By Henry Ojelu
Mr Oyewole Gboyega, SAN, is the former Attorney-General and Commissioner of Justice, Ekiti State. In this interview, he spoke on many national issues including local government autonomy, death penalty, Land Use Act amongst others.
Does the law support moving Tribunal sitting out of jurisdiction?
In my view, the movement of an election tribunal to another jurisdiction or location is regular and proper upon due inauguration of the Tribunal by the appropriate authority. This is in line with the decision of the Supreme Court in Wike’s case, which has been followed in several other cases, where the governorship election tribunal was moved from Rivers State to Abuja citing security reasons. The law provides that each state of the federation shall have one or more election tribunals but the location/venue was not considered in the statute. The provision of Section 285 (2) 1999 Constitution leaves this issue open. It is a fact that election and election petitions are often contentious and heated, which often leads to break down of law and order, therefore, sitting of election tribunals out of jurisdiction for security reasons most especially for the safety of the Tribunal members and witnesses, is a valid ground provided it is approved by the tribunal. In most of the known cases, parties always agreed on the movement to safer and more conducive venues.
Some persons have advocated for reduction of political parties in the country. Do you support this call and how can it be achieved?
The powers of the INEC are basically statutory. They are derived from the constitution and other enabling laws. It is the fundamental right of citizens to form or belong to any political party of their choice in accordance with Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and further affirmed by the Supreme Court in INEC V. BALARABE MUSA. However, pursuant to Section 78 (7a) (i)(ii) Electoral Act, 2010 (as amended), the Independent National Electoral Commission, INEC, is empowered to de-register political parties on the grounds of breach of any of the requirements for registration and for failure to win presidential or governorship election or a seat in the National or State Assembly election. INEC, has been statutorily empowered to control and regulate the affairs of political parties under the enabling statute, and it is my view that such powers should be enforced to the letter in a bid to prevent a hopeless case of multiplicity of political parties without any meaningful contribution to the electioneering process as witnessed during the 2019 general elections.
Do you think that death sentence is still relevant in our justice system?
As against my personal opinion, the law remains the law. When I was Attorney- General of Ekiti State, I was invited by the Federal High Court as amicus curiae to express my opinion on the subject matter. It was Hon. Justice Ajakaye (retd) of the Federal High Court. I stated clearly that by virtue of my stand as a believer in deterrence than retributive justice, death sentence should be abolished from our laws. The extant provisions of the law that mandates death sentence for some category of offences has failed to yield any meaningful results. Imagine a case where a 20-year-old boy was charged to court for robbing with a knife without any visible harm or injury to the victim, but was sentenced to death when obviously he may not be conscious of his action as a result of his age and susceptibility to delinquency associated with his age-bracket. I was able to use my office as the Attorney-General in consultation with the Council of the State on prerogative of mercy to recommend committal of death sentence to life imprisonment for persons sentenced to death. Finally, we may have to resort to the amendment of the law as it stands now for us to change the position of things.
Some persons have called for the amendment of Land Use Act. Do you support that call?
I want to believe that the Land Use Act is proper, right and good for the country. It is widely believed that the Act complicates things, but personally, I am yet to see how it does. The Land Use Act makes the use and ownership of land very predictable and certain. If all the land is vested in the government, government can use part of it for public purposes and also enable individuals acquire lands through the issuance of Certificate of Occupancy. The problem is not with the law but application of the law by the public officers. If they can act strictly and honestly, I do not see any problem with the law. The act of revoking certificate of occupancy citing overriding public interest only to re-allocate such land to private persons/cronies or allies of the government, is a major impediment which I believe must be addressed as enunciated by the Supreme Court in Lawson v. Ogun State Government. The Land Use Act in ensuring that citizens are not unduly deprived of ownership of their land, also provides for payment of compensation after such revocation, but unfortunately, most state governments have deliberately failed to pay them. We must, however, note the implication of the Oil Minerals Act which is not an offshoot of the Land Use Act and other legislations that may be reviewed to empower land owners who have minerals embedded in them.
Do you subscribe to review of academic qualifications of members of legislature?
What legislators need is to have a knowledge of what the people require and not intelligence. A man may be educated but lacking the requisite knowledge of what his people wants or what their expectations from government are while another man may have no educational background but having lived within his immediate constituency, he can adequately make known the demands of his people and protect them where they may likely be infringed upon by any legislation or programme of government. Therefore, I advocate knowledge as a yardstick for public office as against educational qualification presently contained in the 1999 Constitution.
Do you support the call for limiting the term lawmakers can serve?
I do not support limiting the term lawmakers can serve/spend in the legislature. The important point to be considered is whether he/she has the affirmation of his people who continue to vote him into the legislative house. However, I support part-time membership of the legislature and I also believe that they should be entitled to sitting allowances only, thereby enabling them to also play their respective roles in nation-building. The legislature as presently constituted in Nigerian politics, starting from the councillors in the local government to the assembly members in the state houses of assembly and then the members of the National Assembly are grossly overpaid. I feel that the earning should be based on the hours they spent on their assignments on daily basis. This way, the violence and the do-or-die contest would reduce considerably.
What is your view on local government autonomy?
The Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1989 was the only constitution which expressly gave autonomy to the local government council as deduced from Article 5, Chapter VIII Part I, and Fourth Schedule Part I of the draft Constitution. The laudable provisions of the 1989 Constitution were unfortunately deleted/omitted from the 1999 Constitution, which made the local government subservient to the state government under the present Federal Accounts Allocation Committee, FAAC, arrangement. It is an established fact that the local government is the closest level of government to the people at the grassroots and its autonomy is essential in bringing the dividends of democracy/government to the doorsteps of the people.
Is it legal to withhold the certificate of returns?
The law is trite that a candidate who is declared winner in an election duly conducted by INEC is entitled to a certificate of returns duly issued by the INEC within seven days of declaring the result of the election.
The issuance of the certificate of returns is mandatory and does not give room to INEC to decide otherwise. It can, therefore, be deduced from the copious provision of Section 75 (1) of the Electoral Act, 2010 (as amended) that issuance of certificate of returns is subject to the declaration of a winner in the election by the INEC, and that the INEC may not have any power to withhold the certificate of returns of a candidate who has been declared winner in an election as the provision of Section 75(1) appears mandatory.
If the process is flawed, INEC is required to direct that fresh elections be conducted where elections were not held. Elections are held at polling stations, and subsequent collation remains only an arithmetic exercise. This matter may be subjudice hence, I do not want to say more, the courts will direct as appropriate.
As an associate of Chartered Institute of Arbitrators, how do you think arbitration can aid dispensation of justice?
I am personally of the view that parties should resort to arbitration or generally, alternative disputes mechanisms for obvious reasons which include the facts of the congestion of the regular courts that often results in the slow-down of the adjudication process. A further factor is acrimony. There is a popular saying that you cannot go to court and remain friends. This is obliterated in arbitration proceedings. Nigeria as a developing economy desires to attract investors. The terrain would be made less tedious, more predictable and friendly. This is what arbitration offers. Thankfully, the new Lagos Civil Procedure Rules 2019 favours this position where it clearly states in its overriding objectives that the court shall further the overriding objectives by actively managing cases which include mandating the parties to use an alternative dispute resolution, ADR mechanism, where the court considers it appropriate and facilitating the use of such procedure. See Order 2(1)(c).