Immediately Chief M K O Abiola, the man believed to have won the June 12 polls arrived from his two-month self-exile, things started to happen, and it was happening so fast that it became very difficult for the Head of the Interim National Government, Chief Ernest Shonekan to control the speed. He could not even dare to apply any brake.
First, on seeing Abiola, elected officers and elders of the Social Democratic Party (SDP) rose from a conference on Saturday, 25 September 1993, reaffirming their commitment to the June polls and setting up a committee for the struggle that the actualisation of the election would ensue. The Senate President, Dr Iyorchia Ayu, convened the conference.
Thus same day, all SDP legislators came out with an instruction for Abiola to commence a national dialogue in earnest, meeting people that mattered across the country as a way of reclaiming his mandate. They asked him to explore a way of forming a National Government that would be broad-based which would allay real or imagined fears of groups apprehensive of Abiola-Kingibe led SDP federal government.
Defence secretary, Gen Sani Abacha , with ECOMOG field commander, Major-Gen John Shagaya who was leaving for Liberia, at the Murtala Muhammed Airport, Lagos
On Monday, 27 September 1993, pressures for the rehabilitation of the result of the June 12 election arose a notch as seven elders of SDP pledged to press for the restoration of full blown democracy, a tacit denouncement of the Interim National Government. The elders were from various parts of the country, and this put the blood level of the government far away from placidity. They included: Chief Sam Mbakwe, Alhaji Balarabe Musa, Chief O. B. Lulu Briggs, Dr Datti Ahmed and Chief Olu Falae.
To throw more fears into the government, the group called its name June 12 Movement for National Unity and Democracy, and held its inaugural meeting in Lagos. The group said it was non-partisan, but had called on all Nigerians to reject the so called Interim Government and pressurise them to release the result of the June 12 election, whereby those who had been elected to rule the country could take charge of the affairs of the nation. Shonekan and his friends did not see this group as apolitical, and he sensed trouble.
Whereas, Abiola too had begun his dialogue, the day the June 12 Movement was being inaugurated in Lagos, he was already in Edo state to first see the Chairman of his Party, Tony Anenih. It had been established that the Chairman had a soft spot for the Interim Government, and Abiola thought the re-approchment should start from his end. So, he was in Benin to see Anenih the Chairman; the then governor of Edo State, John Odigie-Oyegun and Omo N’Oba Ereduwa, the Oba of Benin.
But before he left, he had aggravated the uneasiness of the Head of the ING. Some journalists from the Voice of America (VOA) visited him at his Lagos home, wanting to know what his views were on the Shonekan government’s plan to conduct a fresh presidential election in January 1994, less than three months away. Abiola laughed and said, “They won’t last that long. They will be forced to go!”
The Shonekan government too was not waiting for Abiola to pull the rug off its feet; rather it announced that an update of the voters’ registration in preparation for the January election would start November 1. This must have angered Abiola, for it was the day he invited the military to untie the June entanglement. He was in Kaduna on Tuesday, 28 September 1993, and it was here he first mentioned that he was truly in concert with General Sani Abacha. Abiola said:
“I really commend Gen. Sani Abacha because out of the love of the country, he puts his common sense, experience, tact and intellect to ease out the former President, Gen Ibrahim Babangida. I have no doubt that it is that common sense, that patriotism, that intellect that will enable him to ease out Babangida’s surrogate (Shonekan) too. I have been talking with the military people … They are the people to talk to because the military caused this for the country. But for people like Sani Abacha, this country would have been plunged into bloodshed.”
With this invitation, most observers knew Abiola was having an arrangement with the military, though; no one could be definite about the format of the alliance. But this was tasking the zeal of Shonekan, he was not also sure what Abiola was discussing with Abacha before he could go all out praising him in such a high-flaunting language. And he moved. On Wednesday, 29 September 1993, Shonekan promised to raise a panel on June 12 election.
He was talking with traditional rulers who had visited him from the east, and when they suggested to him to raise a panel of inquiry into the June 12 election, to determine the losses suffered from its controversial annulment by Nigeria with a view to paying adequate compensation to those affected, the Head of the Interim Government quickly acquiesced, saying he too had planned to investigate the matter. But he dropped a bombshell: June 12 had come and gone, and many of such dates were still to come.
And it seemed the gods were working for Shonekan when hope for a negotiated end to the political logjam appeared forlorn as state governors elected on the platform of the National Republican Convention (NRC) vowed to resist any form of dialogue on the annulled June 12 polls. Six of them from the east pointedly warned that a reopening of June 12 election issues posed grave danger to the stability of the nation.
