Alleged Non-Qualification/Perjury: ‘Case Against Buhari Cannot Stand’ By JUSTICE R I AMAIZE

Alleged Non-Qualification/Perjury: ‘Case Against Buhari Cannot Stand’ By  Justice R I Amaize

In the matter of the allegations of non-qualification and perjury made against General Mohammadu Buhari, GCFR, presidential candidate of the All Progressives Congress in the 2015 general elections – A Legal Opinion

 

These past few weeks, the nation’s media, be they prints or electronics, have been awash and all spectrums of the public domain inundated with reports on the subject that forms the caption of this write-up. It has become expedient, if not out-rightly compelling, bearing in mind the crass misconception associated with most of the opinions so far expressed from all strata of our society, to attempt to situate the issues involved in their true legal perspectives. Most of these opinions are engendered, influenced and fueled, for the most part, by tribal, religious, political or unguarded sentimental considerations. To permit and encourage matters of purely legal considerations to be dimmed by social considerations, whose epithets I have referred to above, is worrisome, to say the least.

The allegations rolled out against Gen. Mohammadu Buhari, the candidate of the All Progressives Congress (APC) in the forthcoming Presidential election (hereinafter referred to simply as the candidate) are three in substance and are that:- contrary to the relevant provision in the Electoral Act, 2010, the candidate failed to observe the rule on concurrent submission of his completed application form and the documents in support of it to the Independent National Electoral Commission (hereinafter referred to by its acronym INEC) as implied by the relevant provision of the Act.

The candidate lied on oath when he deposed in an affidavit submitted to INEC that his documents or copies thereof were with the Secretary, Military Board which fact, it was further alleged, was denied by an Army spokesman subsequent to the making of the said affidavit; and the candidate does not possess the educational qualification set forth in the extant Constitution to vie for the nation’s number one position.

Alleged infraction of the Electoral Act, supra in the submission of form: This allegation, as espoused in the various media reports (prints and electronics alike), is premised on what his traducers called his failure to attach copies of his documents, educational and the likes, to the form/affidavit he submitted to INEC and that such omission ran foul of the relevant statute and therefore fatal to his candidacy. The law on the subject is Section 31 of the Electoral Act, supra and the relevant subsections are (2) and (3) which I proceed to, for the avoidance of any shadow of doubt, replicate hereunder as follows:

“(2) The list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the Federal High Court, High Court of a State or the FCT, indicating that he has fulfilled all the constitutional requirements for election into that office.”

“(3) The Commission (this refers to INEC) shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.”

In my opinion, the catching phrase in subsection (2), regard being had to the allegation made, is “the list or information submitted”. To remind ourselves, the allegation which is in two facets bothered on:- failure to attach copies of his documents to his completed application     form/affidavit. That is, there was no contemporaneous submission of the application form/documents, and lying on oath when he claimed copies of his documents were with the Secretary, Military Board.

It was therefore thought that given the scenario as above painted the candidate stands disqualified to run. Even some of the more vociferous amongst the critics have gone a step further in calling for criminal charges to be filed against him and prosecuted.

It is instructive to note that the Constitution as the nation’s organic law is required to contain only provisions on matters of general policy and that is exactly what Section 131 of it, which will be fully examined subsequently in this write-up, has done. It is not ordinarily expected to contain provisions on matters of less importance such, as in the instant situation, the mode by which a candidate vying for an elective position is to transmit his documents to INEC. The Electoral Act has however made provision for this, thus filling whatever lacunae that would have otherwise arisen. It is to enable other statutes to fill in such gaps in the organic law, amongst other things, that the Constitution, under Section 4, donates powers to the Legislative Arm of government to enact laws, where necessary, on such matters, amongst other things.

Section 131 of the Constitution reads:-

“131. A person shall be qualified for election to the office of President, if:- he is a citizen of Nigeria by birth; he has attained the age of forty years; he is a member of a political party and is sponsored by the political party; and he has been educated up to at least School Certificate or its equivalent”.

