Short Takes, A Long Way…

By Onikepo Braithwaite
Email: onikepo.braithwaite@thisdaylive.com Twitter: @TheAdvocatesTD

Short Takes, A Long Way…

We express our heartfelt condolences to Her Majesty, Queen Elizabeth II of the United Kingdom, on the death of her beloved Husband of almost 74 years, Philip Mountbatten, Prince Philip of the United Kingdom, the Duke of Edinburgh (June 10, 1921 – April 9, 2021). May God comfort Her Majesty, her family and the people of the United Kingdom for this great loss. Amen.

Many of the solutions to the problems we are facing in Nigeria are crystal clear, but it seems that there is a strange phenomenon in the air, one that became apparent soon after this administration assumed office in 2015 – one in which, if even you allude to the fact that Nigeria is facing serious problems, you are immediately abused, denounced and labelled by Government Spokespersons as being Public Enemy No. 1 who doesn’t mean well for the country (like Bishop Matthew Kukah)(let alone anyone attempting to proffer workable solutions to those problems).

Owerri Prison Break

In the last six months, we have observed and experienced a new addition to the already high and unprecedented level of insecurity in the country – destruction of Police Stations/Facilities and Prison Break! (See Edo, Imo and Bauchi States’ recent prison incidents). The Owerri Prison break of last week is particularly scary, as it again, puts the lives and property of citizens in jeopardy, with 1844 dangerous criminals who should be in the custody of the Correctional Service, on the loose and unaccounted for. The DSS and the Police are busy buck-passing, with the allegation that the Governor and Police were forewarned about an impending attack by the DSS, but they paid no mind to the warning, and took no proactive precautions to avert the attack, despite their foreknowledge. Yet, if anyone makes mention of this, I wouldn’t be surprised if, in his usual blasé manner, Mr Femi Adesina won’t chastise the person for being a rabble rouser and nay sayer – concentrating on what he would probably term as a ‘little negativity’, instead of trumpeting this administration’s achievements! Meanwhile, because of our sloppy law enforcement and porous land borders, half of those escaped convicts may already be in Lagos and Dahomey by now!

Origin of Nigeria’s Problems: Blame Game/Buck Passing

Where did Nigeria’s difficulties originate from? From the British Colonialists, with the amalgamation of Southern and Northern Nigeria in 1914, or is it the successive military regimes that are the cause of our problems? Is it the faulty 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution) that the military foisted on us, that is responsible for our misfortunes? Did the Military compound our woes by effectively perpetuating themselves in governance, dropping the military uniform when it became clear that military dictatorship was no longer in fashion, reinventing themselves by cleverly adorning the toga of democracy, when in fact, the ‘command and obey’ culture is too deeply ingrained in them to make way for true democracy? Can we deny the fact that some of these autocratic traits were seen during President Obasanjo’s time, though we seem to see them more often these days? Lest we forget, could it be the NPN and UPN Politicians who did their bit to popularise corruption, that are the cause of our problems? Or is it the fault of the PDP who held sway for 16 years, with their ‘fantastic’ corruption and kleptomania? Or the APC/this administration who are to blame for our woes? Can we truly separate APC from PDP, when at least half of APC comprises of ex-PDP members who jumped ship when PDP was sinking in 2014? To that extent, if PDP is responsible for our misfortunes, can APC realistically be absolved of blame, when the two parties are part and parcel of each other – six and half a dozen?!

I think the answer to these questions, lies in a combination of all the aforementioned factors. All our successive Governments, are somehow culpable for the failure and anarchy Nigeria is experiencing today, more so this administration, because it is presently at the helm of affairs, and it came in on the mantra of change for the better, which we have not felt in many areas, at least not as far as security is concerned.

My point? Though we are well aware that this administration has a penchant for passing the buck to the PDP, we could play this blame game/buck passing from now till Armageddon, and it will take us nowhere. Government needs to spend its time gainfully – after all, it is only a bad workman that blames his tools. I’m sure I speak for majority of Nigerians, when I say that we are tired of listening to Government equivocating, shuffling around, and side stepping crucial issues. We want Government to start taking the right steps, so that we the people can lend them more support. As Lawyers, in our own constituency, the right step to take, is that Government should begin to show respect for the rule of law; if Government does so, half of the complaints that the people have, will become obsolete.

Successive Governments and their Disregard for the Rule of Law

The fact that this administration flouts the provisions of the Constitution and our laws, ignoring most of the dictates of Chapter II of our grundnorm with gusto and aplomb, makes a bad situation worse, because it is not just hypocritical, but an uphill task for a Government who does not particularly obey laws, to seek obedience to laws from its citizenry. I must say that this trait is not exclusive to this administration, as previous administrations also flagrantly displayed varying degrees of contempt for the rule of law, thereby breeding a fertile ground for general lawlessness. Consequently, this has been one of the main ingredients in the bitter recipe for the preparation of the dish of anarchy, which we now see playing out (see Section 1(1) of the Constitution on the bindingness of the Constitution on all persons and authorities in Nigeria, including Government).

