Maturation of Nigerian Constitutional democracy: Checks and balance of power
This is a special article / Note; published to remind/educate and expand our horizons on set precedence of the Nigerian constitutional democracy thus far. This is published for my associates, social media friends/connections and for the “Nigerian Constitution 1999” course trainees enrolled at Debonair Virtual School www.debonairtraining.com/onlineschool
The present political situation in Nigeria can be described as Alarming or as an opportunity to be “seized” for the maturation of Nigeria and the understanding of the social contract that holds her entity together. The perception of if it being tragic, or an opportunity, depends entirely on perception; and to this degree the readers partisanship, religious, ethnic background and sense of morality will instruct their perspective on this matter. However I urge readers to be dispassionate and objective in pursuit of the Nigeria they can forsee a 100 years from now. If they can foresee the Nigeria their great grand children will inherit, will largely depend on the seismic movements of the foundations they engineer and influence now, 100 years before.
3 questions will direct this article and its sub-parts: (1) Where is Nigeria now (2) Where is she going (3) How is she going to get there?
Where is Nigeria now?
Nigeria as of today is 58 and a quarter years old. After independence from Britain (1960) a constitutional democracy framed on the American executive democratic system, which also inherits extant laws of its former British colonial master.
There is the constitutional separation of powers whereby the Legislature, Judiciary and Executive have their roles in government so they check and balance each others power. The legislature enacts the laws which give power, the Judiciary interprets the laws if consistent with the constitution of which they are masters, the Executive applies the power.
Since Nigeria gained independence,
Corruption has been a problem and most of the under-development and consequent problems have been because of this endemic Corruption and some may say the acceptance and entertaining of the corrupt, with some being their sycophants, and allowing an economy to exist from this sycophantic relationship. This attitude cuts cross across both political parties, hence 4 years ago I published a short article, on why i am non-partisan, why I objectively support truth, supported by facts as well as good policies buttressed by these facts. https://www.facebook.com/notes/greg-ekhator/i-do-not-support-any-party-nigerians-dont-yet-practice-ideological-politics/1090033554356221/
A corrupt judiciary in any nation will present a gigantic problem for all the people in that nation. No one will be able to escape it, even the corrupt, albeit they will temporarily gain from it, but they will in the end lose as is becoming evident with the present Buhari administration.
The alleged corrupt Justice Walter Onnoghen,
has by his own admission not declared bank accounts running into the millions of US dollars as well as properties around the globe. The total count of undeclared assets is not yet fully tallied but they are already in excess of $10 million, which is equivalent of billions of Naira. This alleged and self admitted wealthy billionaire, happens to be also the CHIEF JUSTICE of NIGERIA (CJN), so if the apex justice, in charge of the apex court insists on amassing wealth and doesn’t touch his salary, what is to be expected of his subordinate Justices and their courts. The polity is heated up at the moment because while the general election is scheduled 2 weeks from now on February 16th 2019, this same CJN, as bequeathed on him by the constitution was empowered to rule on any dispute concerning who wins the election if raised by any side.
This has already resulted with us having 2 sides in our polity with one side vociferously decrying constitutional crisis due to President Buhari exercising his own executive power, and the other, supporting the action of the President because indeed no one should be above the law, and no one should be judge/jury in his own trial.
I happen to be in support of due process of the law, being explored and exploited only morally and correctly. This insistence on morality and correctness is currently the topic of many debates on social media, with many decrying hypocrisy on both sides.
So where is this leading us to?
2. Where are we going?
I have had many debates on social media, and perhaps you have also noticed quite a lot of Nigerians are quick to run off with talking points without digesting after checking the veracity of the information.
I was in a particular debate, where I asserted those who are support what is good for Nigeria will support the president’s recent action, and allow all sides to argue this according to the letter of the law. In the end it will be for the betterment of Nigeria and maturation of our democracy. I was lambasted by quite a few who responded saying, I am a covert APC partisan supporter and Buharist, who is assuming moral superiority, as if i have a monopoly on it. This kind of accusation is the typical partisan line that derails healthy debates as I mentioned earlier, and the reason why all Nigerians need to be dispassionate about this and objectively consider the truth as buttressed with facts. The betterment of Nigeria and her offspring in 100 years from now, will definitely help us achieve this single-minded, higher and big-picture selfless focus.
