By Prof. Mike A. A. Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt.
INTRODUCTION
I grew up in the village in the sixties – my then rustic but very beautiful village of Iviukwe, near Agenebode, Edo State. With forests, game and nature as our only inseparable partners, I sat down and listened to my unread, but very intelligent and wise parents; and the greying elders, as they piloted the affairs of our community with commendable efficiency and proficiency. They used sundry endearing proverbs and parables to unknot difficult puzzles. Proverbs were always the palm oil with which words were eaten, as Chinua Achebe most admirably put it in his epic, “Things Fall Apart”).
So, permit me today to employ some proverbs and parables in this discourse, to express myself on a very sore national issue that has caused much ruckus and brouhaha – Interim Government (IG).
Now the questions: Et tu Interim Government? Quo vadis Interim Government? IG has become the tsetse fly that delicately perches on one’s scrotum. It must skillfully be killed, lest one ends up breaking his own scrotum. The reason to be wary about IG is simple: when a millipede crawls out of its hole, you may never tell if it will return as a millipede or as a snake. I have therefore decided to discuss this vexed issue today because an elder does not sit idly by and watch a goat deliver on its tether. I owe this duty to Nigerians.
INTERIM GOVERNMENT OR INTERIM NONSENSE?
In the latest manifestation of our seemingly endless fascination with things that are apparently bizarre and absurd, Nigerians have almost, overnight, become animated, besotted and infatuated with the fanciful idea of an IG. Afterall, when the moon shines at night, even the lame becomes hungry for a walk. They see it as a panacea and successor to the incumbent colourless and uneventful administration of President Muhammadu Buhari. That suggestion, first patriotically mooted last year by no less a personage than the iconic legal sage, Aare Afe Babalola, SAN, had recently gained traction. Many Nigerians did not then grasp his deep jurisprudential thoughts and genuine concerns about the calamitous destination Nigeria was headed. He saw it as a journey to no destination. I had shared his opinion. (See https: //www. Youtube .com/ watch?v = wmw9OuXxAM0).
THE YUSUF DATTI BABA-AHMED INTERVIEW AS A CATALYST
However, arguably the greatest catalyst for thrusting the debate into the front-burner of current national discourse was the interview granted to Channels Television by the running-mate to Peter Obi, the Labour Party presidential candidate in the last presidential election, Senator Yusuf Datti Baba-Ahmed. In the interview, he seemed to raise the spectre of the presumed winner of the election, Asiwaju Bola Ahmed Tinubu, not being sworn in or inaugurated on the 29th day of May, 2023, as constitutionally mandated by section 140 of the 1999 Constitution, upon Buhari completing his second term of 4 years. This suggestion generated a storm of controversy particularly among the Tinubu handlers who quickly called for the sanction of Channels TV that aired the interview. As expected, they were seamlessly obliged. Channels TV was fined #5m by NBC. This is Nigeria. I can almost always predict events including the questions and answers. Is this not a country where leaders force the led to first show them the limbs of a snake before the led can enjoy the dividends of democracy?
The brick-bats have since then continued unabated, with the proponents of the “No-Inauguration” agitation seemingly coalescing around the mantra of an ‘Interim Government’, to which President Buhari will hand over as a provisional or stop-gap measure. The Buhari government demurs. It is this IG which will presumably organize yet another Presidential (or, indeed general) election that will ultimately produce a ‘permanent government’. Nigerians have so experienced many oddities that they now appear unshockable. After all, when a sparrow gets beaten by a raging storm too many times, a mere drizzle no longer frightens it. But our leaders must realise that when the cripple dances in the village square in the presence of agile youths, the elders become ashamed of themselves. Have we lost our individual and collective sense of shame?
