Democracy Rebirth by Bola Tinubu Part Two: The Resurgence of the Opposition

Both at the levels of fighting for electoral integrity and justice and that of ensuring true fiscal federalism, the opposition made the courts the first theatre of battle. In many cases, the response to the overbearing ways and outright constitutional violations of the Federal government fell upon the opposition states to initiate. The reason was that the majority of the states ere controlled by the PDP- and most governors were for reasons of party unity, or simply timidity, unwilling to oppose the President and the Federal government, even when their best interest would be served by opposition. The exception was the so called "resource control" cases, when oil producing states stood up against the Federal government.

The approach of the opposition in redressing many of these unacceptable policy positions, constitutional violations of the federal principles, and election rigging was quite varied. We believed then that in the absence of a significant voice in the parliament with coalitions of smaller opposition parties, the courts would be our only serious option for redress. Between 2001 and 2007, we mounted several legal challenges in the Supreme Court, the Lagos State usually being a plaintiff, where we asked the court to resolve a wide variety of issues.

Beginning in 2002 with the case of Attorney-General of the Federation v Attorney-General of Abia State and 36 Other States, Lagos State being the 24th defendant and counter claimant, the Supreme Court made a number of far-reaching pronouncements on fiscal federalism. It held inter alia that the 

(I) Funds in the federation account can only be distributed among the federal government,

States and Local governments. The provision for 'special funds' was held inconsistent with the Constitution.

(II) External debt could not be serviced from the Federation Account, each government,

federal, State Local government could not charge its debt to the federal account. It was therefore unlawful for the federal to deduct its debts from the federal account

(III) Funding of joint venture contracts and the Nigerian Petroleum Corporation (NNPC)

could not be charged on the federation account, as NNPC could not qualify as either the federal government, a state or local government.

(IV) States were entitled on the basis of derivation to a share of revenue derived from capital gains tax, incomes or profit of persons other than companies and stamp duties.

(V) Natural gas is a natural resource- and any revenue accruing from it qualifies for the

application of the principle of derivation in favour of any state from which it is derived.

In 2004, IN AITORNEY-GENERAL OF LAGOS STATE V AITORNEY-GENERAL OF THE FEDERATION we were again before the Supreme Court, this time, to challenge the President's order withholding funds allocated to Lagos State, for the benefit of its Local governments and for the reason that we had created local governments illegally.

The Supreme Court held that the President had no power or warrant to withhold funds meant for a State from the federation account. Regarding the question of whether the 37 new local governments created by the State's House of Assembly were illegal as contended by the federal government, the Supreme Court held that although the process of the creation of the local governments had not been completed, as the National Assembly had not amended the schedule containing the list of local governments to include the 37, the local governments were nevertheless validly created by the House of Assembly.

Time and time again our recourse to the courts won us, more constitutional victories than the National Assembly's majority was able to secure for itself by legislation. By and large, the battle for a truly federal state has been fought not in the chambers of the National Assembly but in the hallowed halls of the Supreme Court. Nigeria's National Assembly looks like an undemocratic institution, serving undemocratic ends.

Winning Back the States

As mentioned earlier, the PDP fraudulently commandeered victories in the states and assembly elections. Rather than resort to the streets in protest and encourage anarchy, the opposition resorted to the courts because of its respect for the rule of law and began the battle to regain the stolen mandates. Thus, the battle to regain the state, of which we were brazenly robbed in 2007 elections- namely, Edo, Oyo, Ogun, Ekiti and Ondo were fought in the courts. For the first time in our country, we used technology and forensic analysis to prove electoral fraud in many states.

The method of rigging widely employed by the PDP in those states was multiple thumb printing of ballot papers, often with the connivance of the police. These thumb-printed papers were then stuffed into ballot boxes at different polling units. This method had succeeded largely in previous elections, with the perpetrators confidently believing that they would not be detected.

