Law & Human Rights

December 3, 2015

Only court can resolve the political crisis in Kogi – Alegeh, NBA President

Only court can resolve the political crisis in Kogi – Alegeh, NBA President

Alegeh, SAN

Mr Augustine Alegeh, SAN, President of the Nigerian Bar Association, NBA,  in this interview, spoke on many national issues, including the Kogi State guber poll situation, human rights situation in the country and the position of the bar on justice delivery system in Nigeria, as well as the inability of some state governments to pay workers salaries. Excerpts:

By Abdulwahab Abdulah

VIEWS are divided on the political crisis created by the death of the All Progressives Congress, APC guber candidate in Kogi State election, Abubakar Audu. What is your position on the issue?

Alegeh, SAN

Alegeh, SAN

There is provision for what happens if someone dies before voting commences. In which case, the election can be countermanded and scheduled for another date and the party is allowed to produce another candidate.

There is also provision for what happens after the election or voting, before swearing in. Then you have what is called vested rights before the election result is declared.

You have a candidate and a running mate. It is a whole world of difference after that. After the results are declared, you have vested rights because you then have a governor-elect and a deputy governor-elect. If you look at the provisions, when there is a deputy and no governor-elect, he takes over.

Interpretationof the law

When you do not a deputy governorship candidate, the party is allowed to bring a fresh candidate, that is before voting starts. But there is no determination of what happens when voting starts. I have no doubt in my mind that the matter will end up in court for determination. Definitely, there will be lawyers for both parties, however the court will decide one way or the other. In a matter that you are not a party, it’s a big issue.

If you are interpreting the law, we can go ahead to say, this is what the law provides and stand by that provisions of the law. This is what judicial authorities have said and we feel we should respect judicial precedence. But in this case, there is neither statutory provision nor judicial precedence. So, we cannot have an opinion.

All we can say is that we have identified the problem and there is a lacuna in the law and going forward, Independent National Electoral Commission, INEC needs to make a decision. So, if the parties accept that decision, they can go by it. If not, they can go to court. INEC is an umpire and not a party in the election. It cannot go to court. Even, the Attorney-General of the Federation is also not a party in the election, so only the parties can go to court.

Some people have called for the intervention of the Attorney General of the Federation by approaching the Supreme Court to seek an interpretation of the laws as it relates to the Kogi matter. What is your take on this?

What would be the locus of the AGF in the matter? It is an election matter with vested parties.

He  is not a party at the election. What would be his cause of action? He cannot go to the Supreme Court to determine an academic issues. For instance, I can go to Supreme Court if I was a party to say that INEC decision to allow the running mate to continue with the supplementary election is unlawful. I can go to court to say INEC decision to allow APC to field a new candidate is unlawful.

In those cases, I have a vested interest and a right.  It is only when they go to court, that the court in its wisdom, can invite the AGF, Alhaji Abubakar Malami, SAN, as an amicus curae, to offer suggestions.

In essence, you are saying whichever way this matter goes, it will find its way to the Supreme Court?

That is why I don’t have an opinion. If I have an opinion, I will be taking an opinion against the stand of one of my members as the NBA president. If there is a constitutional provision, and we are interpreting that, I don’t care where you stand. I will say the constitution says this and it should be followed.

But now, there is no provision for me to anchor my position on. There is no decision that I take that everybody will be happy with, this is because it is a contest where there will be only one winner and that decision will be deemed as providing a winner. Let us not be academic about it, it will go to court. But the earlier we start the court process, the better.  I hope when  it gets to court, they will apply the fastest rules at the Supreme Court if it is so stated.

If they take the case from court to court, I am sure the Supreme Court can be able to determine it rapidly and quickly and based on the decision of the Supreme Court, they can then have a way out. When the court takes a decision, then we can say, this is the decision of the Supreme Court, let us all abide by it.

But there are those who believe that since the deputy contested along with late Audu, he should step in and conclude the process?

For me, it is a very simple way out of the problem. But let me play the devil’s advocate. If Audu contested alone, it would be a void ticket.


For the deputy governor to go alone without a running mate is not allowed. Each candidate must have a running mate. If you play the devil’s advocate, you will see that there is no perfect argument. There is no perfect situation. They can say okay, let the man name a running mate, the call for nomination has expired. There are layers of challenges and as the law did not provide for it, we all have to be careful.

There is no solution that is not good. That solution that you talked about is also good but somebody would tell you if Audu was the main candidate, why do you want to carry his vote into a supplementary election when he has died? Wada would tell you if I had contested against Faleke, he wouldn’t have scored this number of votes. The man from APGA would say it is because of Audu that he lost the poll.

One of the candidates has called for the  adoption of the doctrine of necessity. How do you see this?

The doctrine of necessity does not operate in vacuum. It operates in law.  We are all lawyers examining the various challenges, for any position you want to take, it must be in line with the position of the law. If you have a case where they said if you have fresh election, only the parties at the original election can partake. How do you fit that into the scenario when, like you said, one of the parties has died? I don’t have an opinion on that as I have said.

Again, in Nigeria context, it is the political parties that field the candidates that are voted for and not the candidate? How can this be resolved?

The origin of that concept is the Rotimi Amaechi’s case which has been uphelded in some other places as a precedence. It is a fact that we don’t have any governorship candidate, and that it is the party that provides the umbrella for the candidate. But you must also understand that the party alone cannot contest an election.

If the party fails also to present a candidate in an election, it will be a problem. So any way you want to look at it, there are several legal challenges and it is only those wise men at the Supreme Court that would be able to look at it with their experience, with their exposure and find a way out.