The requirements set out in paragraphs (a) – (c) are too plain and clear to admit of any controversy. The same opinion goes for the requirement set out in the first part of paragraph (d) which closes with the word “level”. It is however very doubtful if the same opinion can easily and readily be expressed on the second part of paragraph (d) containing the phrase “or its equivalent”. The apparent difficulty associated with that part notwithstanding, it however poses no problem because of the in-built mechanism in the Constitution for resolving such difficulty if and when it arises. This is Section 318, the provision dealing with the interpretations. It is therein explained what is meant by the phraseology “School Certificate or its equivalent” when it provides thus:-

“318. ‘School Certificate or its equivalent’ means a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or education up to Secondary School Certificate level; or Primary Six School Leaving Certificate or its equivalent and service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for minimum of ten years, and attendance at courses and trainings in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a maximum of one year, and the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission, and any other qualification acceptable by the Independent National Electoral Commission”.

The apparent but not real lacunae in the organic law on the mode for furnishing particulars to INEC by a candidate but for which the Electoral Act has made provision may appear to signpost a window of opportunity for the uninitiated to assume the presence of a conflict between the Act and the Constitution on the point resolvable in favour of the latter.

This is by having recourse to and placing reliance on the principle of supremacy of the Constitution as enshrined in Section 1 thereof, thereby rendering the position in the Act inoperative.

It is however not intended to canvass such ridiculous view in this paper bearing in mind our earlier postulation that other statutory enactments (the Electoral Act not excepted), inter alia, play the important role of providing for details on subject matters on which the Constitution deals but for which the latter may not ordinarily provide. It could have been a different ball-game if what the Act sought to do included attempt to elongate or otherwise circumscribe the qualifying factors provided for by the Constitution and listed in Section 131 thereof. In such case, it would have amounted to an consistency and/or a conflict resolvable in favour of the Constitution by virtue of Section 1, leading to an outright invalidation of the prescription in the Act only however to the extent of such inconsistency. Such was what played itself out in the case of Independent National Electoral Commission & Anor Vs Alhaji Abdulkadir Balarabe Musa & 4 Ors (2003)3NWLR (Pt. 806) p.72.

Nevertheless, having in the instant situation given space to a concession that there is no conflict on the point between the two, there now arises this all-important question: should a candidate who is otherwise proved to have met the requirements stipulated in Section 131 of the Constitution and as partly defined in Section 318 be held liable for disqualification on ground but no other that he failed to comply with some procedural steps, especially when such allegation appears erected on quick sand? Differently put, if presumably the Constitution did not find it expedient to make provision for such procedural steps through expanding S.131 to include it or accord it a place in a separate section altogether for which reason it could be argued that the Constitution   deems it mundane, could it have been intended by its framers, while providing for the relevant qualifications for the office that a particular mode and no other must be adopted in furnishing the qualification documents to INEC? Is the fact of the mode of getting the required qualifications to INEC more expedient than the fact that they have been received by it? Is there anything in the relevant subsections of S.31 of the Act which expressly forbids non-contemporaneous submission of the documents? Is there anything in Section 31 to suggest any time-frame within which to commence and conclude submission of all requirements or that they must all be submitted once?

Now the questions posed above easily lend themselves to be answered in the negative for two principal reasons viz:- a contrary answer to any of them will be an invitation to sacrifice a rule of substantive at the altar of a rule on procedure – a situation that has no place in our judicature, and there is nothing in S.31 of the Act commanding contemporaneous submission of a candidate’s application form/affidavit and copies of documents.

All of the foregoing relate to subsection (2) of section 31 of the Act.

With regard to subsection (3) the law has not set forth a particular period within which a candidate is to produce his particulars nor has it placed a bar on the number of times INEC is to publish the information a candidate has made available to it.