To probably pull out a burning palm kernel from the blazing furnace of fire, Aare Babalola stepped in, and propounded his thesis in April, 2022. It was based on the sound premise then that without the such intervention of an IG, the just concluded elections (which were then imminent) will produce, in his words, ‘recycled leaders.’ His proposal was that the last general elections ought not to have been held at all. Rather, he suggested that they should have been suspended, while an IG should first be put in office for six months, which will then develop “a new-look people’s Constitution.” That Constitution, according to the sage, “should provide for part-time legislators and a non-executive President.” In terms of its composition, he suggested, most attractively, that members of the IG should be selected from previous Presidents and Vice-Presidents, Ministers and Governors, as well as members of professional associations. (See 2023: Afe Babalola Proposes Interim Government, Says Nigeria Needs New Constitution: https://thecable.ng;published). The Aare’s worries have since been vindicated afterall by the farce and national embarrassment which the last discredited presidential election symbolises. Has this great educationist and legal prodigy not been vindicated by subsequent events? I think so. Or, do you not?
ARE INTERIM GOVERNMENTS COUPS IN DISGUISE?
Interim Governments, some have argued, suffer from a serious fundamental defect in the sense that they are wholly unconstitutional and tantamount, in effect, to a coup d’etat. Proponents of this school of thought liken an interim government to the load the hunch-back man must carry on his back, whether he lies facing down, or sleeps facing up. After all, he who brings a maggot-infested piece of firewood into his home should not complain of visitation by a colony of lizards.
Some questions naturally agitate the mind here, on the question of an interim government in Nigeria:
Was the idea a mere mooted plan, or was the DSS merely flying a kite so as to test the waters and the mood of the Nation?
Why should Nigeria’s elite Secret Service cause such national hoopla and frightening alarm without quietly arresting such proponents and charging them to court, if there really were any?
Datti Baba-Ahmed’s televised statement that Ahmed Tinubu should not be sworn in 29th May, 2023, was a mere advocacy that did not in any way infract sections 37, 50 and 51 of the Criminal Code, CAP C38, LFN, 2004; nor amount to an attempted coup. In 2015, Vice President, Yemi Osinbajo outrightly called for a “parallel government” if his APC (then in opposition), were denied victory. (See https://youtu.be/NgX_SngwBvY, interview dated January 4, 2015; and https://youtu.be/9oar9H6n1_Q, 2014 interview in Washington DC, USA). APC, through its then Chairman, Chief John Odigie-Oyegun, had also threatened to set up a parallel government (see https://thenationonlineng.net/apc-vows-to-set-up-parallel-govt-if-2015-poll-is-rigged/). Rotimi Amaechi, a chieftain of the APC, followed suit in threatening to form a parallel government (see https://www.thecable.ng/rewind-apc-threatened-to-form-parallel-government-if-2015-presidential-poll-was-rigged).
The very Minister of Information, Mr. Lai Mohammed, who held press conferences in the US, urging the US to sanction Peter Obi and Datti Baba-Ahmed for alleged treasonable felony did not only threaten Nigeria in 2015, but actually vowed that the APC would form a parallel government (see https://www.premiumtimesng.com/news/headlines/171627-apc-vows-form-parallel-government-2015-elections-rigged .html ?tztc=1) if they were rigged out of the 2015 elections. All these threats were made at a time when elections had not even taken place. Yet, the heavens did not fall. No one called for their arrests and prosecution. President Goodluck Ebele Jonathan who believed his “second term ambition was not worth the blood of any Nigerian”, simply smiled and walked away in the face of opposition stringently threatening his legitimate government. Yet, these party chieftains are now threatening fire and brimstone for such mere suggestions even when they are aware of the historic electoral malfeasance that took place.
By the way, did the DSS need to announce a coup publicly without arresting the alleged coup plotters? Aside from apparently flying a kite and testing the waters, did the DSS need to publicly pledge its loyalty to a president-elect that has not yet been sworn in, and whose election is still being hotly challenged by his two major co-contestants? Was the whole scenario merely simulated as an artifice and design to give Tinubu an upper hand, and thus hint to the petitioners and the Presidential Elections Tribunal not to waste their time in litigating their petition?
What will be the fate of the winners at the various levels of the last elections where an Interim government to be set up? Are they expected to simply accept their fate and wring their hands in despair on the altar of hopelessness and helplessness?
How exactly will such an Interim government come into being or function? Will it simply materialize out of thin air? Does it require a legal instrument to birth it? Who will author that legal instrument? NASS? President? In what capacity and on what basis?
Is the idea of an Interim Government even known to, or acceptable within the confines of the 1999 Constitution? Is it envisaged or provided for therein, whether specifically or by necessary implication?
