Justice Ademola Was Wrong—Legislators Serve at the Behest of the Electorates

Justice Ademola of the Abuja Federal High Court declared that the PDP legislators that defected to the opposition party have forfeited their seats in the Assembly.  The Justice interpreted Section 68 (1) (g) of the 1999 Constitution, as amended, to prohibit the legislators from conducting any further legislative businesses.  In his ruling, the Justice applied the Plain Meaning rule to conclude that the following warrants his conclusion:

“A member of the Senate or the House of Representatives shall vacate his seat in the House of which he is a member if –

‘Being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.’”

Section 68 (1) (g) of the 1999 Constitution, as amended.

On the surface, Justice Ademola is correct and limited in his opinion, and even more, when the supremacy clause of Section 1 of the 1999 Constitution is read in conjunction.  But that analysis is unhelpful in the face of a constitution that places party politics above the national politics.  Justice Ademola’s conclusion fails to advance societal interest in the face of a constitution that subjects the collective decision of a legislative constituency to the dictates of a political party, and it is dangerous.

Does Justice Ademola’s decision disenfranchise the electorates in the legislative constituencies represented by the affected legislators?  What happens when a legislator is kicked out of his party or refuses to caucus with his party?  What happens when a legislator decides to run for a subsequent election on the slate of another party?  What should be the appropriate role of the party in our democratic system?  What is the evil of carpet-crossing?  These are some of the political, but substantive questions that ought to trouble Justice Ademola before his decision.  And if they did, then a plain meaning analysis of Section 68 (1) (g) of the 1999 Constitution is inadequate.

The genesis of Section 68 (1) (g) of the 1999 Constitution comes from the 1951 Western Nigeria elections.  The Nigerian Council of Nigeria Citizens (NCNC) and Action Group (AG) had fiercely campaigned and contested the Western House of Assembly.  After the election, NCNC had alleged that AG introduced carpet-crossing of his delegates to the party to form the majority party in the House.  AG denied this allegation and maintained that the delegates stood for election under the AG.  There was no violence after the election as AG formed the ruling party in the Western House of Assembly.  It is worth noting that AG lost the local government election of 1953.  Carpet-crossing appeared harmless, and possibly, beneficial.

In a democracy, the will of the people is expressed through their representatives and not a party.  A legislator acts as a link between the Government and the people, and the success of a democracy depends among other factors on the role played by the legislators.  The legislature retains oversight, control and supervisory roles over the proper working of the Government.  It is of importance to note that Section 4 of the Constitution confers the legislative powers of the government on the National Assembly and not the various parties.

Justice Ademola could have employed a myriad of legal mumbo jumbo to do justice but, like Pontius Pilate, he abdicated the role.  A Federal judge has plenary room to roam on a case of first impression, such as was presented in this case.  Plain Meaning rule is elementary—it is often the beginning of statutory or constitutional analysis.  The Judge could have declared the clause ambiguous, and attempt to either excise it from the Constitution or give it a meaning that advances societal interest.  Or, could have looked to the “division in the political party” clause to conclude that such examination into political parties may thrust judges into the political arena, thus unworkable.  He could have sought an interpretation consistent with the history of the law.  Or, could have looked to Section 65(2)(b) of the same Constitution to conclude that independent candidates are not prohibited under the Constitution, as such, changing parties could not be against the spirit of the clause.  In short, Judge Ademola had many tools at his disposal to advance societal interest in a legislature and a legislator unencumbered by political parties and free to challenge the government of the day, but he failed.

In D.O. Fagunwa’s mythological story of Aditu Olodumare in the town of Ifehinti, Aditu was few seconds from having his head severed from his body as punishment for stealing a banana before his father showed up to plead his case.  The law of Ifehinti town was strict liability—intent or the mens rea is not a basis of defense.  Punishments were mostly death and carried out indiscriminately.  Even, the king was not exempted from punishment.  Should the king be sentenced to death, he is allowed to nominate four individuals in the town that would die with him, while titled chiefs could nominate one individual each that shall die with them, if they were to be convicted of stealing.  Also, an accomplice is guilty of the main crime and qualifies for the death penalty.