For the NRC governors, June 12, on 29 September 1993, was a forgone matter. Besides, the governors who met the Head of State in Abuja staunchly opposed any kind of dialogue between the Interim National Government and MKO Abiola, the SDP flag-bearer believed to have won the election. Alhaji Saidu Barda of Katsina State who spoke for his colleagues, likened the cancellation to another coup d’état by the military against the civilian political class. As such, any dialogue on the subject should, therefore begin with the need to re-install former President Shehu Shagari, ousted in a military putsch in 1983.
But many people faulted the NRC governors, even one of them; Michael Otedola from Lagos dissociated himself from the pronouncement. He said he was not in Abuja with the other NRC governors and could never have been in support of those who were against dialogue in resolving the June 12 debacle. The governor wondered why anyone would compare the situation at hand with the sacking of the Shehu Shagari government by a military junta. And the crack in NRC manifested, just as the appearance of a bigger gulf in the SDP itself.
But that did not stop the Northern NRC governors to seek Shagari’s reinstatement. All the nine governors from the zone met and specifically said that the cancellation of June 12 was a coup and another coup could not be revisited except recourse was taken to the December 1983 coup which ousted former President Shehu Shagari. The nine governors warned that the clamour for the restoration of June 12 could only cause destruction which, when it began, would have no boundaries.
From there on, no one knew what would happen next. Though Shonekan on 1 October 1993, said he foresaw a bright future, nobody believed him, not even those with him in the Government House, for the whole thing was becoming too gloomy. But he waddled on, setting up the June 12 probe panel, with a promise that the coming election being organised by his government would be free and fair.
Abiola had his problems too. He had hoped dialogue would resolve the issue, and had visited many leaders of the country. He was with Dr. Nnamdi Azikiwe who gave his support; he visited Shehu Musa Yar’Adua who had a strong hold on SDP officers; he was with Emeka Ojukwu, even with Arthur Nzeribe, who was used by the military to annul the election. But all these visits came to nothing since the NRC governors, and some other sectional leaders would not agree to revisit the June 12 polls annulment.
Most painful to Abiola would be the widening crack in his own party, the SDP. While he continued the struggle to get back his mandate, and with the support of many officers of the party, Tony Anenih, the Chairman of his party, joined Ahmed Kusamotu, the Chairman of the opposition NRC to canvass support for the Interim National Government.
Some Senators had met in Enugu on Friday, 15 October 1993, to take a stand on the annulment of the election and had invited Anenih and Kusamotu to brief and advise them. Anenih told the gathering that the Interim Government was the only option capable of steering the country away from disintegration. He said: “There was no way we could have saved the corporate existence of the country if we did not accept the formation of an Interim Government.”
It was probably based on the activities of these centrifugal forces in and outside his party that Abiola, without much noise about it, returned to court on 15 October 1993. He had observed that he was losing the battle, and if he failed to act fast, everything would be gone: the party machinery did not believe in the actualisation, the army would not act if there was no serious rift within the political class, and Shonekan was not ready to let go. So, the court must be the final arbiter. And there he went.
On 16 October 1993, the Guardian reported the move thus:
“Abiola challenges interim govt in court
For the second time in three months, Social Democratic Party (SDP) torch-bearer, Chief Moshood Abiola, headed for Lagos high court yesterday in quest of a judicial endorsement of the June 12 polls widely believed to have been won by him.
This time, Abiola and his running mate in the voided polls, Alhaji Baba Gana Kingibe, with whom he instituted the former suit are challenging the legal basis of the Interim National Government Decree 61 of 1993 which legalises the Chief Ernest Shonekan led government installed on August 26, with the exit of the General Ibrahim Babangida-Ied Federal Government.
Among other things, Abiola and Kingibe based their fresh action on legal contention that by virtue of some decrees enacted by the Babangida regime, the Interim Government decree was defective and appointment of its members invalid.
The reliefs being sought are technically different from the one Abiola and Kingibe sought in July when they instituted the first suit, although if both reliefs were granted by the court, the effect to declare them winners of the annulled election would be the same.
In their first suit, the SDP candidates challenged the poll’s annulment. They asked the court to declare it legal, release the election result and declare them winners accordingly. The suit filed on their behalf by Chief Rotimi Williams (SAN) was eventually struck out on ground of jurisdiction which the court held that it lacked. Also, between July and August, 14 SDP controlled states filed a suit at the Supreme Court similar to that of Abiola and Kingibe. The suit too was struck out 87 days ago when the Supreme Court declined jurisdiction.
Yesterday’s suit was filed on behalf of Abiola and Kingibe by Prof. Alfred Kasunmu (SAN). It was in apparent fulfillment of hints given earlier in the week by Abiola that the legal propriety of the Interim Government would be tested.
