By Abdulwahab Abdulah

Chief Robert Clarke, SAN, in this interview spoke on the rate at which corruption is gaining ground in the country. On the conduct of governorship election in those state where their Governors were returned after rerun polls held in such states, he argued that INEC is not expected to conduct governorship election in the affected states arguing that such move is unconstitutional. He added that some of the lawyers who were in support of the INEC’s position have vested interest in the matter.
Excerpts:
What is your position on the controversies generated on Independent National Electoral Commission, INEC’s declaration that election must hold in some states of the federation where their Governors were re-elected through rerun poll?

My view is tied to the position of the 1999 constitution which says a Governor’s tenure shall begin from the day he was sworn in as a Governor. The constitution further stated that for you to be sworn in as a Governor, you must have won an election, following which you declare your assets then, you will be sworn in. What happens when INEC declares somebody a winner of an election and afterwards the electoral tribunal says the election is void, either partially or in whole, it means the election was incorrect, you have to go and do a re_run.

It indicated that the election on which you have been sworn in as Governor has been voided. That means as an individual, you have not won that election. And if you did not win an election in line with the constitution, you cannot become a Governor. So, if that election upon which you were supposedly sworn in is now voided, that period you sat as a Governor is not a tenure known to the constitution, but a tenure covered by the Electoral Act.

* Chief Clarke, SAN

So, if there is a new election and you have stepped down before and re-contested and won, then your tenure which is known to the constitution starts to operate. Since the constitution recognizes four years, that means your tenure starts from when you assumed the new office.

So, in Ekiti, Cross Rivers, Balyesa, Adamawa, etc, since the Governors have stepped down through election tribunal’s judgment, either partially or in whole election and they have resumed office freshly, therefore in my view, INEC is wrong in its position. Tenure starts from the day you were sworn in.
Now, can we compare the present situation with the position of the Supreme Court in the case of Governor Ladoja of Oyo state?

I and my colleagues handled Ladoja’s case. The issue canvassed was that there was a break in Ladoja’s tenure through illegal impeachment. The Supreme Court agreed with us that nobody can change a government in this country except in accordance with the provisions of the 1999 constitution. The Supreme Court claimed that the removal of Ladoja from office was unconstitutional and it described in very strong and condemnable adjectives. So, our own position was that if it agreed that he was unlawfully removed, then that period for which he was removed cannot form part of his tenure. The Supreme Court agreed with us but stated that they did not see any law to use and support our position. They totally accepted my position in their brilliant submission, but maintained that they cannot see any law to cover it. So, Ladoja’s case is quite different from these ones. In these cases, the elections of the Governors have been declared void by the election tribunal or the Court of Appeal.

If you study the newly amended electoral act, which necessitated the INEC position, asking the Governors to prepare for elections in their states, one will tend to support the commission’s position. What do you have to say on this?

There is no retrospective legislation in Nigeria. The new Electoral Act has made provisions to apply on the present election but you cannot apply the same law on the incident that has happened before the law came into being. Since the law is not retrospectively made, you cannot put it into effect. We Lawyers always say facts are very sacred. Before you apply any law, you must satisfy yourself of what are the facts there in. The fact is very clear that Mr. ‘A’ or ‘B’ becomes a Governor because he won an election.
The election, though not the first one, it was clear that he was sworn in based on the results of the fresh election. So, his tenure starts from when he took the oath of office.
Fifty years running, how do you access the political development of the nation, especially as it relates to law and legal practice?

Speaking on the political development and law process, for any nation in the world to develop, it must have a very strong legal system. So, this means that any nation that has no very strong legal system, that could guarantee due process and the rule of law, can never be developed. So Nigeria was so lucky that what we inherited from the British colonial masters has helped a lot. Based on this, Nigeria was able to have a very long and strong legal system, which has helped a lot in the socio-political development of the country. So, in the area of legal practice, we are not doing badly. However, we need to buckle up to meet the contemporary issues and ensure that the nation lives up to expectation.

Lawyers in the country have been doing their best in the political development of the nation. However, there is skepticism that lawyers are aiding politicians in creating clog in the wheel of political development of the nation. The problems in the country cannot be attributed to lawyers alone. I can also tell you that the problem is not in the system but in those who operate the system. The only way to salvage the system is for us to make it clear in the electoral act that all election petitions are decided before any candidate is sworn in. Because you find a governor who used dubious method to win election, he must have spent all his money to win by all means, he would want to recoup what he spent from public cover. He would get money to pay lawyers who would ensure that cases are not determined timely. Unfortunately, those that are supposed to change the law or the system are those who benefitted from the same rigging. They will not want to do it.

The problems we have been having are problems from those making the law or those who are supposed to implement the law, who are taking the advantage of the situation to favour themselves.

On political party system, I prefer that the country adopts two party system to move away from avalanche of rigging and politics of hate. Let me tell you something, in the 1993 elections declared by Nigerians as freest and fairest, there were only two political parties. Why? This is because all the so called enemies will have to come together in one political party or the other. So, I believe what can save Nigeria today is a two-political system. Then, there will be sanity in the polity, and the rigging will be reduced.

Can you say Nigerians are learning from the mistakes of the past?
What pains me most is that Nigeria grows in age but rather than learn from our past mistakes, we are causing more problems. There is nothing to show that we have learnt from our past mistakes. A nation that looks backward and realizes that it had made mistakes and corrects the errors is moving forward, but Nigeria is not that nation.

I made bold to say we are adding more to our mistakes. Any country in the world that does not have good railway system that does not have good electricity can never progress.
Today at 50, Nigeria hasn’t got good railway system, no electricity; therefore we have not made any progress as a nation. Average Nigerians are suffering; the only thing you see is development in Ikoyi and Victoria Island. Also, if you go to Abuja you see some development. However, if you go to Ile-Ife, Oyo, Potiskom, what is available in the last 30 years is what you see on ground, even some have degenerated. There is nothing to show, poverty is written on peoples’ faces. With the way things are going, we have to be prayerful, for a better change.