1999 Constitution, Accountability and Rule of Law

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Promoting the Nigerian Government’s adherence to the rule of law, is not only by Government obeying the laid down laws of the land, but by accountability, both in official duties and the actions of all Government officials. Clearly, successive Nigerian Governments have developed a penchant for disobeying the law, and just doing what  pleases them. Strangely, accountability as far as their work is concerned doesn’t even arise, as we are all aware that Section 6(6)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) ousts the jurisdiction of the court when it comes to the contents of Chapter II of the Constitution, that is, the Fundamental Objectives and Directive Principles of State Policy, which is actually the essence of governance, setting out all the milestones that Government is meant to achieve. Since the courts were established to, inter alia, adjudicate on practically every type of dispute between all classes of people and agencies, it is bizarre that we are not allowed to ventilate our grievances against Government when it fails to fulfil its constitutional obligations. 

Government’s Lack of Accountability 

Meanwhile, we, the people, are held accountable when we break the law. For instance, if an individual beats up or kills another, he/she will be prosecuted for assault or murder. But, a different standard is applied to Government. Take for example the Federal Government’s breach of Section 38 of the Central Bank Act 2007 (CBN Act), in form of incessant borrowing using the Ways & Means Advances contrary to the conditions set out in that law, no one can really stop Government from breaking the law; it seems that we can only complain. 

Another example is the Government not paying workers a reasonable national minimum wage, pensions, unemployment, sick benefits, nor providing welfare for the disabled (see Section 16(2)(d) of the Constitution); as wicked, inequitable and unfair as it is, the bottom line is that, there’s not much we can do about it. NGOs like SERAP, are only wasting their time instituting actions to question Government’s nonsensical expenditure on fabulous benefits for its top level Officials; the truth is that, as the law stands, nothing can come out of such cases, as the court has absolutely no power to order the Government not to make those frivolous expenditures, or to provide these benefits for the masses.

Remember the case of the purchase of Tucano Jets from USA, allegedly to fight terrorism. President Buhari bypassed the laid down lawful process to be followed in order to make such a purchase of close to half a billion US Dollars, including seeking and obtaining Senate approval beforehand, and nothing could be done to stop him. He made a flimsy excuse, and sought the Senate’s ratification after the items had been purchased. Nothing could be done to stop President Buhari – not even the courts, even though his act, no matter how well meaning, was unlawful. See the case of AG Ondo State v AGF & Ors (2002) LPELR-623(SC) per Muhammadu Lawal Uwais, JSC (later CJN) on the non-justiciability of the rights in Chapter II of the Constitution, unless as otherwise provided in the Constitution; Okolo & Anor v Union Bank of Nigeria Ltd 2004 3 N.W.L.R. Part 859 Page 87 per Niki Tobi, JSC on the consequences of a court lacking jurisdiction to entertain a matter. 

Military Constitution, ‘Autocratic Civilianocracy’ & Oligarchy

The truth of the matter is that, when you have a military administration produce a Constitution that is meant to be the grundnorm in a democratic setting as is the case of the 1999 Constitution, it is probably foolhardy to imagine that it would be a reflection of true democratic norms which are probably antithetical to those of a military dictatorship. Instead, what we have is a document that is below par, riddled with controversies, without any form of avenue for accountability of Government to the people, especially with the inclusion of Section 6(6)(c) of the Constitution ousting the jurisdiction of the courts in all matters that concern accountability; what we have in Nigeria is simply an ‘autocratic civilianocracy’, that is, a dictatorship comprised of the Executive and Legislature – undoubtedly a bigger decision-making mechanism than what obtained in the military era, but still, more or less, despotic, because of their non-accountability; in short, an extension of military rule with the rulers exchanging their military uniforms for our traditional ‘Agbada’. In fact, out of 24 years of our so-called democratic Fourth Republic, we have had two well known military dictators, General Olusegun Obasanjo and Major General Muhammadu Buhari, in the driver’s seat for a total of 16 out of the 24 years! 

The statement by Lord Acton, a British Historian, that power tends to corrupt and absolute power corrupts absolutely, may be what is now playing out in the Nigerian governance and political space. The Legislators who are meant to be the direct representatives of the people, the ones empowered to undertake radical constitutional reforms (see Section 4 of the Constitution), who we looked up to, to correct all the anomalies in the military Constitution, quickly realised that they derive more power and personal benefits from the oligarchy they have formed with the Executive, and consequently, they are not interested in making any meaningful constitutional or statutory  reforms that will develop our nascent democracy. How, for instance, does any reasonable society justify an outgoing Legislator collecting a fabulous severance package, only to return to the next National Assembly as a fresh incoming Legislator, to derive the benefits of a new Legislator, benefits which most Nigerians agree are exorbitant and unjustifiable? Mostly, the Legislature has only played to the gallery in the exercise of its oversight functions, and is not really a check and balance on the Executive à la Baron de Montesquieu’s Doctrine of Separation of Powers (see Sections 4, 5, 6, 88 & 89 of the Constitution). Instead, the Legislature and the Executive are busy rubbing each other’s backs! If anything, the Legislature gives the Executive support, for example, the 9th National Assembly breached its own law, the CBN Act, by approving the securitisation of the Ways & Means Advances. Even the Electoral Act 2022 (EA), on its first outing has shown clearly that some of the provisions like Section 29(5) and the manual processes provided therein will continue to aid politicians with questionable credentials, and those who are not as popular as they need to be to win elections. As long as these people continue to perpetuate and recycle themselves, where will the improvement come from?

