Time to strike

By Gabriel Amalu

The members of the Judicial Staff Union of Nigeria (JUSUN) who have been on strike for the past four weeks, surely did not take head to the Biblical exaltation in the book of Ecclesiastes which extols: “To everything there is a season. A time for every purpose under heaven.” If they did, they would have known there is a better time to go on strike, to gain the attention of the recalcitrant state governors, who don’t give a damn if the courts are shut.

If JUSUN members are as wise as the serpents, they would have known that the best time to strike was when the governors are before the tribunals with their time-bound election petitions. But JUSUN was relying on the justness of their cause, and trusting that with little pressure, democratically elected governors will obey the 1999 constitution (as amended) from which the derived their power to govern. But as the striking unions have found out, most governors pay scant regard to the constitution, except to wield the powers it confers on them.

For four weeks, the high and lower courts across the country have been grounded, because some governors are unwilling to obey the provisions of the Constitution of the Federal Republic of Nigeria, 1999, (Fourth Alteration, No. 4) Act, 2017. The Act which came into effect on 7th Day of June, 2018, provides in section 2, as follows: “Section 121 of the Principal Act is altered by substituting for subsection (3), a new subsection (3).”

The new subsection 3 provides: “Any amount standing to the credit of the – (a) House of Assembly of the state; and (b) Judiciary; in the Consolidated Revenue Fund of the State shall be paid directly to the said bodies respectively; in the case of judiciary, such amount shall be paid directly to the heads of the courts concerned.” For reasons best known to the recalcitrant governors, they have refused to obey that clear provision of the constitution, even when President Buhari tried to force obedience by an executive order.

Could it be because the governors constitute a major force in the political calculation for the 2023 general election, which has become the main concern of the ruling elite that the president’s executive order has been treated as a worthless piece of document, without the president snarling? Surprisingly, the promise by the chairman of the Nigerian Governors Forum, Dr Kayode Fayemi, that the governors are willing to obey the constitution, so that the strike can be called off, has so far been a fake promise.

JUSUN’s compatriot, the Parliamentary Staff Association of Nigeria (PASAN) has also been on strike to pressure the state chief executives to obey the same provisions of the 1999 constitution (as amended), with regards to money due to the state parliaments. Unfortunately for them, their principals, the state parliamentarians are too timid to look the state governors in their face and demand what is due to them under the law. So, PASAN as far as the state legislators are concerned are on their own in the struggle.

Perhaps, because the speakers of state Houses of Assembly mostly depend on the support of the governors to emerge and retain their positions, most of them are too cowardly to demand the financial consequences of the autonomy granted the parliament by the amended constitution. The result is that in some states we have governors who are no better that constitutional leviathans, with all the consequences for our fledgling democracy.

Of course, most governors enjoy the trappings of autocracy which the disequilibrium in the other two arms of the presidential system of government offer. Thus they treat the legislative and judicial arm as junior partners of the tripod, and have members of the parliament and judges grovel at their feet for what ordinarily should be their entitlement. As the Igbos say: “it is the man who holds the palm leaves that the goats follow”, and so the governors, instead of the constitution, have become the fons et erigo.

This absurdity is partly responsible for the political crisis afflicting our country, and governors who have interest in how history will judge them, must encourage abundant observance of the tenets and spirit of our constitution, knowing fully well that power is transient. In his book: The Presidential Constitution of Nigeria, Professor Ben Nwabueze, SAN, wrote: “Concentration of government powers in the hands of one individual is the very definition of dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic.”

On his part, Chief Obafemi Awolowo, SAN, GCFR said: “Under our constitution, the three organs of government are separate and distinct both in respect of the function which they perform, and of the functionaries who are entrusted with the performance of those functions.” In Myers vs USA, (1962) 272 US 52, learned Justice Louis Dembitz Brandeis held: “The doctrine of separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary powers. The purpose was not to avoid friction, but, by means of inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

This column commends the governors to the wise counsel of Allagoa, Ag. CJ, Rivers state in Amakiri vs Iwowari (1974) 1 RSLR 5; wherein he held:  “Rule of law in practical terms means no person however highly placed is beyond the law and it implies due consideration for others and a true fear of God. The courts are the watchdogs of these rights and the sanctuary of the oppressed and will spare no pains in tracking down the arbitrary use of power where such cases are brought before court …”

He continued: “The fruits reaped by respect for Rule of Law is stability, efficient administration and economic progress and satisfaction amongst the citizens. Persons in authority and government functionaries should by their good example command and not demand respect.” The averments made by the learned Justice above are sacrosanct, and if I may add, it is to the benefit of all and sundry that there is stability and progress in the society. As should be abundantly evident to all and sundry, those in government today needs the observance of rule of law, especially when power leaves them.

The crisis foisted on the nation by the avoidable strike by JUSUN and PASAN are huge. Apart from clogging the already clogged judicial dockets, many detainees are languishing in jail because the courts cannot hear their bail application. Even more importantly, the impression that might is right, being exhibited by the recalcitrant governors, is akin to the anarchist tendencies of the ravaging Boko Haram, kidnappers, terrorists and violent separatists.