The tragedy of lack of a collective sense of history (1)

Amnesia as a characteristic of the Nigerian people
AMNESIA, defined by the dictionary as “loss of memory partially or completely,” is probably the right word to describe the character of Nigerians viewed collectively as a society of men and women living together under a common government and one economy, and governed by a common system of law and ethical behaviour.

As a society of people, though not yet one nation, we care very much about the present and, to a considerable extent too, about the future, but we tend, all too quickly, to forget about the past, to a point that seems to border on a loss of memory about events that happened in the past, or, if we have any memory of them, the lessons they teach seem to be lost on us, or not to be imbibed.

If we have any memory of the past, if events of the past have any lessons for us, if such lessons are not lost on us, or, changing the expression, if we have any collective sense of the history of those events, then, it is something rather puzzling that such lessons are seldom reflected in our political behaviour.

Illustration by specific cases is now called for. Two illustrative cases may suffice. The case of Mallam Nuhu Ribadu, former Chairman of the Economic and Financial Crimes Commission (EFCC) under former President Olusegun Obasanjo, readily comes to mind. Ribadu had, by his various subversions of our federal system in the name of the war against corruption, established for himself discredible credentials, and should therefore stand condemned as an enemy of the people, and not be given a place of honour. Regrettably, the Nigerian people have no memory or very short memory of the past. Or how else could Ribadu’s emergence as the presidential candidate of the Action Congress of Nigeria (ACN) in the 2011 election be explained?

With the withdrawal of the charge against him before the Code of Conduct Tribunal (CCT), and the conversion of his dismissal from the police force to retirement with full benefits, Ribadu had returned to Nigeria from exile in Britain and the United States, the two countries that championed his cause but who, apparently, were not well informed about his subversions of his country’s Constitution while in office as the EFCC’s chairman. According to reports, Ribadu emerged unopposed as the ACN’s presidential candidate, all the other contenders having withdrawn for him. This seems to have come about as a result of manipulations by some well-known political godfather, the same godfather known to be behind the emergence of General Buhari as the presidential candidate of the All Progressive Congress (APC) in 2014.

Now the other illustrative case. Not long ago in 1999, i.e. 16 years ago, which is recent history, we elected a retired army general and former Head of the Federal Ministry Government (FMG) 1976 – 79, General Olusegun Obasanjo, as civilian President for a four-year term, renewed in 2003, by a flagrantly rigged election, for another four-year term. During the eight-year period (1999 – 2007) of his rule, he committed a series of outrageous subversions of our federal system all in the name of the war against corruption as well as other impunities in the exercise of power.

With knowledge of these outrageous subversions of our federal system, how come, then, it may be wondered, that we, in the March 2015 election, elected another retired army general and former Head of the FMG, General Muhammadu Buhari, as our civilian President? Does that not portray us as a people suffering from, or afflicted by, amnesia? To be able to say whether it does or does not, an account of those subversions of our federal system committed by President Obasanjo in the name of the war against corruption need to be given.

We are talking only about subversions of the federal system in the name of the war against corruption, not about subversion of the federal system in general, as to which, see my book titled How President Obasanjo subverted Nigeria’s Federal System (2007), 448 pages. The other impunities committed by Obasanjo are also left out of account for the present, since a discussion of them will take a whole long chapter – see chapter 7, 47 pages, in vol. 3 of my Autobiography (2014).

The account will not, however, be meaningful to, or be easily followed by, the ordinary reader, unless the nature of our federal system and its cardinal principles are first defined and explained.
Nature of our federal system and its cardinal principles defined and explained

Federalism is an arrangement whereby powers of government in a country as well as financial resources are, by legally enforceable provisions in a constitution, sanctioned by the invalidity of acts that violate the limitation, divided between a general country-wide government and regionally – based governments in such a way that each, as a government, has a separate, independent existence as well as equality of status (as distinct from equality of powers) with the others, and is, in its operations, free from control or interference by the others, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority exclusive in some fields and binding directly on persons and things in all matters within its competence. Federalism is thus a vital instrument for limited government, i.e. of constitutionalism. “Of all checks on power” writes Professor John Dalberg-Acton, better known as Lord Acton, “federalism has been the most efficacious and the most congenial….The federal system limits and restrains sovereign power by dividing it.” – John E.E. Dalberg Acton, First Baron Acton, History of Freedom and Other Essays, ed by J.N. Figgis and R.V. Laurence (1907), p. 98.