In Aditu’s case, the second-in-command to the king had given him the permission to cut the banana down from a tree that did not belong to him.  So, while Aditu was guilty of stealing, the second-in-command was guilty as an accomplice.  Aditu’s father requested that further investigation must be performed to determine the veracity of Aditu’s claim.  The second-in-command was identified, tried and sentenced to death.  As privilege of his office, the second-in-command chose the king as the individual to die with him.  The king, on the other hand, chose the next four titled chiefs in the town of Ifehinti to die with him.  Each of the next four chiefs of Ifehinti was entitled to an individual.  As it turned out, Ifehinti would have to eliminate all the chiefs in the town including the king—a constitutional crisis.

Laws are not always sacrosanct—when the law conflicts with nature or it is impractical, the law fails.  Georg Hegel, Thomas Aquinas, and others have written extensively on the notion of natural and supreme laws.   Sophocles’ Antigone chronicled the supremacy of the natural laws.  Even, Jesus Christ chided the Pharisees that questioned his disciples’ activities on Sabbath day.  (Matthew 12).

The 1999 Constitution was written under military rule and after many years of nondemocratic governance.  The drafters of the Constitution, well-meaning and wise, could only look to the American system of government as a model.  There was nothing in our history, manner of governance or way of life that was enough to serve as a model for these drafters of the 1999 Constitution.  In short, the Constitution was written upon a clean slate, devoid of the vagaries of human existence and a deeper understanding of whom we are as people.  To treat such a Constitution as an unbending, inviolable and supreme document of the nation is both misguided and arrogant.  Our courts must find a way to lead discussions on this Constitution in a manner to advance the Nigeria state.

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Mr. Jonathan What Happened to Sanusi’s allegation against NNPC

Ten months ago, Sanusi Lamido Sanusi, the then Governor of the Central Bank of Nigeria, alleged a multibillion-dollar subsidy racket that plagued the Nigeria National Petroleum Corporation (NNPC).  According to him, the racket had caused a shortfall of more than $20 billion in what Nigeria earned from crude oil, which is approximately 3 trillion Naira.  The shortfall, on its own, was responsible for the sharp declines in the income Nigeria derives from oil, the foreign reserves and the local currency, and exerted pressure on state finances.  And, that the shortfall has occurred in spite of the high prices of oil in the international market.

According to the Financial Times of London, Mr. Sanusi backed his allegation with evidence of more than $1bn a month that NNPC earned from crude oil sales that it failed to remit to the Federation Account. He pointed to a 19-month period between January 2012 and July 2013 in which there is a huge disparity between NNPC’s declared financial returns and activities.

Mr. Sanusi cited kerosene subsidy, which NNPC claimed to have spent $8.49 billion in spite of the Federal Government directive in 2009 eliminating the fraudulent practice.  According to Mr. Sanusi, NNPC buys kerosene with federation money at N150, sells the same to syndicates at N40-N50, and, the same kerosene still retails at N170-N250.  An estimated $100m disappears from the NNPC’s account each month.

On petrol subsidy, Mr. Sanusi maintained that NNPC’s deduction of billions of dollars at source for the subsidy violates legal budgetary frameworks.  He argued that NNPC’s conduct disguises the intent of the money and treats it as an operating account.  And that the sheer implication is that NNPC deducts twice the amount of petrol it imports, and without a glut in the Country.

Among others, Mr. Sanusi equally raised questions over the value Nigeria gets when it swaps crude for refined oil, and without any money exchanged in the transactions.  It was estimated that Nigeria swaps an estimated 200,000 to 220,000b/d of its total production of 2m b/d, which comes to about 10%.

Mr. Sanusi first disclosed these allegations to the Presidency, then to former President Olusegun Obasanjo, and then to several news organizations including the Financial Times of London.

On its part, NNPC claimed that Sanusi did not understand “the technicalities of the oil industry”.  Mr. Andrew Yakubu, NNPC’s group managing director, accused Sanusi and Central Bank of acting as an auditing firm, which went beyond the CBN’s mandate.  The trio of Mr. Yakubu, Ngozi Okonjo-Iweala, finance and economic affairs minister, and Diezani Alison-Madueke, petroleum minister, all promised to provide detailed evidence to a Senate oversight panel.

Independent economists from Nigeria’s First City Merchant Bank and Renaissance Capital, an investment bank, dug deep into the allegations raised by Sanusi, and both came to the same conclusion that between $24.3 and $30.8bn discrepancy exists in the account of NNPC.