This last question neatly dovetails into the most fundamental question of all – and the greatest obstacle to the erection of such contraption- that is, the provisions of section 1(2) of the 1999 Constitution which clearly outlaw the unconstitutional takeover of government in any part of Nigeria in the following words: “The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution”.
The implication of this provision is obvious: without a constitutional amendment in accordance with section 9(1)&(2) of the 1999 Constitution, the whole idea of an interim government is itself legally a non sequitur.
That process of amending the Constitution is quite cumbersome, tedious and time-consuming, as it requires the buy – in of at least 2/3 majority of the members of the National Assembly as well as a resolution passed by at least 24 (or 2/3) of the 36 State Houses of Assembly. If experience is anything to go by, it will be simply impracticable if its main objective is to create the legal framework for establishing an Interim government. Will those who believe they have won the last election – even if illegally and by brute force – not certainly resist such an amendment? I believe so. Or, do you not?
This leaves the option of a military take-over – GOD FORBID! It is for this reason – and this reason alone -that patriots and lovers of democracy have raised their voices against the suggestion. I hereby humbly add mine. Yes, our experience in democracy since its return 24 years ago has been anything but stellar. I was in the trenches for years to drive the military back to their barracks – CLO, UDD, JACON, etc. I experienced its ugliest side in perspectives too horrific to narrate here. I readily concede that our flawed electoral process, notwithstanding successive legislative interventions in virtually every electoral cycle – has forced the hedgehog out of its burrow. After all, a frog does not run in the daytime for anything. It is either after something or something is after it.
The political class has repeatedly failed us. It has refused to get its acts together, notwithstanding that it would be the single biggest loser were democracy to be truncated yet again. However, I firmly believe none of these challenges and shortcomings is enough reason, in my humble opinion, to abandon the Nigerian contraption project, which at any rate, has forever been a work-in-progress.
Any suggestion that the solution to the glaringly evident flaws in the last bastardised “elections” (which are legion and nauseating), is an unconstitutional structure called an ‘Interim government’, would not only subvert the presumed will of the people, but would also replace an admittedly repulsive and compromised system with a raging amoebic monster, so grotesque that it’s precise form, shape and structure are unknown. Such an idea – if it ever sees the light of day – will, in all likelihood, not only make a bad situation infinitely worse; it might end up consuming all of us. It may open a Pandora’s Box, whose contents are presently unimaginable. It is like opening a whitened sepulchre. Know it now that the fowl does sweat, but it is its feathers that prevent us from seeing its sweat. Having an interim government to me, is simply akin to a man who pours palm wine in the ground in the name of preserving it, but ends up getting the spirits drunk.
IG AND THE NIGERIAN EXPERIENCE
To put it bluntly, the idea of an Interim government (even if it was historically expedient 30 years ago during the military dictatorship of General Ibrahim Babangida), is simply unworkable under the present political dispensation. The situations are quite dissimilar. It is when the termite decides to fly like a bird that it enters into trouble.
This is because the circumstances in which the Ernest Shonekan interim government was installed in 1993 was the June 12, 1993 annulment of the Presidential elections won clearly by Moshood Kashimawo Olawale Abiola. The annulment was executed by the Babangida military junta. Such circumstances do not presently exist- unless the proponents of the ING are calling for the replication of the same scenario. Once again, God forbid! At any rate, that IG only lasted for barely 90 days, before it was promptly declared illegal by a Lagos High Court on 10th of November, 1993.
According to late Hon. Justice Dalapo Akinsanya, the courageous Judge who declared the Shonekan ING illegal, the erstwhile military ruler, General Babangida, had no legitimate power to sign a Decree post-August 26, 1993, after his exit from power. She held that “the Decree by which the Interim National Government was established was void and of no effect”. The suit had been filed by the acclaimed winner of June 12, 1993, Presidential election Chief M.K.O Abiola, who was not only prevented from governing Nigeria, but was also killed in hazy circumstances in Aso Villa. (See Ernest Shonekan and Interim National Governance in Nigeria; Oladiti Abiodun Kazeem https://www.slideshare.net.published on October, 03, 2014 < Accessed on 2nd April, 2023>). See the case of Madzimbamuto v. Lardner-Burke (1969) 1 AC 645.