Appointment of the Inspector General of Police

Let’s start with following the rule of law, in the matter of the appointment of the Inspector General of Police (IG). A few weeks ago, I wrote an editorial titled “President Buhari and Unlawful Appointments“, in which I questioned the fact that there may be a loophole with regard to the IG his tenure and retirement. But, with the appointment of 58 year old Acting IG, Usman Alkali Baba, I went back to peruse the relevant provisions of the law. I discovered that with a community reading of Sections 7(6) and 18(8) of the Police Act 2020 (PA), that is, that the tenure of an IG shall be four years, and the retirement of a Police Officer is at 35 years of service or age 60, whichever comes first, it is obvious that apart from the fact that a candidate for IG must not be less than the rank of an AIG (Section 7(2) of the PA), he or she must have a clear four years left to serve in the Police Force to be eligible for nomination. Relying on Section 7(6) to keep an IG in office beyond his or her ‘best before’ expiry date, makes nonsense of Section 18(8) of the PA and the Public Service Rules (Rule No. 020810 to be precise) – which could not be the intendment of the aforementioned Section 7(6) – as it leads to absurdity in this particular instance of Acting IG Baba who, either way, has a little less than two years to retirement. He was born on March 1, 1963, and enlisted on 15/3/88. See the case of A.S.U.U. v Federal University of Technology, Akure (Suit No. FHC/AK/CS/69/2011); See also the Literal and Golden Rules of Interpretation, particularly the Golden Rule ‘which tries to avoid anomalous and absurd consequences arising from literal interpretation’.

We are also not aware if President Buhari took the advice of the Nigeria Police Council (NPC) before nominating Acting IG Baba, as mandated by Sections 215(1)(a) & 216(2) of the Constitution, unless he did so before he travelled to London or had a virtual meeting with the Council while in London. In appointing IG Baba, the President has flouted the PA which he himself signed into law in September 2020, by nominating an unqualified candidate! Let us wait and see what the Senate does – we know that so far, the Senate has been little more than a rubber-stamp for the Executive, though this issue involves a law which this NASS themselves, enacted last year. Is NASS going to be the first to flout it’s own law, by confirming an IG whose service in the Nigeria Police Force will expire on March 1, 2023, two years before the end of the four year tenure?!

Supreme Court Alteration Bill 2020

The other day, I came across the Supreme Court Alteration Bill 2020 (SCAB). I admit that I haven’t read it in its entirety, but a cursory look at it shows that the SCAB seeks to alter the Constitution, to change the judicature of Nigeria as we know it. For starters, it seeks to replace parts of Sections 6(5) and 237 of the Constitution, by introducing a higher level Federal Court of Appeal (FCA), then the lower States’ Court of Appeal (SCA) and the Court of Appeal of the FCT (ACA). Appeals shall lie to the FCA from the SCA and ACA, the Federal High Court and National Industrial Court (proposed new Section 240 of the Constitution), thereby reducing the State High Court which was on par with the Federal High Court and National Industrial Court, more or less to the level of a Magistrates’ Court, since appeals from the State High Courts will now lie to their respective SCAs, through which they go to the FCA!

This new scenario simply centralises the most important parts of the judicial process, on the Federal side, when Nigerians are busy calling for restructuring of the country and devolution of powers. Is it not bizarre that law makers are not feeling the pulse of the people they represent? Does it not follow that Judges from the Federal High Court, may be more favoured candidates for the FCA, and subsequently, the Supreme Court? Maybe a few from the SCAs, while those of the State High Courts will probably not feature, the same way that these days, even the best of the Magistrates do not progress beyond the Magistracy. The only positive aspect about the SCAB  for some so far, at least for the proponents that Senior Advocates should be appointed to the appellate courts, is their inclusion and that of Professors of Law into the Judiciary, even at the Supreme Court level, wherein the SCAB provides that out of the 21 JSCs, two must be Senior Advocates nominated by the NBA, and the third, a Professor of Law well versed in Constitutional Law (proposed Section 230(2)(b) of the Constitution).

Questions

My learned colleagues, I urge you to avail yourselves with a copy of SCAB forthwith and study it.  I would appreciate your comments on it, as soon as possible. Should the SCAB be allowed to see the light of day, or should it be shut down? Does the structure of the Judiciary have to change so radically, to accommodate the changes that the SCAB proposes? Should the State High Court Judges be reduced to Magistrates, and in turn, Magistrates to clerks? Can’t the structure of the Judiciary remain the same, but made more efficient by constituting the Supreme Court to its maximum of 21 JSCs, restricting the type of appeals that can lie to the Supreme Court, by terminating them at the Court of Appeal? Can’t more JCAs be appointed, so that the number of Panels constituted may be increased, and obviously, more High Court Judges recruited as well? Is the SCAB a clever plot by some, window dressed as a way to decongest the courts and make the Judiciary function more efficiently, when in fact, it is a grand plan to ensure that the Executive maintains control over the Judiciary, and the Judiciary is never truly independent?

Conclusion

When a society is governed without much regard for the rule of law, it connotes arbitrariness and self interest of a small group of decision makers. One of Acting IG Baba’s first public statements  was that he will fight bandits, kidnappers and ‘secessionists’, giving the distinct impression that he was chosen to be the IG not because of his qualification for the position, but more than anything else, his willingness to play out Government’s script. Though the right to self determination is enshrined in the Charter of the UN (as long as it is non-violent, I would imagine), our Government has a strong aversion to any talk of secession, and this position has been echoed by Mr Baba. Instead, I would have expected Mr Baba to say, he would fight insurgents!

I have identified a few scenarios, in which Government has been given the golden opportunity to show that it can adjust its standpoint on respect for the rule of law. Let’s see whether it will take advantage of these opportunities.