Underlying the definition above is the principle of the autonomy of each tier of government. Autonomy refers to three things, viz (i) autonomy (i.e. independence from control or direction) in the choice of rulers and in the exercise of power over matters within the exclusive competence of the Federation or State; (ii) absence of power in the Federation or States to confer powers (including functions) or impose duties on the functionaries of the other unless such is authorised by the constitution; and (iii) non-interference in the management of each other’s affairs, which requires that, whilst keeping within the limits of its powers, the exercise of power over matters within the competence of the Federation or the States should not in its practical effect, impede, frustrate, stultify or otherwise unduly interfere with the other’s management of its affairs or its meaningful functioning as a government, e.g. the management of its finances, the appointment and control of its staff, the award of contracts for the provision of services and other projects, the exercise of other essential governmental functions, like that of law-making, the execution of laws so made, and the adjudication of disputes – the principle of mutual non-interference, as it is called.

Of the two pillars of federalism – the ultra vires doctrine (i.e. keeping within the limits of powers) and the principle of mutual non-interference – the latter is definitely the more fundamental, since it is the basis, the foundation, of every federal system, truly so-called, without which a federal system cannot survive. The preservation and maintenance of the federal system of government in a territorially large and culturally diverse community is far more fundamental and overriding than the maintenance of the plenitude of the Federation’s or the States’ power over any one particular matter. On the principle of mutual non-interference, see my Federalism in Nigeria, Sweet & Maxwell 1983, reprinted in 2003, pages 3 – 17.

Happily, these principles are firmly rooted in a long line of decisions of the courts, too many to be all noted here. But there is one such decision that must be mentioned, namely Attorney-General of Abia State & Ors v. Attorney-General of the Federation (2006), where our Supreme Court held unconstitutional, null and void the provisions of Monitoring of Revenue Allocation to Local Governments Act 2005 that trampled upon the autonomy of the State Governments in the management, use and disbursement of their money.

President Obasanjo’s subversions of our federal system in the name of the War Against Corruption
Subversion of a country’s constitution for whatever purpose is bad enough in itself, but it becomes utterly condemnable when it is done knowingly and deliberately for a purpose as despicable as the persecution of a citizen by the wanton deprivation and repression of his rights and interests under the Constitution, or by selective vendetta and witch-hunting to victimise and persecute opponents in order to satisfy the spite and vengefulness of the ruler. Such was the nature of the subversion perpetrated by President Obasanjo in the name of the war against corruption, using as his instrument for the purpose, the Economic and Financial Crimes Commission (EFCC) under Malam Nuhu Ribadu, as Chairman. The subversion was perpetrated in various ways and forms, viz:

The prosecution of Governors Joshua Dariye of Plateau State and Orji Uzor Kalu of Abia State by the EFCC before the Federal High Court (FHC) and the Code of Conduct Tribunal (CCT) for corruption in clear and deliberate violation of their immunity under section 308 of the Constitution. If there was a possible, if untenable, argument as to whether the immunity under section 308 covers the processes of, and proceedings before, the CCT, no doubt whatsoever exists that an incumbent President, Vice-President, Governor or Deputy Governor is immune from the processes and proceedings of a court, including the FHC. Paradoxically, President Obasanjo himself pleaded the immunity and got the FHC to dismiss on that ground, the action brought against him by Gani Fawehinmi for breach of the Code of Conduct : see Chief Gani Fawehinmi v. President of the Federal Republic of Nigeria (General Olusegun Obasanjo) & Ors, Suit No. FHC/ABJ/CS/283/2006, ruling delivered on 12 October 2006. The object of this obviously deliberate subversion of the Constitution was simply to secure the conviction and imprisonment of the two Governors as a way to get them removed from office because of their opposition to President Obasanjo. Happily the prosecution failed in both cases.

