STATE OF THE NIGERIAN NATION
FORCES AGAINST FULL ATTAINMENT OF RIGHTS IN NIGERIA
Being the full text of a Press Conference addressed by Justice Development and Peace Centre (JDPC) – a non-governmental, non-profit-making and non-partisan organization, and the main social-development arm of the Catholic Church – to mark the 2015 International Day of Elimination of Violence against Women (IDEVAW) and 2015 International Human Rights’ Day (IHRD).
Distinguished Ladies and Gentlemen of the Press,
The Justice, Development and Peace Centre (JDPC) is a non-profit-making and non-governmental organization (NGO), whose mission is to promote sustainable and integral human and community development through a holistic empowerment approach, without any form of discrimination against any person or group.
Through her Democracy Monitoring and Good Governance Programme, JDPC is also actively involved in promoting a transparent democratic process through Civic Education and Election Monitoring. We remain the largest local Observer Group in Nigeria and have monitored all major elections since 1999.
THE ARDUOUS MARCH TO DEMOCRATIC GOVERNANCE
We mark today a giant step taken by all free nation-states aimed at obviating the major negative attributes of the Second World War: denial of freedom and liberty which was the lot of Germany Nazis and Italian Fascists. At the end of that gruesome war the world leaders concluded that a binding statute must be signed by all nations and upcoming nations irrespective of ideology, colour, creed and geographic locations. This landmark Treaty (a Declaration of Human Rights) was signed without abstention, and subsequent regional and supra-national blocs like the European Union, the Africa Union, the Association South East Asian Nations have since appropriated and institutionalised same into their legal corpus and architecture.
The Instrument covers only civil and political rights referred to as First Degree Rights. The 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN) has elaborately included its provisions in Sections 33-46.
But these are not all the rights that could make peoples free, such that there were the need for other sets of rights (Second Degree) dubbed Economic and Social Rights because over the years, the horizon of rights has broadened. The 1993 World Conference on human rights adopted the Vienna Declaration on the “universality, indivisibility, interdependence, and interconnectedness of all human rights” when it avers, in part:
“That human rights today include civil and political rights and the broader range of economic, social, and cultural rights, together with the rights to development”
Again, most modern constitutions embody these rights expansively and expressively, although some (especially the “Sixth World” countries’ Constitutions) cleverly insert caveats which make them non-justiciable, thereby rendering them inoperable and otiose. The 1999 Constitution of the Federal Republic of Nigeria, for instance, has a full Chapter Two dubbed “Fundamental Objectives and Directive Principles of State Policy”, comprising all imaginable Second Degree rights, but ‘warned’ in S.18(3) that government shall achieve these ‘as and when practicable’. Also S. 6 (6) (c) completes the powerlessness of this chapter when it states that:
“the judicial powers vested in accordance with the foregoing provision of this section” (S.6)- shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter 11 of this Constitution” (S.6(6)(c)).
Its inclusion therefore is just a smokescreen or a way of keeping on with the Joneses. This way, the political leadership is not held accountable and is under no obligation to fulfil any of these provisions and that is the reason the JDPC, in concert with other non-profits insisted, during the still-born Constitutional amendment of the 7th National Assembly (NASS) that these inhibiting clauses should be expunged.
Finally the third level of rights deals with Justice, Development, Environment, Cultural and Humanitarian issues. Again, this has not received universal acceptability and regrettably is largely alien to the Least Developed Countries (LDCs) or the “Sixth World” which is trapped in the first rung of rights and is threatening to regress to pre-1948 stage. Like the two previous levels of rights, the third degree is rooted in and supported by many International Treaties:
Article 29 (1) of the Universal Declaration of Human Rights supports Article 1 of the 1986 Declaration of the Rights to Development which affirms:
“that the individual is, by the virtue of the rights to development entitled to participate in, contribute to and enjoy economic, social, cultural and political development in which all human rights and freedoms can be fully realised”.
The 1997 UN Report connects the necessary nexus between development (or lack of it) and rights thus:
“despite the significant progress since the establishment of the UN in addressing problems of human deprivation, well over one billion people live in circumstances of extreme poverty, homelessness, hunger and malnutrition, unemployment, illiteracy and chronic illness…”
FORCES AGAINGST FULL ATTAINMENT OF RIGHTS IN NIGERIA
This Press Conference is concerned with two debilitating factors that tend to inhibit rights’ attainment in Nigeria: political ineptitude and official corruption. This year, the JDPC beams its search light on the role of the Judicature in progressing the nation to the point of electoral rectitude and fight against corruption. Serious discussions on rights, including the rights of or violence against women and other persons must take the political temper of peoples into consideration because democracy or rights sound like nonsense to an empty stomach and the stomach is always empty if the elites placed in charge of the Country’s common patrimony mismanage, misapply and misappropriate the res publica.