The abhorrence of coup d’etat in Africa has since been formalised. On Monday, the 25th day of April, 2022, the representatives of the African Union (AU) Member States; members of the Peace and Security Council (PSC) of the AU; AU Organs/ institutions and the Regional Economic Communities and Regional Mechanisms for Conflict Prevention, Management, and Resolution (RECs/RMs); as well as the representatives of African Civil Society Organisations (CSOs); academic, professional bodies; youth and women groups; and other stakeholders, strongly condemned all forms of unconstitutional change of government in Africa, coup perpetrators and manipulation of democratic processes to effect constitutional amendments and urged all interested parties to address political concerns through the available national legal mechanisms to find solutions in a constructive, peaceful and constitutionally accepted manner.
To the extent that the circumstances in which interim governments are viable options, such as the India experience in the build-up to her independence in 1948) do not exist in Nigeria, to that extent must we remind ourselves of the dangers and bitter lessons of history in our previous unpalatable experience with that idea. If an unelected military junta could not sustain that Shonekan experiment, it is hard to see how a civilian government, which has just concluded a most shambolic general election can accomplish it. This government will never agree to hoist an interim government.
Doing so will be self-immolatory. It will be tantamount to the story of a beetle – whether it rolls its dung forward or backward – it ends up rolling it into its burrow. An interim government, though called a government, is never a legitimate government. Surely, the alligator is not a crocodile, even though they look alike. The alligator is a mere infantry officer, while the crocodile is a Naval Admiral. It is only the tortoise that knows how best to carry its hard shell.
WHAT IS AN INTERIM GOVERNMENT?
Let us now explore the world of IGs to show us why they are detestable. It is important at this juncture, to define exactly what an IG means. According to the Institute for Integrated Transitions (See htpps://ifit-transitions-9rg; Interim Governments: Lessons and Guidelines, November, 2020<Accessed on 2/4/23), “an Interim government is a formally constituted government holding an extra-ordinary mandate to conduct governmental affairs for an extraordinary term lasting until the election of a new government for an ordinary term with an ordinary mandate.” The Institute adds that this definition excludes the following:
i Unelected governments established for an interim period without the promise of ordinary elections within a reasonable timeframe; and
ii Elected governments that remain provisionally in place as part of the ordinary process and rules for the transfer of power or the temporary filling of a conventional constitutional vacuum.
Also, Wikipedia.org, regarded an IG as “a provisional government, also called an interim government, an emergency government, or a transitional government. It is an emergency governmental authority set up to manage a political transition generally in the cases of a newly formed state or following the collapse of the previous governing administration. Provisional governments are generally appointed, and frequently arise, either during or after civil or foreign wars. Provisional governments maintain power until a new government can be appointed by a regular political process, which is generally an election. They may be involved with defining the legal structure of subsequent regimes, guidelines related to human rights and political freedoms, the structure of the economy, government institutions, and international alignment.” Provisional government (See Wikipedia; https: //en.wikipedia .org/wiki/ Provisional _ government).
Again, Simplylaw.com in one of its publications on March 30, 2023, had this to give as the meaning of interim government; “Therefore, an interim government is an emergency governmental authority set up to manage a political transition, sometimes in the case of a newly formed country or following the collapse of a previous administration. It can be an unelected government established for an interim period or an elected government that remains provisionally in place pending the successful conduct of an election. This can be at the state or federal level.” (See Interim Government; What you need to know – Simply Law; https://simplylaw.com.ng/interim-government-what-you-need-to-know/).
We can therefore comfortably surmise that an interim government can only result or manifest in a situation where the norm, convention or legally institutionalized system and/or process fails. Interim governments from the definitions above and from the instances that will be analyzed in this intervention, will and should only be in contemplation where there is an impossibility, or at worst, a near impossibility to continue the norm or the legally provided mode for a change of government in a state. The interim government should just be a mechanism to hold the state intact pending the return of a legitimate government.
