The week ahead – Cavitation

The number of justices at the Supreme Court has been reduced to 13 with the retirement of Justice Abdu Aboki. The valedictory court session to formally mark the retirement of Justice Aboki will be held on 15 September. In a statement by Supreme Court spokesman, Dr Festus Akande, Aboki turned 70, being the statutory retirement age for Supreme Court justices on 5 August but the valedictory court session could not be held then due to the court’s annual vacation. The remaining justices of the country’s highest court include the Acting Chief Justice of Nigeria, Olukayode Ariwoola, and Justices Musa Dattijo Muhammad, Kudirat Motonmori Olatokunbo Kekere-Ekun, Inyang Okoro, Chima Centus Nweze, Amina Adamu Augie, Uwani Abba Aji, Lawal Garba, Helen M. Ogunwumiju, I.N.M. Saulawa, Adamu Jauro, Tijjani Abubakar, and Emmanuel A. Agim. Section 230(b) of the Nigerian Constitution provides that the court should have “such number of justices, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly.” The reduced bench follows the departure of eight justices including justices Tanko Muhammad, Mary Odili, and Abdu Aboki, who retired; and justices Sylvester Ngwuta and Samuel Oseji, who passed away.

The Supreme Court is composed of the Chief Justice of Nigeria and such number of justices not more than 21, appointed by the President on the recommendation of the National Judicial Council (NJC), and subject to confirmation by the Senate. The country’s highest court has grappled with vacancies on its bench for a while, even prior to the sudden resignation of former Chief Justice Tanko Muhammad and the retirements of Justices Odili and Aboki. In its history, the Supreme Court has never attained its full complement; the closest it has ever achieved is 20 as of the beginning of March 2021. In 2016, President Muhammadu Buhari approved the appointment of two Supreme Court judges, Sidi Bage and Paul Gilinje, and in June 2019, wrote to the then Acting Chief Justice of Nigeria, Tanko Muhammad, on the appointment of an additional five justices of the Supreme Court of Nigeria. The President’s letter asked the country’s top judge to ‘‘initiate in earnest the process of appointing an additional five Justices of the Supreme Court of Nigeria to make the full complement of 21 Justices as provided by the provisions of the Constitution.” Since that time, the bench has shrunk, not grown. It might help to look at the jurisdiction which served as the inspiration for our current legal framework. In the United States, all justices are nominated by the President, confirmed by the Senate, and are expected to hold their offices for life or until voluntary retirement. Since justices do not have to run or campaign for re-election, they are (in theory) thought to be insulated from political pressure when deciding cases. While the American reality is markedly different, of course, in Nigeria, the issues are more structural. Justices retire at the age of 70, despite growing calls for its review. This includes a particularly bold one from Afe Babalola (SAN) for the retirement age to be increased from 70 to 100, based on the odd argument that justices become more experienced and wiser as they get older. While that is surely an extreme case, the depletion of the number of Supreme Court justices must be approached with caution, especially as in recent years, presidential election cases are settled by that court. The major reason behind these vacancies is that the appointments have to be balanced across the country to meet federal character while at the same time, not compromising competence. As of March 2022, only the North-East had all its slots occupied while the other geopolitical zones had one slot empty except for the South-South which had two empty slots. It is not clear what the distribution of empty seats is now in light of recent departures. However, the impact of this is that 13 justices are saddled with a huge caseload, and it slows down the dispensation of justice. This is especially crucial as we enter an election year, and have to prepare for the possibility of election petitions emerging from the polls. President Buhari’s engagement with the Supreme Court and the judiciary, from home invasions to disrespecting court orders, leaves much to be desired and raises important questions about whether the appointment of additional justices will be a priority for a term-limited president in the twilight of his administration. A strong judiciary is a democratic prerequisite to the enshrinement of the twinned principles of separation of powers and checks and balances. Politics aside, the National Judicial Council needs to act fast and fill those slots.

