Democracy, Trust and Mistrust
The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com
The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Citizens’ Trust: A Pillar of Democracy
Last week, two events that occurred caught my attention and made me wonder about trust and the crucial role that it plays in a democracy – the purported suspension of the 18 Edo State Local Government Chairmen and their Deputies by the Edo State House of Assembly (ESHA) based on a petition made by the Edo State Governor, Senator Monday Okpebholo, and the social media story of the sentencing to death of two people by the Osun State High Court for stealing a chicken and eggs,
Trust, in this context, which primarily means a positive perception of the people in the arms of government/governance/the system, is one of the pillars that holds up democracy, and we are all aware that, when even one of the pillars that holds up a building is shaky, the building becomes somewhat unsteady and faces the risk of collapse. The expectation of citizens from their government, also forms part of this trust – the more their expectations are not met, the less trust the citizens have. Over the 25 years of Nigeria’s Fourth Republic, trust has been eroded to an all time low.
Many Nigerians have lost trust in government and its institutions, including the Judiciary, and the truth is that, the behaviour of some government/public officials/judicial officers in these institutions does not help matters at all. If anything, their behaviour inflames and nourishes these feelings of distrust.
It is therefore, time for all arms of government to stop burying their heads in the sand, and start trying to regain the trust of the people. To reinforce this structure/building called democracy, apart from credible elections, there must be transparency, accountability and competency in governance; equity and equality in the treatment of all Nigerians; respect for the rule of law; zero tolerance for corruption, with the naming, shaming and punishment of culprits.
The Edo State LG Saga
Most people believe that the Local Government Councils (LGC) are glorified departments/appendages of the State Governments, when they should actually be fully independent – and the distrust of the people has arisen from the fact that, over the years, Governors have so manipulated the system to make the LGCs a branch of the State Government, particularly because Section 198 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), gives Governors the right to appoint the members of their State Independent Electoral Commission (SIEC) that conduct the elections into the LGCs. So, even though Section 7(1) of the Constitution provides for democratically elected LGCs, because of the power that the Governor has over his SIEC as he’s their appointor, invariably, ‘elected’ officials of the LGCs are usually/mostly the Governor’s appointees too, and every incoming Governor looks for a way to throw out the old LGC officials to install their own.
With this cosy arrangement, the Governor controls the two tiers of executive governance in the State, and also dominates the State House of Assembly. The lack of financial independence of the Judiciary also gives the Governor an inroad into at least, the State Judiciary, sometimes resulting in the Governor being the alpha and omega of his State! This is more than enough reason for the people to distrust the system, seeing it as an indirect form of dictatorship on the part of the Governor, along with the fact that, in an autocratic style of governance, rules/laws are often broken by the dictator.
It is this alpha and omegaship, that was displayed by the Edo Governor, allowing him to imagine that he can demand the ‘financial statements’ of the 18 autonomous/independent LGCs in his State, give them a 48 hour deadline to submit same, and then term their refusal to comply with his demand as ‘insubordination’ and ‘gross misconduct’ in his petition letter of 16/12/24 to the Speaker of the ESHA. Senator Okpebholo then invoked Section 10(1) of the Edo State Local Government Law 2000 (as amended in 2022)(ELGL) against the Chairmen and Deputies, a vague and mischievous provision, the interpretation of which appears to be that, though the tenure of an LGC is three years, upon the request of the Governor to the ESHA, such tenure can either be truncated or extended!
