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By law, what are the conditions precedent for an interim government?

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The reactions by political parties and other stakeholders following the allegation of a plot for an interim government have caused a stir in Nigeria’s political terrain.

The State Security Services (SSS) otherwise known as the Department of State Security (DSS) announced that it had uncovered a plot for an interim government in Nigeria by “some key players”.

In the statement made by the DSS, the plot is considered “not only an aberration but a mischievous way to set aside the constitution and undermine civil rule as well as plunge the country into an avoidable crisis”.

Three weeks before the presidential elections held on February 25, 2023, Bola Ahmed Tinubu, presidential candidate of the All Progressives Congress (APC) while in Ekiti state said that there is a hidden plan to subvert the 2023 general elections in order for an interim government to be imposed on Nigeria.

Tinubu did not provide any specific details or mention any names regarding the scheme’s implementation.

After the statement made by the DSS, the Labour Party dissociated itself from the plot for an interim government. The party stated that it was not part of the insurrection and described the plot as a conspiracy against the state.

“As a party, we have submitted ourselves to pursuing the course of justice through constitutional means”, Yunusa Tanko, spokesperson of the Labour Party noted.

In response to the claim of the DSS, that plot for an interim government included “obtaining frivolous court injunctions, he stated that “we are certain that Nigerians who want to take back their country will not be intimidated or blackmailed into abandoning a legitimate course”.

According to the Peoples Democratic Party, the alleged plot for an interim government is a covert plan by the All Progressives Congress and the DSS to undermine the Presidential Election Petitions Tribunal.

The party restated its opposition to an interim government and noted that it was only a plot by the ruling party as the “idea of an interim government is the brainchild of the APC”- a statement by Debo Ologunagba, National Publicity Secretary of the PDP.

According to Dayo Adeyeye, the National Coordinator of South West Agenda for Asiwaju (SWAGA), Nigerians who love democracy will resist an interim government ahead of May 29 inauguration. An ally of the APC presidential candidate – Bola Tinubu, Adeyeye noted that citizens should disregard the noise of people trying to create unrest.

In a press statement released on April 10, 2023, Edwin Clark, elder statesman and leader of the Southern and Middle Belt Leaders Forum (SMBLF), said that more than any person, renowned lawyer, Afe Babalola, Senior Advocate of Nigeria, should be questioned on issues around the call for an interim government and not the Labour Party’s Peter Obi.

Afe Babalola had in 2022, advocated for the postponement of the 2023 general elections and the establishment of an interim government to restructure Nigeria and create a new constitution for Nigeria.

According to Clark, the statement was a necessary response to the media briefing by Lai Mohammed, Minister of Information and Culture, who accused some opposition political parties especially the candidate of the presidential candidate of the Labour Party, Peter Obi and his running mate Yusuf Datti Baba-Ahmed of promoting insurrection in Nigeria by inciting violence over the outcome of the February 25 presidential elections.

This was especially with regard to the statement made by Yusuf Datti in an interview that it will be unconstitutional to swear in an elected president on May 29, 2023, because of election irregularities.

In a previous statement debunking the claim of a plot for an interim government, Lai Mohammed had stated that the claim that a presidential cabal was working towards an interim national government was false.

This statement was made before the 2023 general elections were held. He also stated that “as a matter of fact, President Muhammadu Buhari has already constituted a transition committee”.

Clark in his statement called for the prosecution of Lai Mohammed because his information was not based on any credible intelligence report but on propaganda and falsity.

Reacting to the allegation by Lai Mohammed, Obi says that such an accusation was totally fictitious and malicious. He maintained that “I am on record as always advocating for peace and issue-based campaigns and never campaigned based on ethnicity or religion. I am committed to due process, and presently seeking redress in court.”

The notification about the plot for an interim government came when the DSS “identified some key players in the plot for the interim government in Nigeria”. But this will not be the first time that there has been a notification of such a plot for an interim government.

