The Department of State Services (DSS) said recently that it uncovered a plot for an interim government in Nigeria by “some key players”. Many Nigerians have expressed concern about the legal implications of this. They have also queried the intentions of the DSS and the steps being taken by the agency in the aftermath of this revelation. Although the DSS said it would continue its monitoring, there is concern as to whether the statement by the country’s secret police is only a smokescreen to discourage election petitions.
An interim government is a temporary government usually introduced during periods of instability. The first-ever interim government in Nigeria was instituted by Ibrahim Babangida in 1993. It was a move intended to quell political instability caused by the annulment of the 1993 general elections.
According to the statement 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”.
Several legal experts have spoken on the legal implications of an interim government and the responsibilities of the DSS.
Is the interim government even constitutional?
According to Adedeji Adeyemi, a Lagos-based lawyer, the 1999 Constitution of Nigeria clearly provides for the process for which a government can emerge as well as the tenure of any government.
He said: “According to the Constitution, the President in whom executive powers of the federation is vested in 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.
“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. This is the type of government we know and this is how one should emerge – that a person should be duly elected.”
However, section 135 (3) of the 1999 Constitution must be noted. 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”.
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“Section 135 (3) can only come into 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,” Adeyemi said.
“Even where a president-elect has been sworn in, it guarantees nothing as the court may rule that a person has not been duly elected. Being sworn in does not mean that the mandate is guaranteed; so everyone must wait for the courts to decide,” he added.
Olisa Agabakoba, a senior advocate of Nigeria and former president of the Nigerian Bar Association, described an interim government as unconstitutional, saying: “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 on 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,” he said.
Next step for DSS
Thus far, the DSS has not issued any further statements but it said in its previous statement that “while its monitoring continues, the DSS will not hesitate to take decisive and necessary legal steps against these misguided elements to frustrate their obnoxious intentions”.
The DSS or State Security Service is established by the National Security Agencies Act as one of Nigeria’s intelligence agencies with the mandate to defend the Federal Republic of Nigeria against domestic threats, to uphold and enforce the criminal laws of Nigeria. It has the functions of prevention and detection of any crime against the internal security of Nigeria; protection and preservation of all non-military classified matters concerning the internal security of Nigeria; prevention, detection and investigation of threats of espionage, subversion, sabotage, terrorism, separatist agitations, inter-group conflicts, economic crimes of national security dimension and threats to law and order, amongst others
“The duty of the DSS is more than making an announcement, it must ensure that it upholds its mandate to defend the internal security of Nigeria,” Adeyemi said.
A lawyer who asked not to be identified said: “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 smokescreen to discourage petitions in court by aggrieved persons? The DSS must let us know.”
Agbakoba said Nigerians must turn to the courts to render a decision on the petitions before them.”The judicial process will certainly carry a huge responsibility in the process of democratic consolidation. The judicial process will ultimately render a decision,” he said.
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