Viewed from this perspective, it will mean that an interim government should not be in contemplation where the legitimate mode for a change of government is still in process and has not failed or been exhausted; and where there is no situation or state of emergency. This will therefore suggest that any calls or clamours for an interim government before the occurrence of any of the following conditions listed below, will have no justification, or be ripe. Such calls may therefore be interpreted to mean a motive to sabotage the lawful and peaceful existence of the state. It may amount to a home rat venturing into the forest to wrestle with a bush rat.
Interim governments must therefore be seen as a mere contingency plan, designed to normalize a bad situation.
FACTORS THAT MAY NECESSITATE INTERIM GOVERNMENTS.
Interim governments do not just spring forth from the blues in normal circumstances. No. The factors and causes would have been there for long – even if dormant and latent. But it is only the ant that hears the whispers of the sand; just as it is only the worm that knows what is buried in the earth. Vigilant Nigerians had seen these signs long ago. Aare Babalola is one of them. I am one of them. My daily write-ups and frequent television appearances wholly attest to this.
The factors which foster the emergence of interim governments include regime collapse, negotiated agreement, special election or international intervention. They may arise at a national or sub-national level; and can have a myriad of compositions: national, international or mixed; one-party or power-sharing, civilian, military or hybrid. Their mandates range from providing or restoring basic state services to special tasks such as the preparation of a new Constitution or the introduction of economic reforms. It is in the preparation of a new autochthonous and People-driven Constitution that Babalola’s dissertation is situate.
Examples of such circumstances, as identified by the Institute for Integrated Transitions include an existing regime dealing with crises – such as severe economic problems, a fracture within the ruling elite, or an invigorated opposition which may transform itself into an Interim government to stave off its demise or provide more political space to work towards longer-term recovery or resolution (e.g Spain 1975-1976; Indonesia 1998-1998). Additionally, an international intervention may produce an Interim International Government as a practical means to restart governance after war or dictatorship or a stalled political process (e.g UN Transitional Administration in East Timor 1999-2002). Furthermore, an existing regime and the opposition may reach a peace deal or political settlement, establishing an Interim Government for a specified period (e.g El Salvador 1992-1994; and Nepal 2006-2008).
TYPES OF INTERIM GOVERNMENTS
There is the type of Interim Government where an organized power or force overthrows a sitting government and takes over the leadership of the state. This is different from a coup d’etat strictu sensu, because in this case, the regime taking over is only doing so to manage power temporarily, promising to hand over power, properly and as the law of the land recognizes. Wikipedia.org referred to this kind of interim government as a “revolutionary provisional government”. An instance of such interim government would be the case in Chad where when the Head of State died, his son took over the government, as against the provisions of the law of the land where the power to lead the state was supposed to devolve on the speaker of the National Assembly. However, Mahamat Idriss Deby in a bid to take over power had to, through the Army, dissolve the government and the National Assembly to ensure that the speaker did not become the Head of State. He however promised to hand over power according to provisions of the law after 18 months, thus making his government an interim/provisional government.
There is the second type of interim government, where there is set up, a new regime of leadership. However, the previous regime still retains the true power. This was the case with Nigeria when General Ibrahim Badamosi Babangida, said that he will “step aside”, not even resign. He did appoint an Interim National Government to usher in a proper government in accordance with the Constitution of Nigeria. General Babangida however retained the Secretary of his government to be the Secretary of the Interim government and the actions of the Interim Government were generally seen to be largely dependent on and not against the interest of General Babangida. Wikipedia.org named this type of Interim government, “Incumbent Provisional Government”.
There is the third type of interim government, where obedience and legitimacy in the state are shared between the incumbent interim regime and a regime trying to take over power. This is the case in Syria where the Interim Government is sharing power with external forces from Saudi Arabia, Iran, Iraq, Turkey and Qatar. Wikipedia.org referred to this type of Interim government as “Power Sharing Provisional Government”.
Finally, there is the type of Interim government where the power belongs to and is solely managed by an international body, the international community or an external state. Such was the case with the United States in 1776 during the American Revolutionary War when the Continental Congress, a convention of delegates from 13 British colonies on the east coast of North America served as its interim government until it was replaced in 1789 by the United States Congress. (See https: //en. wikipedia. org/ wiki/ Provisional _ government). Wikipedia.org named this type of interim government an “International Provisional Government”.
HOW WELL HAS INTERIM GOVERNMENTS WORKED IN OTHER CLIMATES?