Just before the general elections were held in 2019, the Peoples Democratic Party (PDP) alleged that the All Progressives Congress (APC) had a “plan B” – an idea of an interim being mooted by Lai Mohammed, which is to cause violence, derail the electoral process and blame it on the opposition”. The PDP insisted then that the party and indeed Nigerians will not accept an interim government.

that there is no room for an interim government in the Constitution except if the nation is physically engaged in a war and the incumbent president considers it impracticable to hold elections.

According to Kola Ologbondiyan, National Publicity Secretary of PDP at the time, “suggesting an interim government under any pretext, context or contemplation can only come from desperate and unpatriotic minds”. He also stated the APC were desperate ahead of the 2019 general elections “leading to their resort to threats, intimidation and clamp down on dissenting voices and assault on institutions of democracy”.

Today, the tides have turned – Lai Mohammed was accused of inciting violence for an interim government in 2019 but in 2023 he became the accuser.

The Constitution and Interim Government
The Nigerian Constitution provides for the powers and duration of office for every arm of government. It also provides for the composition of the arms of government and how officers in any arm of government should emerge. Section 5 (1) of the Constitution provides that the executive powers shall be vested in the president.

Read also: What Nigeria can learn from the European Digital Services Act 2022

Section 134 of the Constitution states the requirement for which a person can be duly elected as president in whom the executive powers will be vested.

Therefore, this is how a government should emerge – that a person should be duly elected as president. The constitutional provisions in section 135 are that “a person shall hold the office of president until when his successor-in-office takes the oath of that office”.

Also, the president in whom executive powers of the federation are vested “shall vacate his office at the expiration of a period of four years commencing from the date he took the oath of allegiance except he is elected for a second term of four years.”

However, section 135 (3) of the 1999 constitution is instructive. It provides that “if the federation is at war in which the territory of Nigeria is physically involved and the president considers that it is not practicable to hold elections, the national assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time, but no such extension shall exceed a period of six months at any one time”.

A combined reading of the provisions highlighted above shows that there is no room for an interim or temporary government in the Constitution except if the nation is at war and the incumbent president considers it impracticable to hold elections.

And upon making this deduction, an act of the National Assembly is required to extend the term of the incumbent for 6 months at a time.

According to Adedeji Adeyemi, a dispute resolution lawyer, “Section 135 (3) can only come to play if Nigeria is physically involved in a war, so a plot to cause political instability by these persons is not only unconstitutional but will only be a waste of time. A president-elect has emerged and it is only the court that can say otherwise”.

With fingers pointed in all places, it is unclear which political faction stands to benefit the most from the accusations being lobbied or even the interim government in itself.

Olisa Agabakoba, SAN noted that an interim government is unconstitutional and suggested that “the gravest possible consequences must be applied to all who are associated with this treasonable intent”.

“If the presidential candidates have accepted the democratic process by lodging petitions before the courts, then it is very difficult to understand upon what basis anyone considers that an interim government is a viable and legal alternative.

We must all reject this nonsense and respect our constitution, which has no provision for interim arrangements”, Agbakoba, SAN stated.

However, according to another lawyer who pleaded anonymity, “I understand that the DSS is ensuring that it carries out its functions. The agency claims to be investigating the planners of a plot to “obtain frivolous court injunctions to forestall the inauguration.” But seeking a court order is not a terrorist act.

The DSS should properly identify those it is monitoring – those who plan to cause instability or persons who are bringing actions before the court. It is for the court to decide what is frivolous or not”.
“Is this revelation a smoke screen to discourage petitions in court by aggrieved persons? The DSS must let us know”, he stated.

The concept of an interim government was introduced into Nigeria’s political and governance framework by the military regime led by Ibrahim Babangida.

This came after the general elections of June 1993 were marred by irregularities, prompting Babangida to “step aside” and hand over power to an interim government headed by Ernest Shonekan.

The interim government lasted for less than 90 days before it was dissolved by Sani Abacha. At the time, it was to quell the demonstrations and uprisings.
Generally, stakeholders in the legal sector are in accord that an interim government akin to that introduced after the June 1993 elections is not recognised in the law, and to go against the provisions of the constitution will have dire consequences, including political, economic and social instability.