(ii) The abortive attempt by the EFCC to get the Speaker of the Plateau State of House of Assembly, Simon Lalong, recalled by his constituency because he was considered by Obasanjo as constituting an obstacle to Governor Dariye’s impeachment and removal from office is another case of a flagrant and deliberate subversion of the Constitution and the rights of Speaker Lalong under it. It was a move so thoroughly discredited by the object sought to be achieved by it, by the fraudulent means used and by its utter disrtegard of the constitutional provisions regulating and circumscribing the recall device – a wicked move motivated, not by the objectives of the war against corruption, but by the design of President Obasanjo’s personal vendetta to settle scores with Governor Dariye. The details are abominable. Happily, it too failed.

(iii) President Obasanjo’s and the EFCC’s subversions of the Constitution in the name of the war against corruption assumed perhaps the most pernicious form in the subversion of the provisions of the Constitution regulating the removal of a State Governor by impeachment. The forms such subversions took affected nearly all the aspects of the impeachment process; the details can be omitted to save time and space, except as regards three distinctly outrageous cases, viz the impeachment and removal from office of Governor Fayose of Ekiti State, Governor Dariye of Plateau State, and Governor Alamieyeseisha of Bayelsa State.

The impeachment and removal from office of Governor Fayose of Ekiti State
In his letter to the National Assembly, which was carried in The Guardian newspaper of 27 October, 2006, President Obasanjo had said : “After the Economic and Financial Crimes Commission (EFCC) had submitted its report on Governor Ayo Fayose’s proven corrupt acts……. we made him to understand that he had to face up to EFCC’s follow-up actions” (emphasis supplied).

EFCC’s follow-up action was of course impeachment by the Ekiti State House of Assembly. The EFCC report was forwarded to the Assembly for that purpose. Sending the report to the Assembly was not merely a suggestion, it was an instigation, indeed a direction, that it should impeach the Governor. The EFCC Act clothes the Commission and its controlling authority, President Obasanjo, with no power to give such direction, not to say, to an organ of an autonomous government of a State in a federal system.

The EFCC did not stop at that. It went further to coerce the Ekiti State House of Assembly members, by blackmail and intimidation, to carry out its instigation and direction. The EFCC invited them for interrogation more than six times. The Speaker and Deputy Speaker were detained once while the first set of five members arrested spent five nights in EFCC’s custody. Finally, on 27 September, 2006 all 26 Assembly members were picked up by EFCC operatives and taken to an unknown destination where, their spirit of resistance now broken, they were forced to sign an EFCC – prepared impeachment notice against Governor Fayose. Incredible as it may sound, the members were still being kept at this unknown address in Lagos during the impeachment proceedings, from where they were driven in EFCC vans to Ado Ekiti, the State capital, to attend meetings of the House.

At this stage”, President Obasanjo continues in his letter to the National Assembly, “to save the State from the agonising experience of impeachment some leaders of the Party at State and national levels counseled Ayo Fayose to resign but he decided to see the impeachment process through”, the process having already been initiated by the Assembly members signing an EFCC – prepared impeachment notice. It may be that the Peoples Democratic Party (PDP), as the party that sponsored Fayose’s election as State Governor, has the moral authority to “counsel” him to resign, but President Obasanjo was acting in the matter more as President of the Federal Republic of Nigeria and Chief Executive of the Federal Government than as party leader.