Specifically, the decision to head for the court again was advised by the SDP legal and constitutional committee in a report presented last Monday to the Jos conference of the party’s elected public office holders. The committee, headed by former national publicity secretary of the Nigerian Bar Association (NBA), Chief OIadipo Jimilehin, recommended a court action, arguing, among other things, that as at August 27 when Gen. Babangida had quit the political stage, the Interim Government decree ‘Was not legally in effect.
Yesterday’s suit was also predicated upon the Constitution of the Federal Republic of Nigeria (Suspension) Decree 59 of 1993 by virtue of which, Abiola and Kingibe contended, the 1989 Constitution took effect on August 26 or 27. Respondents in the fresh suit are National Electoral Commission (NEC) and Federal Attorney-General.
Abiola and Kingibe want the court to declare that Decree 61 of 1993 does not give power to anybody to appoint Shonekan or anyone else as Head of State and Commander-in-Chief of the Armed Forces. The appointments of Shonekan and all the Federal Secretaries, they argued, were not validly made and as such should be declared null and void, and that a perpetual injunction should be made to restrain all the members of the Interim Government.
They urged the court to declare that the 1989 Constitution of the Federal Republic of Nigeria came into force on August 26 or 27, and that Abiola is the only person duly elected as President in law, and that the presidential election was held in accordance with provisions of the Transition to Civil Rule (Political Programme) Act Cap 443 Law of the Federation of Nigeria, 1990.
Cheif Abiola and Chief Nzeribe in Lagos
Other reliefs being sought are:
- That the court should declare that the purported annulment of the June 12, 1993, presidential election in the mid-stream was illegal, null and void and of no effect because it was not done in accordance with due process;
- An order directing the NEC to announce the outstanding States’ results and declare the winner; and
- That the Chief Justice be mandated to swear in whoever is declared the winner of the June 12 election.
The affidavit which supported the motion was sworn to by Abiola himself, amidst supporters, at the Ikeja High Court registry yesterday morning around 10.00 a.m. The affidavit with the main motion was brought to the Lagos’ High Court by Kasunmu and a litigation officer in his chamber. Mr. Olawale Dauda.
Abiola, in the affidavit recounted Nigeria’s political history from the termination of former President Shehu Shagari-headed Second Republic in December 1983 by Gen. Muhammadu Buhari and other military officers, including Gen. Babangida. According to him, the Babangida regime promulgated the Transition to Civil Rule (political Programme) Decree, now cap. 443 of the 1990 Laws with the aim of disengaging the military from governance:
The June 12 election was, he argued, properly conducted by NEC, but the Federal Military Government under Gen. Babangida annulled the result and suspended the Prof. Humphrey Nwosu-led NEC.
Abiola’s particular grouse is an alleged inconsistency in pronouncement by the former government on reason for the polls annulment. In one breath, the government, according to him, said the result was annulled “in view of the spate of litigations pending in various courts,” and to protect our legal system and the judiciary from being ridiculed and politicised both nationally and internationally.” But the same government, represented by former Vice- President Augustus Aikhomu, said it was voided because Abiola was not acceptable to the military. On another occasion, Gen. Babangida said it was cancelled owing to electoral malpractices.
Abiola noted that beside the annulment, the Interim Government was installed, and the following decrees were enacted by Babangida’s administration.
- Decree 53 of 1993 – Constitution of the Federal Republic of Nigeria (Suspension);
- Decree 59 of 1993 – Constitution of the Federal Republic of Nigeria (Suspension);
- Decree 60 of 1993 – National Assembly (Basic Constitutional and Transitional Provisions) Repeal; and
- Decree 61 of 1993 – Interim National Government (Basic Constitutional Provisions).
Although no date has been fixed for the motion’s hearing, the affidavit of urgency sworn to by Dauda, is expected to hasten the process.”
The threat of the court case would not stop the opponents of the June 12 revalidation; rather it quickened their move to find a place in the dumpsite to throw the polls and its results. The Interim Government was not resting on its oars; it continued to reach out to all arms of government. While Abiola was going to court, 57 senators belonging to the two political parties came out on 16 October 1993 to re-endorse the Interim Government.
Their re-endorsement of the ING came as expectation heightened that the National Assembly itself might soon reconvene as legislators for and against the re-visitation of the June 12 presidential election were plotting strategies to perfect their antagonistic positions. The battle was moving to the assembly, and the interim government’s rainmakers were getting closer to the members before their resumption. Just then, another tornado hit the dialogue castle.
