to succeed? Who are the other persons appointed as National Commissioners, Resident Electoral Commissioners, and electoral officers?
The full complement of staff and their character. It is when we have determined these and satisfied ourselves of their good quality and sound moral uprightness, we will be in a position to say that we are getting it right. The appointing authority will not make a good chairman or produce a good chairman. The President is a fit and proper person to appoint a chairman but he has to be properly guided to appoint an appropriate person. The INE Chairman basically relies on report from Resident electoral Commissioners during the conduct of elections. He cannot be on ground in the 36 states of the Federation and Abuja. He can easily be misled by subordinates report. The most important thing, therefore, is the character of the person to be appointed with appropriate enabling environment to deliver positively.
What in your view should be the major challenges facing a INEC chair?
Nigeria and Nigerians deserve the best. An INEC Chairman so appointed must go back to history and find out why subsequent elections are getting worse than its predecessors. Attitude is so germane that an INEC Chairman must work to change the mind set of our people by not only being transparent but must be seen to be so. Conscience, an INEC chairman must be guided by good conscience in line with the dictates of his office and extant law. He must be just and do justice to all manner of people, the candidates, the electorate and the country.Â He must be fully aware of his brief and carry it on his finger tip. He must be God fearing.
How has the job of Secretary General of the NBA been? What has been the challenges?
It has been worth the trouble. It is a thing of honour and privilege to be called and elected by your peers or professional colleagues of over 70,000 memberships to serve the Association. The challenges have been onerous but the quality membership we have and continue to have, has made the job easy. Taking into consideration that one is administering an Association of learned and honourable members, much is expected of me and it is the membership that will determine whether I have done well or not. I cannot assess myself as it will amount to self glorification.
The challenges amongst others have to do with capacity building for members, increased disciplinary cases and contributing to the economic growth of the country. We have been contributing to all facets of the national development in tangible terms. The most important thing to me is to account for my stewardship after two years in office and at appropriate time and forum come August 2010 that will be done.