The Independent National Electoral Commission (INEC) has said eligible Nigerians who registered in the just concluded Continuous Voter Registration (CVR) would get their Permanent Voter Cards (PVCs) before December this year. INEC National Commissioner in charge of Information and Voter Education Committee, Festus Okoye, said this in Abuja on Monday. He said the clean-up of the register of voters using the Automated Biometric Identification System (ABIS) is ongoing since the CVR was suspended on 31 July 2022. He added that several double, multiple, and ineligible registrants including entries that fail to meet the commission’s business rules have also been detected and invalidated. Okoye stated that the commission takes that responsibility seriously because a credible register is at the heart of electoral integrity. However, on its part, the opposition parties have displayed extracts of the National Voters register, which they claimed were part of at least 10 million fake registrations done by one of the political parties which they alleged contained names sourced from both within and outside Nigeria. Meanwhile, the Coalition of United Political Parties (CUPP) has exposed a court action to stop the use of the Bimodal Voter Accreditation System (BVAS) machine in the upcoming 2023 general election. CUPP also alleged a plot to remove the National Chairman of INEC, Professor Mahmood Yakubu, claiming that Yakubu was under pressure for the commission to announce a change to its hard stance on the compulsory use of the BVAS machine for accreditation or get sacked as chairman of the commission.

The publicity following the announcement of the availability of the voters’ card has not been as fierce as required. On its part, INEC has not gone beyond the mere issuance of public announcements to outright engagements with the public on the need for the registrants to pick up their cards. It is important that INEC ensures that all newly-registered voters as well as those who transferred their PVCs, or requested replacements get their cards before the elections. This is especially as the argument brought forward by INEC to end the registration process at the end of July was to provide enough time for it to process the cards as well as to ensure there are no multiple registrations. The major challenge beyond this is INEC itself. There have been several complaints on social media about inexplicable delays by the commission in issuing the new cards. SBM’s own survey on the registration process confirms this, as respondents reported going to designated centres multiple times before they were able to get their cards. This has led to allegations of bribery, shakedowns and extortion–acts that may prove detrimental to voter turnout as some people believe that INEC’s delay in issuing voters’ cards is an attempt at voter suppression. This emerging crisis of confidence in the electoral body’s capacity to manage the elections is further compounded by new allegations by a consortium of political parties that the voter accreditation process might be politically compromised by powerful actors who are not fans of the new technological innovations aimed at addressing voter fraud. Such uncertainty coming up this close to the elections is unhelpful and risks raising the stakes needlessly. At the same time, INEC and other government agencies such as the National Orientation Agency need to intensify public engagement to get voters to pick up their cards to avoid a repeat of 2019 where there were as many as 11 million voters’ cards uncollected by election time. A few weeks ago, we commended Kenya’s IEBC for publishing the country’s electoral register ahead of its election. The register showed 250,000 dead people and the period between the publication and the actual election gave the commission enough time to rectify the error. INEC so far has not said when it would publish its own but it has to know that there is not much time left. While civil society organisations have shown a willingness to engage and test new approaches to mobilise PVC collection, INEC itself should be active and not passive in this endeavour.

Some police officers were killed on Sunday when gunmen attacked the convoy of Senator Ifeanyi Ubah (YPP, Anambra South). The senator’s convoy was attacked in Enugwu-Ukwu, a community in Njikoka LGA, while he was returning to Nnewi, his hometown, from a function. The gunmen ambushed and opened fire on the convoy, killing at least three of the police officers attached to the lawmaker. Mr Ubah escaped the attack but sustained injuries. “Some of his aides were killed, including some police officers. The senator managed to escape as his car was riddled with bullets,” a witness said. Another source said that the assailants, who were about nine in number, took the weapons of the victims before leaving the scene. In its initial reaction, the FG blamed the secessionist group, IPOB.

Although the past few weeks have been relatively calm in Anambra, the attack on Senator Ubah’s convoy did just enough to shatter this phoney peace in one of the states worst hit by the violence caused by criminal groups. For now, no group has claimed responsibility for the attack. However, the weapons theft reported at the scene of the attack is consistent with the actions of faceless gangs who take on armed law enforcement agents in order to steal their weapons which are in turn, deployed to fuel more vices such as armed robberies, gang wars and kidnappings. This attack is also significant for political reasons. It happened in a state grappling with poor political participation. The 2021 Anambra election witnessed historic lows in turnout numbers as only 10 percent of registered voters turned up to vote. Continuous violence will accelerate this trend. Following IPOB’s declaration of a regional sit-at-home because of Nnamdi Kanu’s arrest, detention and trial, SBM conducted a survey in the South East in September 2021 and found that compliance with the order is a result of the use of force by the separatists in enforcing it. Mr Ubah’s status as a political figure plays an important part in gauging how peaceful the elections might be in a region bedevilled with a myriad of security challenges. But there is a final word to be said about the protection of police personnel. What saved the Senator was his bulletproof car. The police officers who died could not afford the luxury of such. That raises questions about the police’s commitment to protecting its personnel and improving its performance. In 2018, The Police Service Commission (PSC) said that more than 150,000 policemen were attached to VIPs and unauthorised persons in the country. In the same year, the Assistant Inspector-General of Police (AIG), Zone 5 in Benin, Rasheed Akintunde, said that only 20 percent of policemen are engaged in core police duties of protecting lives and ensuring peace in the country. “The remaining 80 percent are just busy providing personal security to some ‘prominent people’ on guard duties.” Although Senator Ubah cannot be considered an unauthorised person, the sheer amount of police officers attached to his convoy not only creates gaps in policing but in a country where the police make routine statements about withdrawing personnel from VIPs, this incident tells quite ‘a hand of Esau and the voice of Jacob’ story.