Government Officials & Accountability for Wrongdoings 

And, when we come to accountability for wrong doings, be it financial impropriety or otherwise, only a handful of Government officials are brought to justice. Presently, in USA, apart from news on the ongoing issue between the Israelis and Hamas (with Palestinian civilians bearing the brunt), a good chunk of the news is on the former President, Donald Trump, and the cases filed against him. 

While the American Constitution does not confer immunity from suit and prosecution on a sitting President, the Department of Justice (DOJ) which controls all Federal Prosecutors, confers some temporary immunity on a President while in office. So, whatever Donald Trump is accused of, while others involved could have been charged for the various offences while he was still in office, the DOJ waited, and the several cases which had been gathered against him, including charges relating to the insurrection on Capitol Hill after he lost the election, have now been levelled against him. Again, GOP Republican Representative, George Santos spent campaign funds on Botox, Sephora, and luxury trips according to an Ethics Report – there is a call for his expulsion. Accountability! No one is a sacred cow.

Unfortunately, in Nigeria, the case is different. While Section 305 of the Constitution does confer immunity on the President, Vice President, Governors and Deputy Governors while in office, in the case of a President, this immunity seems to have been extended beyond office, as no President has been prosecuted for any offences, be it financial impropriety or any other offences. Granted, a handful of Governors have been prosecuted for financial crimes after they stepped down, but, how many of them have been involved in skirmishes like the Imo State incident, without being brought to book? Possibly, quite a few. 

If we want to curb impunity and promote the rule of law, these Executives have to be held accountable for their wrongs, even if it has to wait till they leave office. Prosecuting them for violent offences against persons during their tenures in office when they step down and are no longer covered by the immunity clause, will serve as a deterrent to others that have a penchant for violence. Was anybody held responsible for the killings at the Lekki Tollgate during the #EndSARS Protest, even the soldiers that fired live bullets on unarmed Youths? I think not.

What about the case of the NLC President, Joe Ajaero? Even if others involved in the assault and grievous bodily harm inflicted on him are prosecuted immediately, if NLC maintains their stand that the perpetrators must be brought to book, and rightfully so too, if it is proven that Governor Uzodinma was indeed, involved in the unfortunate incident, maybe even spearheaded it, he is likely to get away with it, because, by 2027 the incident would have been conveniently forgotten. Nigeria does not seem to keep good records, or follow up. Non-accountability!

Conclusion  

The sum and substance of the matter is that, without accountability and consequences for wrongdoing, Government will have little or no reason to adhere to the rule of law – there’s no motivation to do so. We need to transform ourselves to, “Ilu to lofin, ton lofin”, that is, “A country that has laws, that is using the laws”, be it Government, it’s agencies or individuals – no one or authority or agency is above the law (see Section 1(1) of the Constitution), failing which Nigeria will continue to sink further into a Hobbesian State and state. This would be sad, for a country that has so much potential. Without the adherence to the rule of law, whether by Government or individuals, there will be anarchy and regression, not development.

P.S. Urgent! A Memo to the Minister of Aviation: Re: Delta Airlines & Others 

It is time for the Honourable Minister of Aviation, to read the ‘Riot Act’ to both local and international airlines. It has become the norm for local airlines, to delay flights recklessly. This is wrong. This doesn’t happen in civilised societies. Once local air travel is involved, one is unable to plan; flights are even cancelled without prior notice. 

The international airlines seem to have double standards – a lower standard for the Nigerian route, despite the fact that our tickets do not come cheap, and a higher standard for routes to USA and other countries. This is unacceptable.

I travelled to USA on Delta Airlines, about two weeks ago. While I must say that their crew are courteous and pleasant enough, the food was inedible as far as I’m concerned, with the presentation of the main meal looking worse than animal feed. On the outbound trip,  I opted for the vegetarian meal which I had to abandon, because the greens tasted somewhat sandy, maybe not well washed (as we say in Yoruba, “o pakuta”). I starved all the way to Atlanta. On the return flight to Lagos last week, aside from the fact that they casually announced that there was no Wi-Fi on the ‘not-so-nice’ looking aircraft they used, the food on the return trip was unpalatable, nasty. I had to content myself with eating a few chocolate chip cookies and ice cream, on an 11 hour flight. 

The issue of baggage claim is also a recurring problem in Nigeria, with many of the international airlines. When you travel abroad, the higher the class you travel, the quicker your luggage comes out at baggage claim. On arrival in Nigeria, it is the opposite that obtains. The higher the class you travel, the later your luggage comes out to baggage claim. Then the baggage claim area becomes crowded, as those who flew on the higher classes go through immigration first and then come out to twiddle their thumbs waiting for their luggage, while the luggage of economy passengers who are still going through immigration are congesting the conveyor belt going round with no one to claim them.  This needs to stop. This idea that nonsense that isn’t tolerated abroad, should be the norm in Nigeria, is offensive and unsatisfactory. Again, it boils down to the fact that Nigeria has a culture of non-accountability and no consequences for wrongdoing, and the airlines, both local and foreign, take advantage of this fact. 

It is time to change this negative narrative. We need to infuse international best practices, into our system.