It was from the court: Abuja High Court. A man called Alhaji Wada Nas had gone to court to challenge the raising of a panel to probe the June 12 election, urging the court to put a stop to it. Justice Muhammed Dahiru Saleh on Monday, 18 October 1993, ruled that the Chairman and members of the commission should refrain from sitting, taking evidence, or conducting any business or function connected with the June 12 probe in whatever form.
While this was going on, the NRC was urging people to come out and participate in the voters’ register review, so that they would be able to vote. To them, the June 12 was no longer an issue; the new election coming in January should be everyone’s focus. 13 governors of the NRC came out after their meeting in Abuja on 19 October 1993 and appealed to everybody in their states and Nigerians in general, to come out en-masse for the programme.
But Abiola scored another point on 20 October 1993, when university teachers made a case for the sanctity of the voided June 12 presidential election which according to them had enshrined and engraved democratic principles in Nigeria.
The Academic Staff Union of Universities (ASUU) position, unveiled after a meeting of its national executive committee in Lagos, was that the election was nationally and internationally adjudged to be free and fair, hence it must be restored. Also, Olusegun Obasanjo, who was held as the father of the Interim Government came out to say he did not believe a fresh presidential election was possible because of the prevailing political atmosphere in the country.
Obasanjo said the interim government headed by Ernest Shonekan could never successfully lead the country to democracy as its members were handpicked. He argued on 27 October 1993, that only a National Government produced through discussion among progressive elements would command the independence, credibility, integrity, purposefulness and public confidence to take Nigeria out of the political and economic debacle.
Obasanjo’s advice came in just as the North-East SDP Forum backed the Interim Government and its new presidential poll shifted to February 1994. The North East Forum comprised members of SDP from Borno, the home state of Baba Gana Kingibe the running-mate of Abiola, who was in court with the Chief over the annulled election.
And the confusion continued until Thursday 28 October 1993, when fireworks began at the Lagos High Court where Abiola formally asked the court to declare the Interim National Government illegal. The story was reported on 29 October 1993, this way:
Chief Abiola and Dr, Ayu who visited him at the headquater of his Hope 93campaign organisation in Ikeja, Lagos
“Abiola, Kingibe ask court to declare interim Govt illegal
Legal arguments raged for more than three hours yesterday at a Lagos High Court as Chief Moshood Abiola and his running mate in the annulled June 12 presidential election, Alhaji Baba Gana Kingibe, sought a nullification of the appointment of members of the Interim National Government (ING).
Their lawyer, Prof. Alfred Babatunde Kasunmu (SAN), marshalled arguments to persuade the court that the Interim Government (Basic Constitutional Provisions) Decree 61 of 1993 which established the Interim Government was unconstitutional, null and void because former President Ibrahim Babangida lacked the legislative competence to sign the decree into law when he did so.
But the government’s lawyer, Chief Jerry Okolo (SAN), contended that it was not the court’s duty to inquire whether the decree was validly promulgated and that the mistakes in the decree which Kasunmu relied on for his submissions were irrelevant to the substance of the decree. Besides, he argued, the court was precluded by the ouster clauses in the decree from questioning its validity.
Abiola and Kingibe, believed to have convincingly won the election on the ticket of Social Democratic Party (SDP), filed the suit on October 14, against the National Electoral Commission (NEC) and the Attorney-General of the Federation.
It essentially challenged the constitutionality of Decree 61 of 1993 and the various appointments made to the Interim Government under it.
Yesterday’s proceedings, the first since the filing of the suit, were witnessed by an unprecedented crowd of lawyers, journalists, politicians, market women and members of the public.
Prominent figures present in court included Abiola, accompanied by his wife, Kudiratu; Kingibe; the deputy governor of Osun State, Adesuyi Haastrup; “the strongman of Ibadan politics, Alhaji Lamidi Adedibu, and the chairman of the Campaign for Democracy (CD), Dr. Beko Ransome-Kuti. The courtroom was so full that Justice Dolapo Akinsanya could not conduct proceedings and had to rise for about 20 minutes for some order to be restored, especially as the crowd became excited and uncontrollable on Abiola’s arrival at 9:20 a.m.
The three entry points to the courtroom were completely blocked by a mass of spectators while some climbed the windows to witness proceedings. The crowd spilled into the corridor of the court premises and the adjoining Igbosere Road. The ceiling fans and air conditioners in the court room could not assuage the heat as everyone sweated freely. Justice Akinsanya had to ask the lawyers to remove their wigs to reduce the discomfort.
Before he began his submissions, Kasunmu tendered a copy of the Federal Government’s Official Gazette number 23 dated August 23, 1993, which contains Decrees 58 to 61 and the court admitted it as an exhibit. Kasunmu then withdrew four of the claims in the suit.