This shows that the Edo Governor didn’t get good legal advice, on the fact that the law doesn’t permit the dissolution of elected LGCs (or tenure extension) – see APC & Ors v Enugu SIEC & Ors (2021) LPELR-55337(SC) per John Inyang Okoro, JSC; and the celebrated Supreme Court decision in AGF v AG Abia & 35 Ors (2024) LPELR-62576(SC) per Emmanuel Akomaye Agim, JSC. Nor is Senator Okpebholo constitutionally empowered to demand for the financial statements of the LGCs, and accordingly, the LGC Chairmen’s failure to comply with such demand cannot constitute any act of misconduct or non-discharge of their duties under Section 20(b) of the ELGL, which appears to be the provision used by ESHA to suspend these LGC Chairmen and Deputies for two months. AGF v AG Abia & 35 Ors (Supra) affirmed the independence and autonomy of the LGCs, declaring that the State or Governor has no power, to inter alia, control or manage LGC funds from the Federation Account. The purport of this most recent decision, is to remove the LGCs from the apron strings of the Governors.
This may have been a perfect case for the judicial review of the Governor’s petition, and the subsequent actions of ESHA. Even though High Court Civil Procedure Rules, including that of Edo State, provide for judicial review, this process is hardly used in Nigeria – a judicial review of Government’s executive, administrative or even legislative procedure, to invalidate actions or laws. It is a way in which the Judiciary can check and balance the Executive or Legislature, to ensure that they do not exceed their authority.
The Edo Governor’s action, making his petition pursuant to Section 10(1) of the ELGL that has been shot down in a plethora of authorities such as APC & Ors v Enugu SIEC & Ors (Supra) & AGF v AG Abia & 35 Ors (Supra), is reviewable. Similarly, the classification of the refusal of the LGCs to comply with the Governor’s unlawful demand as gross misconduct, and their suspension by ESHA which stemmed from that, are also reviewable actions. In AGF v AG Abia & 35 Ors (Supra), the Apex Court held the interference by the Governor or State Government with the independent functioning of LGCs, to be unconstitutional and illegal (the LGC isn’t a subset of the State Government). It is highly unlikely that the acts of the Edo Governor and ESHA, can pass the test of legality.
The Chicken Story
It turns out that some salient facts of the aforementioned Chicken Story, that is, the conviction of Segun Olowookere and Morakinyo Sunday, may have been left out of the social media account that made the rounds; the official story is that, the Convicts were alleged to be members of an armed robbery gang that, in this particular case, robbed a Policeman, Mr Tope Balogun, with a cutlass and dane gun, stole valuables including livestock during the robbery operation in 2010, which they were subsequently convicted for and sentenced to death in 2014.
Distrust made the allegedly inaccurate social media account of the story, believable to the public. Firstly, the trial Judge in that case, Falola J. was said to have been recommended for compulsory retirement by the NJC in December, 2023 for misconduct in handling a case, meaning that he could also have misconducted himself in the Chicken case. Secondly, some believe that because Mr Balogun is a Policeman, the Convicts may have been framed by the Police. In short, on one hand, the misconduct of this particular Judge in another case and the much maligned Judiciary, and on the other, the infamous misbehaviour of the Police easily influenced the people to believe that a court could actually sentence someone to death for petty theft!
Section 1(1), (2)(a),(b) & (3) of the Robbery and Firearms (Special Provisions) Act 1984 (RFA) provides for a punishment of 21 years imprisonment for a person who is convicted for the offence of robbery, and death by hanging or firing squad for any offender who robs, armed with firearms or any offensive weapon, or is in the company of anyone so armed, or at or immediately before or after the robbery, wounds or uses any personal violence on any person. The Defendants in the Chicken case were convicted of armed robbery, not petty theft of a chicken.
The Convicts failed or neglected to exercise their automatic right of appeal up to the Supreme Court, a right that is exercised when the death sentence is pronounced. See Section 233(2)(d) of the Constitution, which provides that when the Court of Appeal pronounces or affirms the death sentence of a lower court, an appeal lies as of right to the Supreme Court. Also see Odediran v State (2006) LPELR-2203 (SC) per Ikechi Francis Ogbuagu, JSC, where the Supreme Court held that an accused person convicted of an offence carrying the death sentence has an automatic constitutional right of appeal to the Apex Court. I do not know why this right wasn’t exercised by the Convicts, but, even if it was, and the judgement of Falola J. was affirmed all the way to the Supreme Court, I’m almost certain that this alternative representation of the facts of the case would still have been disseminated.