Recently the NBA in Nigeria held a demonstration against the acting CJN appointed by the president, calling it a constitutional crisis and a rape of our democracy, and a return back to the dictatorial military junta days of Nigeria.
So let us examine the Constitution of Nigeria 1999, and what it says about
(a) Non declaration of assets by Walter Onnoghen:
The Nigerian constitution is very clear about this: The Constitution in Section 172 states, “A person in the public service of the Federation shall observe and conform to the Code of Conduct.” Paragraph 11 of the Code of Conduct (Ethics of Work for Public Officers) stipulates that, “Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter:(a) at the end of every four years; and (b) at the end of the term of office; submit to the Code of Conduct Bureau a written declaration of all his properties, assets and liabilities and those of his unmarried children under the age of 18 years. And that “Any statement in such declaration that is found to be false by any authority or person authorized in that behalf to verify it shall be deemed to be a breach of this Code. Any property or assets acquired by a public officer after any declaration required under this Constitution and which is not fairly attributable to income, gift or loan approved by this Code shall be deemed to have been acquired in breach of this Code unless the contrary is proved.” So clearly, there has been a gross violation by the chief justice of the land in not doing this, and the trial of him will reveal how much was not declared, the source of it, and the motive for not declaring it.
(b) The purview of the NJC in handling this matter if the president had left it to the NJC as an internal matter?
At the crux of this issue is the counter allegation that the president of Nigeria, has himself violated the constitution by not allowing “due process” ie the National Judicial Council (NJC), handle this matter. They fail to also understand or mention, that one of the cardinal principles of natural justice “nemo judex in causa sua” for him to be a judge in his own cause. See GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550. As Justice Walter Onnoghen is also the head of NJC, it is not tenable for him to also preside over his own case, except corruption is being tolerated by the government.
(c) President Buhari’s executive powers in appointing an acting CJN, and why ?
Prof Mojeed Alabi, PhD Political Science, PhD Law, LLB, MHR answered this extraordinarily with citations in our constitution. In a situation where the legislature could not act and my learned senior brothers were unwilling to safe the judicial institution from the current travails, the doctrine of necessity could be invoked to prevent a constitutional cul de sac, by temporarily easing out the CJN to allow for proper investigation that may or may not indict him.
The President as the “appointor” of the CJN under Section 231(1) has the power to appoint an acting CJN under Section 231(4) for a limited period not exceeding three months as provided under Section 231(5). This same principle governs the appointment and removal of the PCA (President of the Court of Appeal) appointed under Section 238(1) as applied in the earlier case of Isa Ayo Salami under the Jonathan administration.
The argument that the President ought to have waited for a recommendation from the NJC cannot be sustained in the instant case. By Schedule 3E, par 13(a)&(b), the FJSC can recommend removal of CJN to NJC, and the latter can by Schedule 3I, par 21(a)&(b) recommend the removal of the CJN.
Unfortunately, the FJSC and the NJC are each headed by CJN, the accused person. This scenario wasn’t entirely unforseen; I painted it vividly and warned against an NJC that was virtually turning into a monster as far back as 2014 in my POLITICS AND LAW: ANATOMY OF THE SIAMESE TWINS (Unilorin Inaugural Lecture).
The issue of whether the Senate could activate the removal process itself is neither here nor there. What is certain is that the Senate as presently constituted could and, indeed, did not act!
In the circumstances, there was a constitutional vacuum, which could not be allowed to linger ad infinitum. The doctrine of necessity requires that someone must step in to do the needful. The onus fell on the President, the primus inter pares among the principalities of government, to break the logjam, as he did when he seized the opportunity of a CCT order to suspend (not remove) the CJN to prevent an infringement of the constitutional doctrine of Nemo Dat Judex in Causa Sua (you cannot be a judge in your own cause)! ~ (Prof) Mojeed Alabi, PhD Political Science, PhD Law, LLB, MHR What Buhari did is permitted by logic and our constitutional law.