- POLITICAL INEPTITUDE
Our point of departure in relation to electoral rectitude is the mismanagement of opportunities offered the polity to strengthen the Constitution and democracy. Here the recently concluded (?) Kogi State Gubernatorial election comes as typical point. One of the basic attributes of federalism is the power of Judicial Review invested in a supreme judicial authority (a Supreme Court or a Constitutional Court). In the case of Nigeria, that power is invested in the former (vide Section 232 (1) of the 1999 CFRN)
“The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”
It allows the Court interpret and make pronouncements (on rock) on issues that pertain to the spirit and letter of the Constitution and its etymology is from the landmark judgement delivered by the erudite CJ Marshall in the case between Marbury and Madison in 1803, where the learned judge averred that
“the presence of a written constitution and an independent judiciary logically imply the Supreme Court’s power of judicial review; the court, faced with an incompatibility between the constitution and an ordinary law, had no choice but to apply the higher law and therefore to invalidate the law with a lower status” (5 U.S.137, 1 Cranch 137, 2 L. Ed. 60 (1803 ).
The Nigerian political class has unfortunately missed that opportunity about four times in the Second and Fourth Republics:
- In 1979, Alhaji Shehu Shagari, the NPN presidential candidate, satisfied the first requirement of a simple majority, having polled 5,688,857 votes compared to 4,916,651 polled by Chief Obafemi Awolowo, his closest rival. But he (Shagari) failed to win a quarter of the votes in thirteen states out of 19 states as required by the 1979 Constitution of the Federal Republic of Nigeria. Shagari won a quarter or more of the votes in twelve states of the federation and 19.4% in the thirteenth (Kano). Although he did not meet all the conditions for an outright win, for inexplicable reasons, the Federal Electoral Commission (FEDECO), declared him the winner and the courts upheld the declaration, arguing that to do otherwise would amount to an invitation for political upheaval (Osaghae, E.E. 1998:127). The Nigerian nation lost that opportunity of election re-run which small countries like Ghana, Senegal, Guinea, and Mali had applied successfully, but worse, the Supreme Court lost the opportunity of enriching the constitution by standing ramrod straight. Shagari, therefore, “became a president by mathematics”.
- When the former President, Alhaji Umaru Yar’Adua was sick or died, the political class seemed in a quandary as to the interpretation of Sections 144 (1) (a), 145, and 146 of the 1999 CFRN. The proper thing as the JDPC opined then was for the powers that be to approach the Supreme Court for interpretation. That opportunity was also lost.
- On the issue of Presidential assent to an amended Constitution in 2011, the then Minister of Justice and other gatekeepers wasted precious time grandstanding instead of approaching the Supreme Court for a judicial interpretation of the seemingly conflicting Sections of the Constitution as they concern Presidential assent to an amendment of the Constitution, with particular reference to Section 8 and Section 12 (3) which exclude Presidential assent; Section 9 on constitutional amendment which gives condition for Presidential assent, and Section 58 (3&4) which is loud on the same assent in the case of Appropriation.
- The recent Kogi election yet opened a window of opportunity when at the end of that election the APC candidate died before the election was concluded and obviously before swearing in. The macabre dance that follows smacks of a nation in the state of nature (Leviathan scenario) or anomie without an instrument of governance (Constitution) or clear-headed political elites. All gladiators made one baseless claim or another.
- The Peoples Democratic Party (PDP) obviously aware that it has lost the election and understandably routing for an opportunity for a second chance claimed that Prince Abubakar Audu’s votes died with him. But the party cannot cite any laws to back up their claims other than what it called the combined or community reading of the Electoral Law and the Constitution and subsequent legal fireworks.
The All Progressive Congress (APC) basking in the euphoria of gaining control of the illusive Kogi state cited a combined weight of Sections 181 (2) which reads that:
“where the person ELECTED as a Governor and Deputy Governor of a state die or are for any reason unable to assume office before the inauguration of the House of Assembly, the INEC shall immediately conduct an election for the office of a Governor and Deputy Governor of the state” (emphasis ours);
and Section 33 of the 2010 Electoral Law (with 2011 amendments) which reads that:
“A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of this Act, except in the CASE OF DEATH or withdrawal by the candidate” (emphasis ours).