It is important to note that Nigeria derives more than70 percent of its revenue from oil.  And that the last audit of NNPC—the corporation charges with this important sector, was performed by an independent audit firm of KPMG in September of 2010.  In its 40-page assessment, KPMG raised concerns of serious fraud and corruption at the NNPC at the time.

Alison-Madueke has continuously headed NNPC since April of 2010 while President Jonathan fired Sanusi in April of 2014.  As to Nigerians, the government of Jonathan understood our short attention span as it has shut us out of any further information on the allegations of Mr. Sanusi.

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Why Fashola was Wrong

General Gowon, Nigerian former military leader for more than nine years marked his 80th birthday last week, with Governor Fashola as the guest speaker at a birthday bash in Gowon’s honor.  The picture to the cover story shows a gracefully aged Gowon, a marked difference from the effervescent, young and strong military leader of the Nigerian Civil war days.  At the height of Nigeria’s real oil boom, Gowon was reported to have stated that Nigeria’s problem was not money but what to do with the money.  If Gowon said those words and if he was correct, then those days were long gone.How the money went and where the money went to, again, if true, is a question that appears to be in the minds of all at the podium at the ceremony including Gowon.  Equally, it is a question that Gowon appeared to have answered once and for all, but in the most dangerous and impetuous manner, and joined by his guest speaker, Fashola.

Gowon was reported to have cautioned Nigerians to debate those in authority on policies and to avoid the personal, to avoid divisive issues.  He went further to warn those that bring Nigeria’s name into disreputeshould leave and head back to whatever country of their choice.  According to him, Nigerians must “love Nigeria Honestly, unless you love and accept your country as a nation, then whatever you do is not worth it”.  As Fashola, the guest speaker, advocated in his speech, and which this writer agrees with, values matter!  And Gowon’s value blazed through his comment like a midnight star.

On the surface, Gowon’s statements appear typical and innocuous, but a deeper understanding reveals a very dangerous sentiments and value system.  First, it will be an administrative malpractice to place a fox in charge of the chicken house mainly because of the cleverness of the fox, just as it will be criminal to place a pedophile in charge of teenagers simply because of his or her teaching excellence.  In short, the person and the personality matter.

Gowon treats politics as a game of golf—a non-contact sport; this is wrong.  In politics, a person, as well as the policies, are not only a fair game; they are essential.  The failure to dig deep into the person of the former minister for Aviation, Stella Oduah’s claim to a higher degree from a University in the US, allowed her to perpetrate a major fraud on the nation.  Simply, anyone fearful of the heat does not need to go into the kitchen.  To treat the person as infallible, is to dangerously thread back into our sordid history when our Obas, Chiefs, Emirs and others were regarded as second to the gods and infallible.  This amounts to autocracy—that subdues and abridges the rights and liberties of the people with impunity.  We must and should not retreat back into that dark world.

Fashola, on the other hand, suggested a conference of values and ethical codes to rebuild the nation.  According to him, when Nigerians have asked for a better life, the leadership either misses the question or simply avoids it, and gives a new law or a new document or set up one Committee or another.  He opined, “ordinary Nigerian will not be as interested in what is written in the Constitution, as he will be interested in safety, food, shelter, prosperity, education and work.”  As such, he advocated a shared vision to reclaim our lost values, to re-define our moral codes, and agree on a common definition of what is good and what is bad.

Good and bad are never fixed and are relative in time, tribes and topology.   Whether, as John Stuart Mills and Jeremy Bentham advocated that the aggregate of happiness is the standard for measuring good and bad, or as the Confucian argues, that the relationship of an individual to a community defines good and bad; Nigerians, according to Fashola, will be required to place their religious, cultural and historical differences together in a box to sift a unifying concept of good and bad.  This is not only impossible and unrealistic; it is not necessary.

The subtle point of convergence between Fashola and Gowon is their argument against individual liberty.  Gowon argues that speech and expression must be curtailed as a condition for Nigerian citizenship—that, speech concerning Nigeria must be controlled.  Fashola, on the other hand, believes that “ordinary Nigerian will not be as interested in what is written in the Constitution, as he will be interested in safety, food, shelter, prosperity, education and work.”  As obvious, Fashola did not take issue with the content of the written constitution but rather with what he considers the predicate to the question an ordinary Nigerian asks.  In short, that an ordinary Nigerian will substitute the written constitution with the so-called “stomach infrastructure”.