I must hasten to make this important clarification if one must avoid the doubt the omission to make it may engender. It is that in asking the last of the above series of questions, one is not oblivious of the mention of time-frame of 7 days in s.31(3) of the Act even as no time-frame of whatever description is enshrined in subsection (2). That which is mentioned in subsection (3) (here lies my clarification) has nothing to do with submission of information required in subsection (2) by a candidate to INEC but rather with the matter of publication of information received by INEC from a candidate by virtue of subsection (2).

Consequently, where a candidate is, for whatever reason, unable to carry out a contemporaneous submission of his form/affidavit and documents (ie a one-time submission of all) in the discharge of his obligation under subsection (2), he is not for that reason to be foreclosed. It only means that in such a situation, INEC’s obligation to publish the information does not arise unless and until the last information comes in. In that case, the 7 days time-frame mentioned in subsection (2) will begin to run from the date the last information was received. In the absence of any law, including the relevant provisions of the Electoral Act, expressly prohibiting such manner of submission and receipt of a candidate’s information, it follows that the submission is good and valid in law. Such approach, rather than tie the hands of the Electoral body, it in fact gives it a discretion and latitude, which discretion no one, including the Courts, can take away.

Bearing the foregoing in mind and guided thereby, even if the candidate in the instant case had omitted, as we were told, to attach his documents to his form/affidavit but subsequently made them available to and were received by INEC, such receipt and use by the latter very well meet the legal requirement for which the step is unimpeachable, provided INEC carried out the publication of the candidate’s information within 7 days of receipt of the last piece of information.

In the circumstance of the foregoing analysis, therefore, the allegation of improper submission of relevant information by the candidate to INEC on no ground other than that he did not attach his documents thereto, is baseless and ought to be ignored.

Allegation of perjury:

This allegation is founded upon an affidavit deposed to by the candidate to the effect that copies of his documents relating to his educational qualifications were with the Secretary, Military Board but that the military, subsequent to the making of the affidavit, denied that allegation of fact in relation to one particular document, the West African School Certificate (WASC). What in law amounts to perjury is defined in Sections 117 and 156 of the Criminal Code and Penal Code respectively. The relevant portion of the first, which is applicable in the Southern part of the country only, goes like this:

“S.117. Any person who, in any judicial proceeding, or for the purposes of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding, or intended to be raised in that proceeding, is guilty of an offence, which is called perjury”.

The second which is applicable in the Northern part only, including, the FCT states:

“S.156. Whoever, being legally bound by oath or by any express provision of law to state the truth or being bound by law to make a declaration upon any subject, makes any statement, verbally or otherwise, which is false in a material particular and which he either knows or believes to be false or does not believe to be true, is said to give false statement”.

As can be gleaned from S.117 of the criminal code quoted above, the false statement must be one made in a pending or impending judicial proceeding and touching on a material fact in the matter of the proceeding but that element is absent in the offence under the penal code. Bearing in mind the fact we are told the affidavit in question was deposed to in Abuja, the provision in the penal code shall be our guide. In the foregoing regard, the following points are germane and therefore worthy of consideration: the impact, if any, the denial by the military of the facts deposed to as they touch on the WASC, had on the deposition, objectively speaking;

whether the candidate, in his deposition, opened and closed the list or category of documents in question by way of serialization or itemization or in any other manner of classification;

whether at the time he deposed to the affidavit, any documents of his touching on and relating to the subject matter of the affidavit, ie candidacy in the Presidential race, not necessarily the vexed WASC, were with the Secretary, Military Board or where he deposed they were; and whether it has yet been proved who between the candidate and the military spokesman spoke the truth in their respective claims on the matter.