(d) The gathering of the NBA in protest as well as heating up the polity
While this gathering/protest is an exercise of their constitutional rights, the real purpose of it morally and ethically is what Nigerians should question. If we take a deeper look, it will be gleaned that most of those protesting could have an ulterior motive, and could be beneficiaries of Justice Onnoghen prior verdicts dispensing injustice to Nigerians. There have been many other times where protests by not just the NBA but other professionals have been called for but such haven’t occurred. Right now ASUU is still on strike to start with.
(e) The impact of this influencing the presidential election on february 16th 2019
It seems quite clear that the timing of this CJN brouhaha is indeed suspect, especially as the 2019 general election is within a Month, this blatantly smacks of calculated high stakes political strategy by the administration. Nonetheless, nothing illegal has been done by the government so far, and as such it is still fair play to them. Perhaps if the CJN was charged 6 months ago, the seriousness of this charge will slip through unnoticed, given the short attention span of the polity, awaiting the next brouhaha.
It doesn’t change the fact that a corrupt Chief Justice of Nigeria cannot be above the law, and absolutely should not be allowed to oversee election disputes that could arise. It is expected that the opposition will cry foul, because they most likely have hedged their bets on the alleged corrupt CJN ruling in their favour if it comes to disputed election results. So now that it has come to this just before the election, my position is: Let the law take its full course and let everyone pay attention, now Nigeria has got your attention.
(f) Are the Western nations of US, UK & EU right to issue statements concerned about suspension of the Nigerian Chief Justice?
The Save Humanity Advocacy Centre has given an insight on the real reason behind suspension of the Chief Justice of Nigeria, Justice Walter Onnoghen. Chief Justice of Nigeria, Justice Walter Onnoghen.
The human rights group said the controversy trailing the ousting of Onnoghen was needless because the Constitution of the country was clear on the crime committed by the ex-CJN. According to SHAC, the United States of America, the European Union and the UK government did not have full insight into why Onnoghen was asked to step aside.
In a letter addressed to the Ambassador of the United States of America and signed by Patrick Akpokwu, Director of Communication, SHAC urged the diplomatic communities avoid unguarded public statements that could incite the general public given the peculiarities of the time we have found ourselves.
The letter reads: Please note that The 1999 Nigeria Constitution, as amended, is very clear on assets declaration by public officials. Declaration of assets by public officers in Nigeria is not a voluntary exercise. Instead, they are mandated by the law to do so before and after occupying public offices.
The Constitution in Section 172 states, “A person in the public service of the Federation shall observe and conform to the Code of Conduct.”
Paragraph 11 of the Code of Conduct (Ethics of Work for Public Officers) stipulates that, “Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter:(a) at the end of every four years; and (b) at the end of the term of office; submit to the Code of Conduct Bureau a written declaration of all his properties, assets and liabilities and those of his unmarried children under the age of 18 years.
And that “Any statement in such declaration that is found to be false by any authority or person authorized in that behalf to verify it shall be deemed to be a breach of this Code. Any property or assets acquired by a public officer after any declaration required under this Constitution and which is not fairly attributable to income, gift or loan approved by this Code shall be deemed to have been acquired in breach of this Code unless the contrary is proved.” Hence public declaration of assets is best recommended so that both the Code of Conduct Bureau (CCB) together with its Tribunal (CCT) and the general public may work in agreement.
Our Grouse: Your Excellency may wish to know that there are stipulated penalties for violation of the CCB law in Nigeria regardless of the position the individual occupies as the law is no respecter of persons. The case of the Chief Justice of Nigeria presented us a very challenging circumstance wherein the Chief Law Officer in Nigeria for inexplicable reasons decided to act in a contrary and morally bankrupt manner by not declaring parts of his assets. This act he attributed to “forgetfulness.”