However, we were determined not only to win back the states, through the judicial process but also to prove the extensive rigging perpetrated by the PDP. The ACN hired 52 British finger print experts led by late Bristol-based finger print expert, Adrian Forty. We also hired an additional 10 Israeli finger prints experts. In a massive finger prints identification operation spanning almost four months, over 1.5 million votes across the contested states were examiiled. In the end the experts identified incredible percentages of multiple thumb prints. In one locality­Ife- in Osun State, we detected over 80% of the ballots purportedly cast for PDP were thumb printed by a few persons. In Osun state, the biometrics was confirmed by simple arithmetic and common sense. In one unit Oduduwa Hall of the Obafemi Awolowo University, a total of 2,300 votes were returned. Two thousand of the votes were purportedly returned for PDP. The voting period recorded for that unit was between 8 am and 3 p.m. This is 420 minutes. When you divide 420 minutes by 2,300, you get an average of eleven seconds! So we were able to prove that an average voter, who should have spent at least 5 minutes from accreditation to voting spent only 11 seconds! Only multiple thumb printing can explain that. In the preparations for the 2011 elections, we knew what we were up against as the opposition: an electoral system designed for easy manipulation by the ruling party, electoral laws that were undemocratic and susceptible to abuse and manipulations by the ruling party, a hostile security environment, and a system in which so much state money had been pumped into the system to fight the opposition. We were fully aware that unless we made electoral integrity a make-or-break issue, the 2007 travesty would only be a dress-rehearsal for even greater impunity. We therefore initiated the "every vote must count campaign". Several civil society and professional groups kicked off the campaign at a lecture given in my honour on my birthday- March 29, 2008. Thereafter we established in collaboration with several civil society groups "the Coalition of Democrats for Electoral Reforms (CODER), to ensure the integrity of elections. As part of our struggle for free and fair elections, we supported and joined the mobilization by CODER to ensure the integrity of elections. We used CODER to demand for electoral reforms, we rallied Nigerians, especially politicians with progressive orientation to our side. Under my direction, CODER led the struggle for electoral reforms. Local and international civil society organizations and foreign governments also engaged with the government to ensure transparency and accountability in the electoral process. From this stage, the -one man-one vote mantra resonated across Nigeria.

As a result of the vigorous agitation by the opposition for fundamental electoral changes, the government inaugurated the Electoral Reform Co~mittee to bolster its image. Chaired by former Chief Justice of Nigeria, Muhammed Uwais, the committee did a good job and produced a comprehensive report detailing the faults in the electoral process and enumerating 83 procedural and substantive recommendations. Key recommendations dealt with ensuring the independence of the electoral commission and of creating an electoral process less vulnerable to manipulation. If implemented, the report would have constituted a radical transformation of the political landscape and place Nigeria on the right path to stable democracy.

As with most attempts to reform a stubborn and regressive system, our efforts succeeded in part and failed in part. Due to public agitation, the Electoral Commission Chairman who engineered the sordid 2007 election was replaced by a respected figure in whom civil society had confidence. We also were successful in calling for a new voter's register to replace the one the former Electoral Commission head had concocted.              These pressures opened the way for the change in the leadership of the Independent National Electoral Commission (INEC), which eventually was largely responsible for the relative transparency experienced during the last elections. It must be stressed, however, that the change in the leadership of INEC is insufficient for the total transformation of the electoral process in Nigeria.

First, the recalcitrant government failed to resolve the issue of the independence of the Electoral Commission. Second, government refused to alter the selection process giving a president unilateral power to appoint the Chairman and its commissioners. And third, government refused to provide the Electoral Commission an independent budget. This means the Commission remained susceptible to political influence because the National Assembly and President could control the Commission's purse strings for as long as they deemed appropriate.The few and cosmetic reforms made by the National Assembly were also delayed because neither the assembly nor the presidency really wanted genuine reform aimed at improving the electoral process. Their eleventh hour antics were mere shifty maneuvers to bolster their political positions for the approaching election. Instead of perfecting and insulating the electoral process and broader political environment from manipulation, they focused national discourse on trivial intra party matters.

To be continued