Dealing first with the issues raised by the government in its counter-affidavit, Kasunmu said, contrary to the government’s contention that every member of the interim government should have been joined as a defendant in the suit, the action was merely challenging the validity or constitutionality of the government and not directed against individuals.
He argued that to ask Abiola and Kingibe to join the Head of State, secretaries and all other functionaries of the Interim Government who are likely to be affected by the suit, would be asking them to do the impossible. Kasunmu explained that the Attorney-General is the person charged by the Constitution to represent the government in any suit challenging the acts of government. It was an age-long tradition with numerous examples in the law reports, he added.
The practice, he said, was derived from the common law and the leading authority on the issue is the decision of the Court of Appeal in England on Dyson vs The Attorney-General (1911). K. B. 410.
On the issue of jurisdiction, he observed that Section I of Decree 61 attempts to oust the court’s jurisdiction. Describing it as a “curious section,” Kasunmu said he doubted if it was drafted by a lawyer as it attempted to bind future legislative enactments, resulting in absurdity.
He argued that the court could not apply the ouster clause in Decree 61 without first determining whether the law was validly made. He said: “Assuming the Decree was signed by President Sani Abacha and I come to court to challenge the Decree on the ground that there is no President Abacha, surely the ouster clause cannot operate.”
Kasunmu submitted that, although Decree 61 was alleged to have been made on August 26, the gazette in which it was published is dated August 23, meaning that it was published before its promulgation.
He observed that Mr. Maganawaga Garba, a lawyer in the Federal Ministry of Justice, who deposed to the government’s counter-affidavit, did not explain the discrepancy.
He argued, that although Garba claimed in the counter-affidavit that Decree 61 was signed by Babangida before Decrees 58, 59, 60, the case of Abiola and Kingibe is based on the fact that, in the absence of any credible evidence to the contrary, the court would hold that the decrees were made in their logical sequence.
Kasunmu noted that the Constitution (Suspension and Modification) Decree 1 of 1984 was the authority of the Federal Military Government to legislate and exercise any legislative authority. But he observed that Decree 59 of 1993 had suspended Decree No. 1 of 1984.
By signing Decree 59 of 1993, he remarked, the Babangida administration “committed a suicide” because it immediately divested itself of all legislative powers.
Relying on sections 15 and 36 of the Interpretation Act, he submitted that since Decree 59 was signed on August 26, it is deemed to have come into effect a minute after midnight of August 25.
He argued that with the enactment of Decree 59, the President no longer had the legislative authority to sign Decrees 60 and 61 and as such, Decree 61 was made without legislative authority and competence.
Kasunmu contended in the alternative that, even if he accepted the government’s contention that Decree 61 was signed before Decrees 58, 59 and 60, it would mean that immediately General Babangida signed Decree 61, legislative powers became vested in the National Assembly and the executive authority in the Interim Government so that he could no longer sign Decrees 58 to 60.
The legal consequence of this, he argued, is that the Constitution (Suspension Amendment) Decree 54 of 1992 which stipulates that anyone serving in the Transitional government cannot take office for 12 months after the period of transition which was purportedly amended by Decree 59 of 1993 would still be in force.
Kasunmu said even if the court accepted Decree 61 to be valid, Abiola and Kingibe are also contesting the constitutionality of the appointment of Chief Ernest Shonekan as head of the Interim Government, as well as the appointment of secretaries in the government.
He submitted that whoever appointed Shonekan did not derive powers to do so from Decree 61 because, although the law established the office of Head of the Interim Government and Commander-in-Chief of the Armed Forces, it did not give anyone powers to appoint Shonekan to that office.
He said Abiola’s allegation in his affidavit that Shonekan was appointed by Babangida on August 26, was not denied and since no provision of decree 61 vests Babangida with any authority to make the appointment, it was illegal and invalid.
Kasunmu submitted that since the appointment was made outside the provision of the Decree, the government could not seek refuge under the ouster clause to prevent the court from hearing the suit.
He applied the same argument to the appointment of secretaries which he said was done by Babangida even though Decree 61 vests the Head of the Interim Government under Section 49 (2) with power to appoint secretaries.
Kasunmu argued that if Babangida stepped aside on August 26 under the Interpretation Act, he would be deemed to have quit on the midnight of August 25 and could not perform any executive or legislative function on August 26.”
This is where the battle of who was in charge between Abiola and Shonekan began, the nation and the international community were now following the case to see where it would end. But not only these people, there were other interests watching: the military was now interested.
MKO Abiola and Ernest Shonekan