The APC further averred, in an obvious reply to the PDP’s claim that Prince Audu’s votes died with him, that in point of fact the votes are not Audu’s but APC’s. It relied on Section 221 of the Constitution which reads that
“No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party…”
The Attorney General and INEC were on the same page as insisting that the APC should substitute its candidate following the death of Prince Abubakar Audu but fell short of citing which authority they relied on, other than unapologetically stating that the issues “do not need interpretation”. INEC’s decision to order for a rerun in the 91 Polling Units whose elections were cancelled was accurately and rightly based on Section M, Paragraph 4 of INEC’s Approved Guidelines and Regulations for the Conduct of the 2015 General Elections which reads:
“where the margin between the two leading candidates is not in excess of the TOTAL NUMBER OF REGISTERED VOTERS of the polling units where elections were cancelled or not held, the returning officer will decline to make a return until another poll has taken place and the result incorporated” (emphasis ours).
- Prince Audu’s running mate, Mr James Abiodun Faleke, relying on the combined weight of Section 181 of the Constitution and the precedent set by the Atiku Abubukar/ Haruna issue in 1999 in Adamawa state, and arguing that the INEC should not have declared the election inconclusive, as if oblivious of the Electoral Guideline aforementioned, reportedly wrote the INEC and his party (the APC) twice and rubbed it in by heading to an Abuja High Court insisting that he be declared the victor. He went a step further in this shadow-chasing by nominating Audu’s son, Mohammed as a running mate obviously trying to re-incarnate the incidence in Yobe where after the death of Mamman Bello Ali, the defunct ANPP picked his brother as a deputy to Abubakar Aliyu.
Here are the issues:
- Prince Abubakar Audu who was seeking to be a three-time governor of Kogi state (he was governor under National Republican Convention between 1992-1993, then 1999-2003 and if he had goodluck could have been crowned governor come Jan, 2016) and his APC garnered 240,867 valid votes against his opponent’s (reigning Governor Idris Wada and PDP’s) 199, 514 valid votes throwing up a difference of 41, 353 votes which fell short of 49,000 registered but cancelled votes (note very well that the Guideline refers to registered voters not accredited voters as some vacuously argue). The Prince, by polling the majority of the votes cast and winning two-thirds or more of the votes in fifteen out of the twenty-one LGAs (Alhaji Shagari’s Achilles heel), therefore met the requirements of Section 179 (2) (a & b) which state in part that:
“A candidate for an election to the office of Governor of a state shall be deemed to have been duly elected where, there being two or more candidates- (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of the votes cast in each of at least two-thirds of the local government areas in the state”.
- By ordering another election based on these arguments, the INEC tended to forgot the Section 295 of the Constitution which brings in the Court when issues that are either un-envisaged by the Constitution (untoward challenges) or whose interpretations are foggy show up. By hastily taking this action, these bodies tend to have assumed the position of the court, especially the Supreme Court in contradiction of one of the principles of federalism afore-stated.
More worrisome is that a dangerous precedence and snare has been laid on the path to electoral rectitude and it does seem to us that the last has not been heard of that seeming infraction:
- The APC’s new candidate, Alhaji Yahaya Bello contested the primaries, came second and is therefore different from the sacked Taraba Governor who emerged a PDP candidate without complying with Section 87 (1) of the 2010 Electoral Act which states that :
“A political party seeking to nominate candidates for election under this Act shall hold primaries for aspirants to all elective positions”.
But he did not contest the first election. He merely inherited Audu’s or APC’s votes and worse still, if it is proven that Mr James Faleke wrote his party insisting that he be declared winner and not a second fiddle to Alhaji Bello, then there is a big issue because nobody can contest election to the office of Governor of state without a deputy.
- On the part of Mr James Faleke, he cannot sensibly contest the INEC declaration of the Bello as a candidate and winner or insist on having himself presented as a candidate because he did not contest the primaries. He just rode on back on his late principal and so Section 87(1) afore-quoted has effectively excluded him.
- On the part of the PDP, it might decide to be a spoiler knowing that it is already on the ground and so fears no further fall.
The position of the JDPC is that all these issues could have been settled and Nigeria’s constitutional architecture enriched if the political elites approached the Supreme Court for interpretation of these foggy areas because the combined reading of the Constitution, the Electoral Law and the Guidelines provided for the case of the death or disinterest before and after election was concluded but not the period of electoral interregnum and nobody has far cited any provision to prove otherwise other than just grandstanding.
Other heart warning developments from the 2015 General Elections, Bayelsa and Kogi gubernatorial elections is that the power of incumbency is fizzling aware meaning that for a candidate or party to be elected, track records and not primordial sentiments are key; manifest election malfescence especially rigging will be met with cancellation and reruns, meaning that INEC, as presently constituted is on the right road; the irksome landslide victory is almost gone at the centre and at the states; and the power of money, godfatherism, cronyism and clientalism are disappearing for good.