It is quite convenient to take the first three points in one fell swoop because of their interwoven nature. It must be noted, as threshold but howbeit crucial in consideration of them that the vexed question here is whether the candidate possesses WASC and whether a copy thereof was with the Secretary, Military Board at the material time? The importance of this question stems from the claim that the candidate had deposed to such fact but that subsequently, the military denied it. According to media reports, the candidate’s deposition in the said affidavit was couched inter alia as follows: “my documents are with the Secretary of the Military Board” or something to that effect. What is of paramount importance here is the phrase “my documents”. The important point it clearly underscores is that the deposition complained of contains a blanket reference to “my documents” as distinct from specific documents. It follows therefore that the list of documents was not made open and close in the affidavit nor was any, including the much vaunted WASC, therein specifically named.

An important follow-up question is whether at the material time, copy/copies of any document/documents of the candidate, other than WASC, was/were with the Secretary, Military Board? If none was with him, then the perjury allegation, all other things be equal, could be said to be well founded and properly situated with desired consequences. This is as far as the offence as defined in the Penal is concerned under which the factor of judicial proceeding is not an element.

Where however copies of the candidate’s documents were with the Secretary, Military Board, even if such did not include WASC, those ones come within the description of “my documents” as contained in the affidavit and in that case, it renders the allegation of perjury as one lacking in substance.

Besides, it is to be recalled the military did admit, through its spokesman, that they had record of the grades that the candidate allegedly scored in WASC but that they did not have the statement of result. The said record of the candidate’s grades, which the military admitted they had, I venture to state, very well answers to and comes within the description of “my documents”, amongst others, in the context of the deposition in question. Furthermore, the military did not deny the fact they had copies of documents of the candidate other than the WASC except that for inexplicable reason, they adopted a worrisome studied silence as a preference on such others. It is on record that whilst in the Army the candidate attended some State sponsored courses and trainings overseas. I am not a certificates evaluation officer as to be able to pronounce on the worth of such certificates. That is not my brief in this write-up. All I am saying is that at the end of such courses and trainings certificates were awarded to him and it is reasonably expected that copies of such certificates are with the military which sponsored him on the courses. Any contrary view, given the fact that he was sponsored on such courses by the military, will be a hard commodity to market.

Indeed, anyone with some ability to read body language and who had watched the military spokesman who spoke on the occasion in question would easily conclude he (the military spokesman) had quite a lot to screen from the public by not wanting to speak on other documents but rather chose to hammer on non-availability of WASC statement of result. Anyhow, as earlier stated, the issue of WASC being the basis for the claim that the candidate lied on oath is of no consequence because he never mentioned WASC or any other document in specific terms in his affidavit. At least, none of the media reports so indicated.

The calls for his disqualification on that ground without more, apart from the numerical strength which they richly enjoy, have nothing further to commend to them. Such calls are therefore unreasonable just as they are unnecessary and should accordingly be disregarded.

It makes no difference to the foregoing conclusion that none of the documents with the Secretary, Military Board as deposed to under the umbrella of “my documents” qualifies the candidate for the position. It makes no difference for the following reasons:- the deposition complained of is not to the effect that the deponent was qualified for the position sought by virtue of the legal prescription on requirements for it. That is to say a lot of difference exists between a deposition by a candidate that copies of documents supportive of his application were somewhere and one in which he claims to meet the prescribed qualifications, and it is not an offence under our law (at least none that I know of) for someone to apply for a situation vacant or to seek to contest for an elective office believing that he is qualified but subsequently found that he is not in fact qualified for the position or elective office. That is to say the mere fact of putting himself forward without specifically deposing to the fact of being qualified cannot render him culpable for perjury.

In the instant case therefore even if it is found that none of his documents with the military qualifies him for the position of President, the mere fact of his deposing to the fact of their whereabouts without saying more is no ground to proceed against him in perjury. All the calls for him to be charged for perjury simply represents storm in a tea cup.

Allegation that the candidate is not educationally qualified: As a threshold point under this part, it must be emphasized that we are here dealing with the question as to whether or not the candidate possesses the

Constitutionally-prescribed requirements as separate and distinct from saying the requirements were fulfilled but were not furnished to the Electoral body in the prescribed mode. This preamble immediately throws up the question: Is the Candidate qualified? This question falls to be answered within and certainly not outside the purview of the relevant legal prescription, that is S.131 of the Constitution, the text of which was earlier set out.

