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Constitutionality of posthumous awards and public holiday


Late Gani Fawehinmi

The pronouncement conferring posthumous awards on some distinguished and notable Nigerian citizens by virtue of their sterling contributions towards the enthronement of our nascent democracy has generated some controversies.

It will be recalled that the annulled June 12, 1993 general election has been adjourned as the most credible to be conducted in the political history of Nigeria; it was free and fear with option A4 as our voting system.

Interestingly, late Chief M.K.O. Abiola was the Presidential candidate of the Social Democratic Party (SDP) with Alhaji Babagana Kingibe as the Vice Presidential candidate.

For the purpose of setting the records straight, Alhaji Bashir Torfa was the Presidential candidate of the National Republic Convention (NRC).

With the practice of option A4 in place and voting exercise concluded, it was obvious that late Chief M.K.O Abiola was leading following the announcement of the results of that election by Prof. Humphrey Nwosu (Chairman of the National Electoral Commission) who was ordered to discontinue with further release of the remaining results by certain highly placed persons in power who felt challenged that the late financial mogul would be too independent to be controlled as an Executive President of Nigeria.

Nigerians are aware of the intrigues that greeted the annulment: the Epetedo declaration by Chief M.K.O. Abiola, his sojourn to the United States of America, the avalanche of protests, the death of his precious wife (Kudirat Abiola), his return from the United States of America, arrest and detention by the government of General Sani Abacha and his demise having been served with a controversial tea in the presence of some international observers.

With the role played by the National Democratic Coalition (NADECO), other related interest groups and activists, democracy was restored with late Chief M.K.O. Abiola paying the supreme price with his life.

All these culminated and wrapped up with the emergence of Chief Olusegun Aremu Obasanjo as President who ruled Nigeria between 1999 and 2007 but failed, refused and neglected to accord Chief M.K.O Abiola his deserved position in the struggle for the actualization of democracy in Nigeria by recognizing the sanctity of June 12.

Perhaps intimidated by the historical importance of this date, President Olusegun Obasanjo chose rather 29th May as “Democracy Day”.

Some was applicable to Presidents Yar’Adua and Dr. Goodluck Jonathan until June 6th 2018, when President Muhammadu Buhari as usual, took Nigerians (both at home and abroad) by surprise.

He did not only confer the highest and most distinguished title/honour on late Chief M.K.O Abiola, he took a step further by making and declaring June 12 of every year as “Democracy Day”.

Mr. President in this rare display of magnanimity also extended his hand of fellowship to an irreplaceable human rights activist, a defender of the proletarian, a friend of the wretched of the earth and Senior Advocate of the Masses (late Chief Gani Fawehimi) by making him a beneficiary.

Mr President through this singular act has healed the wounds of Abiola’s family, his associates and any directly or indirectly connected to the struggle for democracy.


Mr President while making the declaration emphatically said that he arrived at this laudable decision having consulted widely with relevant/critical stakeholders. Piqued by this development, some persons notably a onetime Chief Justice of Nigeria among others have not been comfortable.

By dint of relevant statutes and the extant constitution, Mr President no doubt derived his powers from the National Honours Act.

Under this Act, there is no provision that restricts, prohibits, restrains, and bars Mr President from conferring “National Honours on deserving Nigerian citizens (either dead or alive).

In tandem with this provision is paragraph 2 of the Honour Warrant Act, which states that “a person shall be appointed to a particular rank of an order when he receives from the President in person, at an investiture held for the purpose.

However, for any general rule, there is a corresponding exception.

In anticipation of late Chief M.K.O. Abiola’s case and late Chief Gani Fawehimi, paragraph 3 of the same document gives Mr President the discretionary power to disperse with the requirements of paragraph 2 above referred in such a manner as may be specified.

The keyword here is the discretion of Mr President and that he has so exercised.

In effect, since both late Chief M.K.O Abiola and Chief Gani Fawehimi cannot receive the awards conferred on them, Mr President is at liberty to confer such on the family members of these heroes.]


In its proper historical perspective, the foundation for the declaration of June 12 as “Democracy Day” and Public Holiday was championed by Governor Bola Tinubu, then Governor of Lagos and other South West Governors on the platform of the Alliance for Democracy (AD).

As expected this paradigm shift from 29th May to June 12 has had its attendant controversies.

A curious and periscopic glance at our constitution and statute books have revealed that except for the four year term for the offices of Mr President, members of the National Assembly, Governors and members of the states House of Assemblies, there is no constitutional provision authenticating or affirming the sanctity of 29th May as “Democracy Day”.

In other words, the President of the Federal Republic of Nigeria can be sworn in without necessarily declaring 29th May a “Public Holiday” as there some states in the federation where Governors are sworn at different date courtesy of certain hallmarks judgments of the Supreme Court (in Ondo, Ekiti, Anambra, Osun States) wherein the political timetable has been upturned and public holidays differed.

However, S.2(1) of the Public Holiday Act stipulates that in addition to the holidays provided for in the schedule to the Act, the President may appoint a special day to be kept as a public holiday either throughout Nigeria or in any part thereof.

It is instructive and obvious that the President does not require any legislative gavel or clearance on a discretionary matter as in the instant case.

Assuming though not conceding that there are some imperfections in this noble gestures, it is incumbent on the institutions concerned to legislate and adjudicate on such curatives without necessarily heating up the polity even if it involves making both dates (29th May and June 12th of each year) public holidays for the purpose of swearing in of any President and the observance of June 12 as Democracy Day.

In the discharge of his duties, Mr President has acted within the ambit of the constitutional provision and relevant statutes by conferring on these illustrious late heroes the prestigious posthumous awards to be received by members of their families.

Omote is a Benin based lawyer

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