As at date, South Sudan, Libya, Sudan, Burkina Faso, and Chad in Africa; Afghanistan, Myanmar, Syria, and Yemen in Asia; and Belarus in Europe, are the countries currently under an interim government regime.
Taking the samples of Afghanistan, Chad and Syria, let us analyse how interim governments have performed.
AFGHANISTAN
Matthew Saul in an article, “International Law and the Legitimacy of Interim Governments”, (see page 14; International Law and the Legitimacy of Interim Governments by Matthew Saul, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2715703) – pointed out the issues with the interim government of Afghanistan. He stated thus, “…certainly, the lack of security in Afghanistan has been a major hindrance in the development of a productive public sphere and the government has been keen to justify some of its constraining activity on the security situation.
Consider, for instance, the decree that all news agencies ‘refrain from covering incidents of “terrorist activities or movements” between 6 a.m. and 8 p.m. on election day,’ a ban enforced by National Directorate of Security (NDS) officials. … This suggests that it might have been a measure that has been motivated by the government trying to sustain its own authority, by reducing knowledge of events that bring into question the credibility of the election process.”
Matthew makes the very disturbing insinuation that interim governments are in an unending struggle to assert and justify their legitimacy. Yes, indeed. Afterall, the fall of a dried leaf is a warning to the green one.
CHAD
As published by Al Jazeera on 20th April, 2021. (See https://www.aljazeera.com/news/2021/4/20/chads-military-announces-new-interim-government-after-deby-death); and on 13th October, 2022; and (https: //www. africanews. Com /2022 /10/13/chad-new-interim prime-minister-vows-freedoms rights/), in Chad, even as it is today, the government which came into force in the guise of an interim regime to hand over to a Republican government after 18 months, counting from April 2021, is still in force till date. Now the question is, who now has the right, authority, and requisite power at this material time to bring this government to book? Should Chadians not regret ever having this interim regime in the first place? Which rat will now bell the cat? That is the question.
SYRIA
Middleeasteye.net.(Seehttps://www.middleeasteye.net/features/syria-interim-government-waiting) has painted a gloomy picture of the state of Syria under an interim government; just as has Al-monitor.com, they both show a country in serious crisis.
Though the situation in Syria (being a warring country and one with different power blocks exercising real power across divided parts of the country), is to be expected, it is still the case that its Interim Government has not only suffered major opposition that bring to jeopardy its control of the state but is also in search of its own legitimacy – the very foundation of a government. A cockroach has never been adjudged innocent in the presence of fowls.
CONCLUSION
The above scenarios have shown that IG is no longer in vogue. But, a final warning for those “politricians” messing up our hard-earned democracy: they must now move swiftly, deliberately, to save this pseudo democracy we are operating and turn it into full-blown democracy. This is because, if a snake chooses to crawl sluggishly like a snail, it will only succeed in making itself food for the hawk.
It will however be unrealistic in the present circumstances to expect “politricians” (the greatest beneficiaries of the last farcical polls) to commit collective class suicide by acquiescing to that idea. The IG idea will garner little or no traction among this most critical base of those who will lose out. It is not only the political class that will lose out but also the electorate. As the ENDSARS riots of 2020 clearly showed, Nigeria’s youths have become increasingly restive, enlightened, and audacious in the fight for their rights. Their righteous indignation is palpable. This once-upon-a-time supposed structureless and amorphous segment of society has become the rejected stone that has ironically formed the cornerstone of our democracy.
The days of taking the youths for granted by corrupt and unpopular governments are clearly over. An IG that they perceive as antithetical to their interests and aspirations might be the needed signal to spark off another round of mass protests, in a way and manner that may dovetail into ponderous chaos and anarchy. Who knows where that might lead us to? The way forward is to overhaul our abused electoral jurisprudence and change the warped mindset of our desperate “politricians”. The stubborn fly that refuses to hear the voice of its mother usually accompanies the casket into the grave.
The lessons are quite clear to us all. Our elders tell us that if you tell a man a proverb and proceed to interpret it to him, then the dowry paid on his mother’s head becomes a waste. A word is enough for the wise. A stitch in time saves nine.
Source:TNL
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