During the outgone week, the Department of State Services came out with a statement alleging that certain individuals were planning to foist an interim national government on the Federation of Nigeria. It was about a plan to sabotage the democratic handover process and foist an arrangement unknown and not within the contemplation of the Constitution of the Federal Republic of Nigeria 1999, as amended. The revelation was met with outrage, doubt and admonitions on the part of Nigerians of different persuasions.

It was an outrage for some Nigerians who were deeply annoyed and sought the full weight of the law for such persons. Others doubted the truth of the revelation considering that the secret police, in accordance with its statutory modus operandi, should have simply kept quiet, gathered sufficient evidence and used the same for the prosecution of persons seeking to violate the law. Admonitions came from Nigerians who doubted the revelations and cautioned that the methods disclosed by the secret police to be used to effect the sabotage of the democratic handover of power – the exercise of the legal right of protest in a freedom of assembly ventilation as well as the judicial process were about the exercise of rights recognised in the constitution.

This discourse reviews the constitutional and relevant legal provisions on taking power in a way and manner that sabotages the constitution. The 1999 Constitution in S1 (1) and (2) was clear on the supremacy of the constitution. In S.1 (1), it states that: – “This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” In (2), it states that: – “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”. These provisions are the kernel and backbone of the debate on the DSS statement on the attempt to sabotage the constitutional process.

It is imperative to understand the full implication, ramification and the various methods through which an individual, group of persons, etc., can subvert the foregoing constitutional provisions.  Essentially, through what means can an individual or group govern or take control of the government of Nigeria or any part thereof illegally. The constitution did not go into details to define the various means and methods through which this could happen.

The first method that naturally comes to the mind of older generations of Nigerians is the “fellow country men and women” coup speeches of previous military dictators and juntas. It is about the overthrow of a civilian government through a coup by soldiers, a violent overthrow of the constitution and the existing legal order because what happened has been stated to be a revolution and outside the contemplation of the constitution. However, stating that a coup is outside the contemplation of the constitution questions the very basis of the afore-cited sections. What were the provisions meant to avoid or what mischief were the provisions were responding to? Evidently, the provisions were responding to the possibility of such actions like military takeover of government. But suffice to state that coup making is not one of the legal and legitimate methods of gaining control of government in Nigeria as well as in all civilised climes of the world.

The second is that the idea of taking control of the government of Nigeria or any part thereof could also be done or attempted by terrorists and insurgents who gain control of territory, not by election but in defiance of the law and through the sheer force of violence. It could be an attempt at balkanising Nigeria. This resonates with the activities of groups who deploy force and violence to achieve their ends of dividing Nigeria or gaining control territory.

Furthermore, there is a method deployed by groups and persons who seek to take control of the governance of Nigeria or a part thereof, which is often downplayed in constitutional jurisprudence and the practice of the security agencies who seek to maintain the sanctity of the constitutional order. This unconstitutional method can only be fully understood within the concept of the popular franchise and the basic aphorism of one man, one woman being equivalent to one vote, once the person(s) fall within the voting age. It is also about the freedom of a voter to vote in accordance with his freewill, not to be prevented by any other person or group of persons from exercising this freedom and an impartial electoral umpire who provides electoral services in accordance with the rules.  Thus, while the constitution prohibits the attempt or actual steps to take over government in an illegal and unconstitutional manner, the Electoral Act defines the steps and procedures that will be taken by individuals, voters, groups of persons, political parties, candidates, etc., that  seek power and to become legal and legitimate functionaries of the government of Nigeria or any part thereof.

This is about free, credible, accountable and transparent elections. The method of violating the constitutional provision contemplated here is about candidate(s) or political parties that subvert the electoral process through vote rigging, violence, vote suppression, ballot box snatching, etc. It is about the electoral umpire who promises the best election and asks for public money from the legislature, which generously provides for all its needs for a free and fair election, only for the umpire to disappoint at the last minute and renege on its statutory mandate. It is about security agencies who watch while thugs and violent persons stop registered voters from exercising their franchise.

A candidate who emerged as a president, governor or lawmaker from a deeply flawed electoral process in which he actively planned, conspired, recruited thugs, bribed electoral and security officials cannot in any good sense or interpretation of the constitution be said to have taken control of government or assumed power in accordance with the provision of the Constitution. The person is an outlaw just like the coup plotter, terrorist or insurgent. Such a person is a first-degree felon.

The justice system has made several mistakes in relation to preventing and discouraging the practice of subverting the electoral process as a means of taking control of the government of Nigeria in a way and manner not contemplated by the constitution. Even where electoral fraud has been proven against candidates and political parties, the courts simply take away the mandate and there are no prosecutions of the big offenders who seek to benefit from the subversion of the will of the people. Our jurisprudence needs to grow to get to the point that a principal beneficiary who is shown to have instigated the subversion of the will of the people not only gets the mandate retrieved but also prosecuted and sent to a long jail term and debarred from further participation in politics.

Therefore, we urge the secret police and other security agencies to strengthen democracy by developing the political will to do what is right, using the mountain of evidence at their disposal to help the courts to ensure that the votes count and persons and groups who subvert the electoral system are sent to jail.