- OFFICIAL CORRUPTION
On the second issue—official corruption—the JDPC is watching with keen interest as the hitherto comatose anti-corruption agencies (the Code of Conduct Bureau, the EFCC, and the ICPC) are suddenly struggling to wake up from their long reverie. What has changed? Some people think that is as a result of the avowed posture of the President while others think that the prompting from the international community and disdain shown to corruption by the Nigerian citizens and citizen groups are responsible. Whoever is responsible make no difference to the JDPC because our position that the war on corruption should be institutionalised and made impersonal (so that its success should not swing with the government in power) has not changed. What will happen if a Buhari is not in power or if the civil society groups cave in? Nations grow not by the presence of strong individuals but strong institutions!
In this connection the present macabre dance of “arms cash bazaar” involving the former National Security Adviser (Col Sambo Dasuki (rtd)) who is alleged to be magnanimous with disbursing (unchecked by the President and Minister of Finance) over $2.1b and $322M recovered Gen Sani Abacha loot between March 27th, 2014 and Jan 12th, 2015 to himself, cronies, surrogates and faceless companies is just an addition to the Country’s despicable corruption profile which the last administration was alleged to be enmeshed in.
The JDPC is not quite sure that Nigerians are worried or surprised or for that matter jubilant about these retold stories, or that Nigerians and the international community are taken aback with the revelations that the former NSA allegedly spent N2,219,188,607.50 + $1,671,742,613.13 + 9,905,407.00 pound sterling in alleged phantom contracts for the purported procurement of 4 Alpha Jets, 12 Helicopters, bombs and ammunitions; that High Chief Raymond Dokpesi and “other embedded organisations” allegedly got a slice of N2.1bn for publicity; or a Mr Salisu Shaibu of the Office of the National Security Adviser allegedly stored wealth away from the moths: three Duplexes at Lake View Jabi, Abuja worth N810M, a mansion in U Bur Dubai, an expansive farm in Zaria (Damwanzam Farms Ltd), interest in or total ownership of Halal Hotel and Rekiya Hospital in Kaduna and bank deposit of N600M naira deposited on 02/10/2014; that the former Sokoto Governor—Alhaji Attahiru Bafarawa allegedly garnered N4.6BN and his son (Sagir Bafarawa) more than N700M for spiritual purposes; that Chief Olabode George allegedly cornered N100B, that the former Minister of Finance (Ambassador Bashir Yuguda) allegedly received N1.5B from the NSA, N1.275B from the Stallion group for campaign purposes, N775M from the office of the Accountant-General of the Federation for unstated purpose; Peter Odili; Dr Bello Haliru Mohammed (former PDP acting Chairman) are alleged to have their hands in the pie.
Some statements on the present fight against corruption are apt here. There is this ideal talk about Single Treasury Account not being in the Constitution. The JDPC hereby call attention of doubting the Thomases that Sections 80 (1) and Section 162 (1) were clear on this when they provide that:
“All revenues or other moneys raised or received by the Federation (…) shall be paid into and form one Consolidated Revenue Fund of the Federation” (S.80c1); and that
“The Federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the Government of the Federation…” (S.162c1).
If these sections of the Constitution had been obeyed in breach for many years, does it mean that they are inoperable? And how come that some people argue as if the years when some Ministries, Departments and Agencies (MDAs) like NNPC kept some unprintable number of accounts is the best for the health of the nation?
Same goes for Bank Verification Number system. Shockingly, with its introduction a great number of account holders had abandoned their moneys in the banks afraid that the anti-corruption agencies may ask them for some explanations. But more importantly, the BVN system is Nigeria’s surest biometric data base for now. This is also were we locate our worry about the Social Security payment that the Administration wants to implement. This is a wonderful idea but how can it be implemented in a society that has no reliable data bank, a society where anybody can enter and leave without identification? Can the leaders first think of total biometric capture and reliable National Census before its implementation so as to obviate a situation where it will end up as a bonanza for the boys?
- MATTERS MISCELLANEOUS:
The following issues must engage the attention of the ruling government:
- Bail in police stations must be free and extra-judicial killings that reduce us to pre-civilization epoch must stop;
- The number of Awaiting Trial Persons presently put at about 60% of inmates must be reduced by deliberate policy instruments;
- The Social Media Bill before the Senate must not proceed any further because its passage will reduce Nigeria to the Communist world order. Laws against libel and slander should instead be strengthened;
- Biafran agitators must be engaged in dialogue not hounded or hunted or the idea buried in the manner Gen Yakubu Gowon decreed it out of order in1970;
- The collateral damages caused by Boko Haram insurgency must be mitigated and quickly too;
- All violence against persons especially the perceived weak and voiceless must be placed on the front burner of national discuss;
- Nigerians must have right to decent housing.
Rev. Fr. Raymond Anoliefo
Joe U. Nkamuke
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