This argument is not new, benevolent autocrats around the world employ it to rape and impoverish the same citizens they intended to benefit—they have used the argument to curtail rights and liberties of those they professed to represent.

As Jesus Christ argues, man shall not live by bread alone but the words of God.  The words and the constitution matters, it is what gives breadth to the relationship between the governed and the governor; it defines the relationships among the governed; and the relationships between the governed and others that choose to be governed.  Man needs more liberty and not less, and between bread and liberty, any group of people that chooses bread has lacked both bread and liberty, while the converse remains the ideal. “Give me liberty, or give me death!” was a quote attributed to Patrick Henry, one of the American founding fathers in 1775.  From a humble beginning in 1775, America has risen to dominate the world.  The same cannot be argued in the case of the dominant powers of 1775 that had chosen bread over liberty.

Both Fashola and Gowon argue for a collectivist system, that would form the basis of the Nigeria State and where Nigerians could all share an identity—a commonality of ideas.  According to Fashola, what Nigerians need to rebuild the nation is to reclaim the lost “values, re-define our moral codes, agree on a common definition of what is good and what is bad, pursue the development of our nation along these codes”.  What is a moral code of the nation…and, who defines what is good and bad?  This is a very dangerous phenomenon when a State defines a moral code and legislate good and evil.  Fela AnikulapoKuti will be writhing in his grave wondering whom he should send to remind Nigerians of my generation the lyrics of his “Zombie” again.  Who will become the moral czar, and whose morals would form the code?

A Persia king was said to have summoned his Greek advisers to ask what it would take for them to eat the dead bodies of their fathers.  The Greeks thought the request was detestable, as they burn their corpse, and politely told the king that they would not do it for any money in the world.  Later, in the presence of the Greeks, the king summoned the Callatiae Indians in his court, who eats the dead bodies of their parents, and ask the same question, what it would take for them to burn the dead bodies of their parents.  In horrific disgust, the Callatians responded that they would not do it for any money.  As Herodotus, the Greek poet stated, custom is king of all.  Morality is what the majority espouses at a time, but the majority should not be conflated for all.  To agree on a definition of what is good and bad is to limit curiosity and innovations.  The evolution of morality, just as in good or bad, has always responded positively to a competitive advantage of nature.

Without a doubt, Nigerians need a discussion on a value system—a national value and not a moral or social values advocated by Fashola.  There could not be a moral or social absolute.  Any restriction placed on moral or social values lead to cohesion and totalitarianism, and is bad for development—it restricts innovation, development and expression.  Having said, the French revolution and American bill of rights were both modeled on national values—the freedom of the people from government abuses and economic liberty.  These are the values expressed by Jeremy Bethany and John Stuart Mills in their sums of the individual happiness doctrine.

In other to guarantee freedom, liberty and happiness of the individual from oppressive governments, both the French and the Americans placed strictly defined rules upon their governments.  The rights and liberties of the Individual were extracted from the convenience of the kings and his courtiers.  The limits of good, bad and morals were set low to accommodate both the appealing and the distasteful.  Anything less or different is dangerous.  Again, when Fela Anikulapo Kuti married twenty-seven wives or chose to transport vegetables, leaves and trash inside his expensive Mercedes Benz, he invariably extended our rights and liberties.

Ambrose Alli was a professor of virology and former governor of Bendel State between 1979 and 1983.  In 1980, Alli challenged President Shehu Shagari for visiting Bendel State without any former and proper notification from the presidency.  Alli’s goal was to define the limits of federal power over States in a federal system of government, unfortunately, many Nigerians objected to Alli’s actions and crippled our federal system.

While Gowon’s military background could explain his value system.  After all, as a General and military Head of State, his position placed him at the stratosphere of power over subordinate military men and women, and over Nigerians.  He ruled Nigeria over a period of anarchy when civil liberties and freedom were curtailed as a matter of right.  That could not be said of Fashola.

With liberty of assumption, Fashola came to his own at the same time with this writer.  More than not, Fashola was born around the time Nigeria obtained independence from the British, her colonial master.  The British had ruled Nigeria with little respect for the rights and liberties of Nigerians.  Whenever the rights of Nigerians conflicted with the powers of local authority, the British sided with the local government authority.  And with the British kicked out, our own Nigerian elites have perpetuated the same policy the British implemented.

These values that fail to respect the rights and liberties of Nigerians must, for a start, be eradicated.


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