There would seem to be convergence of opinions on both sides of the divide that it admit of no controversy that the candidate has met the first three stated requirements. These are nationality, minimum age requirement of 40 years and membership of and sponsorship by a political party. The ranging controversies and the vehemence associated with them relate only to the requirement of educational qualification. It is alleged and with same degree of vehemence and passion that the candidate, in the opinion of the agitators, does not possess WASC.

At the risk of rendering myself liable to an accusation of working from the answer to the question or better still of beginning with conclusion on the point, I must observe pronto that unless or until those who are making this allegation bring forth, evidence to displace those that have so far been made available from the candidate’s former College and the Cambridge University showing that he passed the examination leading to the award of the West African School Certificate   (WASC), those alleging a contrary position may have to sheath their sword. I am not talking of those who are saying the name Mohamed Buhari as shown in the statement of result released is not the same as Muhammadu Buhari which the candidate bears. For those in that group (even though I know many of them ‘graduated’ from the initial argument of his not having WASC at all to one of presenting a forged one) (very dubious argument, I dare say) they will need to bring forward a Mohamed Buhari who is not the candidate and who is living or if dead, when he lived and died. Unless they can do the foregoing, the contention that Mohamed is not Mohammadu and therefore what has been presented is a forgery is, in the light of other available facts, bound to crumble with concomitant effect of rendering the candidate’s position the preferred one.

Assuming but without conceding that the candidate does not possess WASC as alleged, the fact that he fulfilled requirement of the part of paragraph (d) of S.131 which talks of “or its equivalent” and bearing in mind the definition of that phrase in S.318 remains one that is indisputable. The following factual analysis easily leads credence to the foregoing conclusion: he attended a secondary school although he might not have passed WASC (as his traducers would want us to believe). The mere fact of his attending a secondary school even if he did not pass WASC, has attained educational qualification above Primary Six School Leaving Certificate defined in the Constitution as one of WASC’s equivalents. He was in the service of the Nigerian Army in which he rose to the position of a General. The Nigerian Army evidently qualifies as ‘public sector’ as prescribed under S.318 of the Constitution. He could not have spent less than a minimum of ten years in the Army to attain the position of a General.

It is on record that he attended several courses and trainings abroad while he was in the Army and these courses were in institutions some of which awarded certificates which are said to be equivalent to Masters degrees. One of such institutions is the famous Mons Officer Cadet School in Alder shot in England – one of the best military institutions in the world.

These were for periods not cumulatively less than one year as prescribed in S.318 of the Constitution.

Still further, assuming but without conceding the candidate did not satisfy any of the requirements so far examined, there is yet one other which the Constitution regards as an equivalent and it is set out in the part of S.318 captioned: “School Certificate or its equivalent”. In the paragraph (d) therein, it is stated: “any other qualification acceptable by the Independent National Electoral Commission”.

It is most instructive to note that under our Constitution, INEC and no one else has the prerogative to determine:- the acceptability or otherwise of the public or private sector referred to in S.318, the acceptability or otherwise of the institutions in which a candidate undertook courses and trainings required under S.318 whether or not a candidate possesses the ability to read, write, understand and communicate in English language. acceptability or otherwise of any other qualification referred to in paragraph (d) of S.318 of the Constitution.

 

Conclusion:

Given the analysis made above of the relevant materials touching on this matter, therefore, the conclusion is inevitable that the three allegations made against the candidate and as clearly adumbrated at the beginning of this paper fall squarely to be resolved in his favour. Anyone who is desirous of having him disqualified from running for the office of President of Nigeria in the forthcoming elections and in order to succeed in his quest, may therefore have to seek some other premise and certainly not on the basis of those so far flaunted.

– Justice Amaize is a retired judge of Edo State High Court.