The Senate Committee on Finance, during a panel meeting between Finance, Budget and National Planning Minister Zainab Ahmed and heads of revenue generating agencies in Abuja, has kicked against a ₦6 trillion tax and import duties waiver in the 2023 proposed budget. The meeting, on Tuesday, reviewed the proposed 2023-2025 medium-term expenditure framework and fiscal strategy paper (MTEF/FSP). The minister informed the committee that the ₦19.76 trillion proposed as the 2023 budget would have a deficit of ₦12.43 trillion because ₦6 trillion had been projected as tax and import duty waivers, while fuel subsidy would take ₦6 trillion. In his reaction, committee chairman, Olamilekan Adeola (APC), rejected the budget proposals, saying the projected ₦12.43 trillion budget deficit and the ₦6 trillion tax and import duty waivers should be adjusted before sending the proposals to the national assembly for consideration and approval. He also urged the minister to look into the list of beneficiaries of the waivers for the required downward review to ₦3 trillion to give room for the reduction of the ₦12.43 trillion deficit. The committee also directed the Nigeria Customs Service (NCS) to review the proposed waivers in the fiscal document downward by 50 percent and asked the Federal Inland Revenue Service (FIRS) to critically look at the abuse of tax credit by some companies. Ahmed said the issue of the budget deficit is a result of debt servicing while Muhammad Nami, FIRS chairman, told the committee that tax credit was an important government innovation that had yielded positive results from September 2019 when it was introduced through Executive Order 007 by President Muhammadu Buhari. He urged the committee not to scrap it, saying it is only given to companies with evidence of projects executed.

While tax rebates and tax credits are generally key incentives for governments to drive individuals and businesses towards certain actions that are more important for the greater good than the monetary income from the tax, the handling of these rebates and credits in Nigeria has been so open to discretion and abuse that, at a time when Nigeria is struggling with record budget deficits and a fiscal crisis, it is advisable that the position of the Senate Committee on Finance be adhered to. For example, an enquiry by the House of Representatives reported that the Obasanjo administration (1999 – 2007) granted about 1,843 waivers, many of which were described as “illegal and indiscriminate,” having been given to “totally undeserving firms and individuals”. Fast-forward to the Jonathan administration (2010 – 2015) during which there were publicly aired contradictions between the amount given as waivers by the Nigeria Customs Service and the Ministry of Finance, with Customs stating that it had lost ₦1.4 trillion to import waivers in the three-year period between 2010 and 2013, including many questionable waivers like ₦91.5 billion that was given as concessions to 290 beneficiaries between January and December 2011. However, the Ministry claimed the total amount waived was only ₦171 billion but also revealed that Federal Executive Council (FEC) expanded the scope of the Negotiable Duty Credit Certificate (NDCC) to cover “other goods,” a decision which seems to have opened the flood gates to every Bayo and Emeka. Under the Buhari administration, things have gotten much worse with BusinessDay reporting that the Nigerian government in 2021 alone granted waivers, incentives and exemptions worth ₦2.296 trillion to different institutions. A 2019 report of the Auditor General of the Federation noted that the DG of Customs arbitrarily granted a ₦78.5 billion waiver to various companies and ₦17.2 million in waivers to staff of the Ministry of Foreign Affairs. The audacity of the government to propose ₦6 trillion tax and import duties waivers in the 2023 budget is the height of impunity and financial recklessness, considering that that amount is about 93% of the total revenues generated by the Federal Inland Revenue Service in the whole of 2021! Nigeria cannot afford this level of rebates when it is projected to need to borrow ₦11 trillion to fill its budget deficit. It is a good policy that has been administered poorly and is not fit for Nigeria’s current reality.