The pres­i­dent’s cer­tifi­cate and the pre­sump­tion of reg­u­lar­ity

Ro­timi Fa­wole

The Guardian (Nigeria) - - NEWS - @rfa­wole

O- “all things are pre­sumed to have been done rightly.” This maxim is a fancy way of ex­press­ing the le­gal prin­ci­ple known as the pre­sump­tion of reg­u­lar­ity.

The mean­ing of the maxim is where an of­fi­cial act of the ex­ec­u­tive branch of gov­ern­ment (in­clud­ing its agen­cies) is car­ried out, it will be pre­sumed in the ab­sence of ev­i­dence to the con­trary that the act complied with any nec­es­sary for­mal­i­ties and is there­fore valid. In Eng­land and Wales, the prin­ci­ple also ex­tends to busi­ness trans­ac­tions, pre­sum­ing in the ab­sence of the con­trary that trans­ac­tions have been car­ried out in the or­der that they are re­quired to be car­ried out. How­ever, of­fi­cial acts are the fo­cus of this piece. By ex­ten­sion, peo­ple are en­ti­tled to pro­ceed on the as­sump­tion of the va­lid­ity such an act un­til the courts find oth­er­wise. In the case of Pres­i­dent Buhari and the re­cur­ring doubt over his el­i­gi­bil­ity for of­fice, he ar­guably has this pre­sump­tion in his favour. In­deed, the army’s 2015 state­ment (which ei­ther cleared or mud­died the wa­ters de­pend­ing on what side of the po­lit­i­cal di­vide one was on), ap­pears to ar­rive at its con­clu­sion based on the prin­ci­ple of reg­u­lar­ity.

In re­sponse to the re­tired gen­eral’s state­ment in his af­fi­davit to INEC, sug­gest­ing that the orig­i­nal copies of his cer­tifi­cates were with the army, the army clar­i­fied that he ap­plied to join the army be­fore com­plet­ing sec­ondary school but the record is­sued at the point of his com­mis­sion shows school cer­tifi­cate re­sults. The pre­sump­tion is there­fore that the Pres­i­dent has sat­is­fied the min­i­mum ed­u­ca­tional re­quire­ments for of­fice.

Of course, that such ex­cep­tions are be­ing made for Muham­madu Buhari or per­haps rather, that such pre­sump­tions have been made in his favour, must be frus­trat­ing for any of the other tens of mil­lions of Nige­ri­ans who have ever had to deal with the civil ser­vice or any gov­ern­ment agency. The ev­i­dence would largely sug­gest that this le­gal pre­sump­tion is at best only theo- ret­i­cal in Nige­ria.

A six-stage process re­quires an ap­pli­cant to re-present the cre­den­tials for each pre­ced­ing stage each step of the way. Speak­ing from per­sonal ex­pe­ri­ence, dur­ing my year of Na­tional Ser­vice, at ev­ery month’s clear­ance, I had to demon­strate hav­ing ob­tained clear­ance for all the pre­vi­ous months to the com­mis­sion, in spite of them be­ing the cus­to­dian of all the records.

INEC was pleased to ac­cept then-can­di­date Buhari’s el­i­gi­bil­ity in 2015. With the cur­rent po­si­tion of the law, by virtue of re­cent ju­di­cial pro­nounce­ments, be­ing that the re­quire­ment is only for the can­di­date to be ed­u­cated up to that level and not that the cer­tifi­cate is re­quired to show any sort of pro­fi­ciency, then again, by virtue of the var­i­ous cour­ses that of­fi­cers are typ­i­cally re­quired to un­dergo to progress through the ranks, the Pres­i­dent’s cer­tifi­cate brouhaha is prob­a­bly a non-is­sue.

To be fair to INEC, the Con­sti­tu­tion pro­vides a def­i­ni­tion for “School Cer­tifi­cate level or its equiv­a­lent”. It means - (a) a Sec­ondary School Cer­tifi­cate or its equiv­a­lent, or Grade II Teacher’s Cer­tifi­cate, the City and Guilds Cer­tifi­cate; or (b) ed­u­ca­tion up to Sec­ondary School Cer­tifi­cate level; or (c) Pri­mary Six School Leav­ing Cer­tifi­cate or its equiv­a­lent and - (i) ser­vice in the pub­lic or pri­vate sec­tor in the Fed­er­a­tion in any ca­pac­ity ac­cept­able to INEC for a min­i­mum of ten years, and (ii) at­ten­dance at cour­ses and train­ing in such in­sti­tu­tions as may be ac­cept­able to INEC for pe­ri­ods to­talling up to a min­i­mum of one year, and (iii) the abil­ity to read, write, un­der­stand and com­mu­ni­cate in the English lan­guage to the sat­is­fac­tion of INEC, and (d) any other qual­i­fi­ca­tion ac­cept­able by INEC.

It is not the high­est of stan­dards and by one or a mix of any of these cri­te­ria, the Pres­i­dent is un­likely to be held inel­i­gi­ble on ac­count of ed­u­ca­tion. How­ever, INEC must be clear about the prece­dent it is set­ting. The con­sti­tu­tional re­quire­ment is def­i­nitely for a pos­i­tive demon­stra­tion of el­i­gi­bil­ity by the can­di­date. The most co­gent sug­ges­tion is clearly a pa­per cer­tifi­cate of some sort and/or writ­ten cer­ti­fi­ca­tion of work ex­pe­ri­ence by an em­ployer.

Ac­cep­tance of a mere af­fi­davit invit­ing INEC to es­tab­lish el­i­gi­bil­ity by de­duc­tive and in­duc­tive rea­son­ing to­day opens the door for oth­ers to do the same in the fu­ture. Of course, we could again re­vert to type and de­liver se­lec­tive, ar­bi­trary jus­tice. If we are to be the pro­gres­sive na­tion we hope to imag­ine we are, INEC should is­sue guid­ance on how it is to ex­er­cise its dis­cre­tion on this is­sue go­ing for­ward.

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