The other day, I was in court when the trial Judge sentenced two men to death by hanging for armed robbery. His Lordship stated that Section 1(2) & (3) of the RFA prevented him from showing mercy in sentencing, since a mandatory death sentence is prescribed for the offence. His Lordship stated in his judgement, that the prerogative of mercy could still be available for those convicted, particularly when in the allocutus of one of them, it was shown that he had sought to turn his life around in prison, learning a trade and becoming a Pastor.
If in fact Segun Olowookere was 17 at the time of the commission of the offence, it raises several issues – because by virtue of Section 221(1)(a) & (c) of the Child’s Rights Act 2003 (CRA) no child shall be ordered to be imprisoned or subjected to the death penalty, nor shall the death penalty be recorded against a child – a child less than 18 -Section 21 of the CRA; a child can only be subject to the child justice system (Section 204 of the CRA). Also see Section 405 of the Administration of Criminal Justice Act 2015 (ACJA), the court cannot pronounce the sentence of death on a person below the age of 18 found guilty of committing a capital offence, but life imprisonment or such other term as the court deems fit. In fact, Section 302(3) of the Administration of Criminal Justice Law of Lagos State 2015 (ACJL) provides that the court shall order such a minor convict in a capital offence, to be detained at the discretion of the Governor (also see Section 330 of the ACJL). However, ACJA 2015 was enacted after judgement was delivered in the Chicken case in 2014, though some of the provisions of ACJA, such as the imposition of life imprisonment on a minor, do not quite align with the provisions of the CRA.
Sections 175 and 212 of the Constitution give the President and Governors respectively, a prerogative of mercy to any convict, to be exercised in various ways, freely or subject to conditions, on the punishment that has been imposed on such convict. A pardon can be granted, or a less severe form of punishment can also be substituted. So, a death sentence can be commuted to life imprisonment or less, possibly depending on the facts of the case. Such prerogative exercised by the President should be under advisement from the Council of State, and in the case of the Governor, the Advisory Council of the State.
But, the question is, with the provisions of the CRA, if the Child’s Rights Law of Osun State which was passed in 2007 before the offence of the Chicken case was allegedly committed in 2010, then issues even as to the proceedings in the case with regard to Segun Olowookere could be raised, if he was indeed a minor at the relevant time, and the CRL procedure for child offenders wasn’t followed.
It is not only allegations of corruption that make people distrust judicial officers, incompetence is another cause. And, while the Governor of Osun State isn’t in a position to review the judgement of the Osun State High Court, he can certainly instruct the State Attorney-General to investigate, if in fact one of the Convicts was a minor, if the process used to prosecute him was lawful, as this could be a mitigating factor that can be used to exercise the prerogative of mercy in this case, or even give him a full pardon since he has already been in prison for over 10 years.
Conclusion
As the Committee to update the Laws of the Federation 2004 to date has started its work, it is important that a recommendation is made to the National Assembly, that the process of the prosecution of child offenders should be clearly and better provided for in ACJA and the CRA, and the process should be unified under both laws. One law cannot provide for life imprisonment for capital offences, while the other provides that a minor cannot be imprisoned, but detained on the order of the Governor in an approved Facility. It is also time for some of the Supreme Court decisions concerning the LGCs, to be codified into Sections 7 and 162 of the Constitution.Beyond that, the three arms of government have to take the building of trust among the citizenry more seriously, as their trust in government has reduced drastically, at all levels, be it in institutions, or in policies or in Government’s impact on the daily lives of the people. Citizens’ trust is essential for economic growth and social cohesion. In this nuclear age where information, both true and false, travels faster than the speed of light, only a credible, dependable, honest, responsive, inclusive, fair and accountable system can help to reduce the people’s suspicion, no matter how good government policies may be. The three arms of government, over to you!