National Human Rights Commission, NHRC, inaugurated a committee last week by to review all anti-human rights laws. What areas would you want the committee to look at?

Firstly, I want to say that we must understand the functions of the NHRC. The NHRC is set up to protect human rights and ensure that all our laws provide an environment that respects human rights.


So when such a commission now causes a committee to look at human rights legislation, then you start asking what are it’s functions as a commission because that committee is being given a principal function of the commission. When any law is being proposed, we interact with the law, what are the components of the law, how does it apply in administration of justice.

Human Rights Commission should be looking at how such laws help in the observance of human rights at all levels. Are they saying that they have not been doing that? However, we must not take a fire brigade approach in our fight against human rights for the simple reason that even if this committee identifies all the laws in order to ensure adequate protection of human rights, what then happens?

You still need to go for the laws to be amended.  The Commission is doing a great job but I will appeal to them that they should be proactive. It is easier to ensure that those flaws don’t become laws than to wait till the end of the day and try and get the laws back to the lawmakers for amendment.

The NBA recently in Port Harcourt set up  a committee to look into human rights abuses in the North Eastern part of the country. How will the committee carry out its assignment given the high risk factor in the area?

We are not going there to investigate human rights abuses. The situation that has occurred there has been talked about by Amnesty International  and other rights groups, they include serious abuses, that our troops in trying to quell the Boko Haram insurgency, are committing human rights violations. Amnesty claimed to have investigated, Human Rights Commission claimed to have investigated.

Our duty is to sensitize the military.  We are only going to have a human rights workshop with the military, where the former Attorney General of the Federation and the former Minister of Defence will present a paper that will highlight what they need to do. There are rules of engagement in every war situation. So, we want it to be highlighted to our military. We want to have a collaborative effort with our military.

That sensitization is critical. If we all investigate and investigate and nobody has told them this is the minimum standard expected of you in a war situation, then we will be doing the same thing that Amnesty has done. We are going to set up NBA monitoring team.

It is one thing to tell them what to do, we are going to monitor to the best of our ability to be sure that they are observing the law. So our monitoring team will have telephone numbers that anybody in Maiduguri, Biu, Gombe, Bauchi and the whole area can call to lodge their complains.

As the president of the NBA, what agenda would you to set for the new Attorney General of the Federation?

Firstly, I want to commend the President for appointing not less than 10 of our members as ministers. Secondly, for our members, we have assured them of our support. We have also drawn their attention to the fact that they are ambassadors of the bar and that whatever they do while they are in office would have an impact on the bar positively or negatively.

So, in whatever they do, they should realise that they are not just doing it for themselves but for their families, for their constituencies and also for the entire bar. They should, at all times be above board. They should be performing ministers at all times and be the top 10 at all times. For the Attorney General of the Federation, Mallami, he is somebody who I know closely and he is passionate about the rule of law, democratic values and about our judiciary and how to improve on it.

So, when his name was announced, as the AGF,  we were not surprise. But the most important thing for us to do is to fix our legal system and one of the best ways is by taking certain legislative interventions. If by the grace of God, these interventions are taken by the new administration, they will make other things fall into place to give us good justice administration system.

There are complains by some state governments that they can no longer meet their salaries obligation to workers.  What is the way out?

As at the last count, 28 states cannot pay salaries. There has been a remarkable shortfall in federal income which has affected the states.


So, that is the main challenge. But how do we deal with it? There is no easy way out. We cannot on our own increase the prices of oil. The situation calls for lean government, it calls for government to take measures to look for alternative sources of revenue. We should draw attention to the fact that we should not depend on oil alone.

Look at the United Arab Emirates, despite the oil that they have, tourism is also a huge revenue earner for them. So every country should have more than a source of income. We are one of the few countries that still have one source of income. But another challenge we must look at is how to address it, but I want to highlight it, so that those who are well versed in economics and finance can address it.

When a state for example, receives N600 million every month but has a salary bill of N400 million or N450 million, the consequential and real effect of what is happening is how many civil servants do they have? May be they have 40,000. But what is the population of that state? May be two million.

You ask, why should 40,000 persons take 80 per cent of the total earning of a state from the federation account? That whole money is meant for the entire people of the state but it is being given to 40,000, less than 10 per cent of the population.

That is a major challenge that we have to look at.  I think this is wrong and it is time to find a solution to this because if you extrapolate as the growth continues, in a few years, all the states in the federation will no longer be able to pay salaries.


So you find out that for a country to have a budget where recurrent outstrips capital development, then we have a major problem. In a country of 150 million, the total civil service strength, let even say it is two million. Let us ask ourselves how much is being used to maintain the two million people, even 15 million? How can we not say we give them 10 per cent of our budget.

The remaining 90 per cent, we use to develop other areas, so that the remaining 90 per cent of the population will benefit and they will still enjoy from the 90 per cent resources. What is happening now is that they have taken about 98 per cent. But that is where our economists and financial experts have to come in. That is food for thought.

There are complains on the conflicting judgements of the Court of Appeal bothering on same issue. What is the Bar doing about it for the credibility of judicial system?

What we have done is to keep highlighting the issue. We don’t have disciplinary control over judges. We cannot say discipline a judge. But in on our part,  we have been trumpeting it and will keep trumpeting it that failure to follow judicial precedence is evidence of corruption.

If I cite an authority to you, I have a right to distinguish the authority and say you cannot follow that authority for this reason or that reason because the facts are different. At the Court of Appeal level, the challenge you find is that the Court of Appeal know how they do their own thing.