Your Excellency, such an act cannot be condoned in a sane clime, and even in America, Britain, and France. Consequently, we are at a loss as to the way, and manner statements have been credited to your esteemed persons which we firmly believe echoes’ the views of your home countries. It is, therefore, our considered opinion that such statements were not fair and maybe as a result of a lack of understanding of the issues at hand.
For the Records: The Chief Justice of Nigeria is standing trial for false declaration of assets, and he was consequently advised to step aside pending the determination of the suit. But he refused and instead used all manners and means to frustrate the law from running its course. He was also advised on moral grounds that he cannot continue to denigrate the office he occupies because he is standing trial for an offence he committed and not an allegation. This much he confessed to in a written statement.
What we expected:
We expected some decorum in public statements from members of the Diplomatic communities in a case as sensitive as this. This is on the heels that it was public knowledge that on infraction was committed by the Chief Justice of Nigeria.
We also expected that members of the Diplomatic community would be sensitive enough to know that Nigeria is a sovereign country bided by a Constitution.
We also expected that members of the Diplomatic community would not join the select few that have given some form of political interpretation to the suspension of the Chief Justice of Nigeria from office.
We expected that the members of the Diplomatic communities would exercise restraint in public conduct given that the general elections are around the corner so as not to send the wrong message to the voting public.
We also expect that members of the Diplomatic community would at some point appreciate the efforts of the present administration in sanitizing the system.
Our Prayers: “Nigeria is a sovereign country, and as such, that must be clearly understood and appreciated by all, including members of the Diplomatic community in Nigeria. Respect for our people and values are sacrosanct. Unguarded public statements could incite the general public given the peculiarities of the time we have found ourselves. And so they should be minimized or avoided if possible.
The fact remains that the suspended Chief Justice of Nigeria violated the law and not a case of witch hunting or political persecution. And there are penalties for breaking the law the world over, Nigeria inclusive. https://www.vanguardngr.com/2019/01/onnonge-centre-provides-us-uk-others-with-perspective-to-ex-cjns-suspension/
(g) What are we collectively learning from this brouhaha, for the future of Nigeria and her constitution?
3 major learning points that have emerged from this debacle are:
a- Our sense of veracity with information is not very good, because a simple check of the Nigerian constitution 1999, will save our polity a lot trouble, wasted energy including rumour mongering which heats up the polity unnecessarily.
b- Our Judiciary, like every other in Nigeria, is indeed very corrupt with collusion from the legal professionals.
c- Very very few Nigerians, perhaps less than 200,000 out of 200 million (0.001%), understand the Nigerian constitution, so they are oblivious of their rights or how to play their part in Nigeria’s democracy; to require good leadership from their elected politicians. Hence even though we are running a system used by Americans relatively successfully, we are not getting the same successful results so far.
3. How is Nigeria going to get there?
Nigeria will arrive at the promised land by immersing her citizens with the knowledge of the instruments and agreements that make up Nigeria, quite early in the average citizens education. So that they can head on formulate popular culture that tackle Nigerian issues, exploring and positively exploiting the democracy government template as it best works and suits her people.
In America, a child of 8 is already familiar with the greatness that is expected of America and Americans. By age 12 (Secondary school age) they are already conversant with their right to freedom, free speech and some of the amendments to their constitution (Right to bear arms, rights to free speech and the 5th amendment). They are very engaged with their democracy, and it is considered a right of passage to vote when they are 18 years old. A badge of honour that shouldn’t be wasted.
Nigeria will hopefully continue to mature with occurrences like these that test the constitution and force our attention span to recognise what rules bind us together as an entity. The more Nigerians that are engaged, the more mature we will become as a people and the more responsible and just leaders will bubble to the top for leadership roles.
To take a quick beginner course on the Nigerian constitution 1999 as amended, browse to www.debonairtraining.com/onlineschool and click on “Nigerian constitution”. Sign up, for this free course. You may request to be enrolled for other courses.
Gregory Ekhator a tutor, keynote speaker and entrepreneur. An IBM certified E-Business and e-Learning Architect, founder and chairman of Debonair Virtual School, London, Lagos