The prejudice and injustice of President Obasanjo’s stance in this whole affair is revealed by the fact that his mind was already made up that the “corrupt acts” alleged against Governor Fayose in EFCC’s report had been “proven”. Governor Fayose had been found guilty without a hearing on mere accusations made against him in a report by the EFCC, a Federal Government agency controlled and directed by President Obasanjo. The President and the EFCC had thus constituted themselves the accuser and judge of Governor Fayose’s guilt for the “corrupt acts” alleged against him; by asking him to resign, they had pronounced him guilty of corruption.

That clearly is a perversion of the fundamental principle of justice enshrined in section 36(5) of our Constitution which provides that “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”. Had Governor Fayose submitted to the coercion and blackmail by resigning, his resignation would be an implied admission of guilt, which would have left him at the mercy of President Obasanjo and the EFCC. Shorn of his constitutional immunity, he would have been immediately clamped into prison under chains, as was done to former Governor Alamieyeseigha of Bayelsa State after he was forced out of office by a patently illegal impeachment.

Having refused to resign, quite rightly in our view, Governor Fayose had to face impeachment by the State House of Assembly acting at the instigation, or on the direction, of the EFCC and President Obasanjo,. It is a travesty, a carricature, of federalism that an agency of the Federal government should be enabled to investigate the management of the financial affairs of a supposedly autonomous State Government by its Governor and submit its report to the Chief Executive of the Federal Government who, accepting as “proven”, the allegations of “corrupt acts” contained in the report, then asked the State Governor to resign or face impeachment by the State House of Assembly already under a direction to carry it out.

This blatant mockery of federalism is made more a mockery because a State Governor is not armed with a reciprocal weapon which he can apply against the Chief Executive of the Federal Government in a case of “proven” acts of corruption committed by him, such as had been alleged against President Obasanjo.

Governor Fayose must be applauded for standing by the principles of federalism and refusing to succumb to blackmail and intimidation. The Governors of the other States, who for so long have acquiesced in these acts of subversion of the federal system under the Constitution by the President and the EFCC, now fell sufficiently outraged to warn, in an advertorial in the Daily Independent newspaper of 27 October, 2006, that “a situation where impeachment process has been transformed into a frivolous instrument of blackmail and intimidation is against the spirit of democracy and is therefore totally unacceptable.” They condemned in “very strong unequivocal terms the sustained onslaught on the rule of law and constitutional process as evidenced by recent and on-going political developments especially in Ekiti, Anambra and Plateau States” which, they say, “constitute a systemic undermining of the institutions and structures of democratic governance” and a threat to “the peace, stability and continued corporate existence of our dear nation.”

Nwabueze

Lest we be misunderstood, the issue is not whether or not Governor Fayose should have been impeached for the “corrupt acts” of which he was accused. A State Governor who embezzles huge amounts of money belonging to the State Government or who commits other grievous acts of corruption or abuse of office should certainly be impeached for “gross misconduct” but the decision whether or not to do so, based on proof of the truth of the allegations of gross misconduct, is that of the State House of Assembly, to be taken in its own free will without interference, dictation or coercion by the Federal Government. An ordinary federal law, like the EFCC Act 2004, which authorises such interference, dictation or coercion is unconstitutional, null and void as a subversion of the federal system instituted by the Constitution for the government of the country, and the President who initiated or sponsored such legislation and who enforces it or directs its enforcement is also guilty of subversion of the Constitution. That is the dictate of the federal system established by our Constitution.

The effect of President Obasanjo’s and the EFCC’s interference in Governor Fayose’s impeachment – in the form of instigation and dictation as well as the duress exerted on the Assembly members by means of blackmail, intimidation and physical beating and other forms of torture while they were in detention in EFCC’s insalubrious cells – is to render the impeachment unconstitutional, null and void, because the interference is a grievous violation of the autonomy of the Ekiti State Government which is a “bedrock” of the federal system established by our Constitution.

Fayose’s impeachment and removal from office was accompanied by the unconstitutional and illegal declaration of a state of emergency in the State for six months.
TO BE CONTINUED TOMMOROW
•Nwabueze is a Constitutional lawyer and a Professor of Law