Tag: Buhari’s

As I write these words on Friday, January 8, 2016, the Buhari administration is, technically and legalistically speaking, in contempt of court for re-arresting Sambo Dasuki after the former National Security Adviser had been granted bail by an Abuja high court judge.

Thus, the democratic and legal credentials of the administration in its prosecution of this case seem deeply compromised by the fact that the judge that granted bail to Dasuki explicitly ordered that he should not be re-arrested. Indeed, as revealed in a media chat that the President had in Abuja two weeks ago, Buhari seemed very much aware of the precarious situation of his administration on this matter of bail for Dasuki. Asked repeatedly at the media chat why Dasuki was re-arrested after the courts had not only granted him bail but had explicitly ordered that he should not be re-arrested, Buhari had no coherent answer to the questions posed to him. To the President, it is enough that it seems abundantly clear that Dasuki’s alleged crimes are not in the least “bail-able”.For this reason, the President was genuinely puzzled that anyone could expect his administration to stand by the decision to grant bail to Dasuki and his co-accused.

I think it is safe to assume that overwhelmingly, most Nigerians are with the President in keeping Dasuki in the custody of the EFCC in defiance of the bail granted him in the courts. However, the President and his supporters in this matter are in an extremely uneasy and perhaps indefensible position in the matter. For hovering over the matter is Buhari’s past as a military dictator who famously had maximum disdain for any legal, technical and factual obstacles to the achievement of his goals as a ruler. Indeed, to some commentators, the aura of the Buhari who promulgated the infamous Decree Numbers 2 and 4 of 1983 already fills the air. Decree Number 2 retroactively made crimes committed before its promulgation punishable, thereby rubbishing the universal legal principle that if an act was not a crime at the time it was committed, it cannot become a crime by any law that comes into being after the act took place. On its own part, Decree Number 4 of 1983 made any act or utterance that served to cause embarrassment to Buhari and any member of his military junta punishable, regardless of whether or not the act or utterance was true. It is with such decrees in mind that some commentators are beginning to wonder aloud that the Buhari who completely ignores and sets aside the bail granted to Dasuki by the courts seems ominously similar to the Buhari of Decrees Number 2 and 4 of 1983.

This is a very unhelpful development in the legal battles against corruption, the battles that are already in the courts and those that are looming on the horizon. At the very least, this development puts Buhari and his administration on the defensive: the looters, the barawos together with their lawyers, are now hypocritically parading themselves as the defenders of democracy and the rule of law while Buhari and his administration are being insidiously represented as purveyors of jungle justice and the logic of lynch mobs. Moreover, the courts whose decisions granting bail to the looters are being set aside are the same courts that normatively act in favour of looters, the same criminal justice system that, beyond the issue of the granting or withholding of bails, will decide the substantive cases against Dasuki and his co-defendants. Thus, it was and still is a grave error of strategy and tactics for Buhari and his administration to have played into the hands of this same criminal justice system which, alone on the planet, applies interlocutory injunctions and stays of proceedings to criminal cases precisely to make the trial of looters so interminably long as to effectively make their successful prosecution a rarity in the Nigerian judicial order. In other words, with a different choice of strategy and tactics by Buhari and his administration in the current legal battles, the question of the granting or withholding of bail for alleged looters – a relatively minor issue – would not have arisen at all. As a matter of fact and to get to the heart of this piece, the grave error of the President in this matter is that, wittingly or unwittingly, he and his staff chose the very worst of the three strategic options available to them in the legal front of the war against corruption. What are these options? And does Buhari know that these options exist? These are the trillion-naira questions the answers to which will prove fateful for a successful, transformative outcome for the current and future legal battles against corruption in our country.

Let us call the first option the revolutionary option. In the National Conference of 2014 set up by the Jonathan administration, there was a committee with the rather longish and clunky title of “Committee on Law, Judiciary, Human Rights and Legal Reforms” whose Chairman was a retired Justice of the Supreme Court, Justice George Oguntade. This committee had some of the brightest and most progressive legal minds in the Bar and Bench in Nigeria among its members. For this reason, it was quite significant that by a unanimous decision, the Committee recommended the setting up of a Special Anti-Corruption Court or Tribunal intended specifically for trying all cases of the looting of the Nigerian state and peoples. A key aspect of the structure and purpose of this recommended revolutionary tribunal was the removal of all the technicalities and niceties that notoriously and interminably prolong the prosecution of looters in Nigeria. The report of the Justice Oguntade-chaired Committee of the National Conference of 2014 is not in a secret vault in the National Archives at Abuja. It is a published and disseminated document in the public domain and is thus ready for actualization. All that this would require is a bill in the National Assembly that the ruling party with its sizeable majority could easily pass into law; and once it is signed by President Buhari, it would become the law of the land with regard to the prosecution of looters. In my layman’s estimation, the whole process could take less than one month.

The second option, though not as revolutionary as the tribunal recommended by the National Conference Committee on Legal Reforms, has the distinct advantage of actually being the law of the land in the matter of the prosecution of looters in our country. This law is none other than the so-called Administration of Criminal Justice Act (ACJA) of 2015 that was signed into law by former President Goodluck Jonathan in May 2015. Since I have written much on ACJA in this column I shall be brief and succinct in what I say about it in the present discussion. Thus, the crucial thing to bear in mind is the fact that two particular clauses in ACJA – 306 and 396 –have removed all the things that prolong and frustrate the prosecution of looters in Nigeria. Indeed, ACJA, though by no means the ultimate or final solution to all the problems endemic to the administration of criminal justice in Nigeria, it covers some of the most basic and notorious elements of miscarriage of justice against poor people in our country. At any rate, it is nothing short of a mystery why the Buhari administration has, so far at least challenged the refusal of our law courts to operationalize the principles and provisions of ACJA.

The third and final option is best called the status quo option. This is because it has been in force in at least the last sixteen years in this country. Again since I have written much about this option in this column, I shall be brief in my remarks about it. In essence, it was designed to make the successful prosecution of looters in our country next to impossible, so much so that in the last one decade and half, every single unambiguously successful prosecution of Nigerian looters has taken place not in our country but outside in other national judicial systems. Moreover, the very structure of wealth accumulation and success in rising to the top of the legal profession in our country rest fundamentally in the prolongation of the life of this status quo in the administration of criminal (in)justice in Nigeria. In plain language, lawyers become very, very wealthy, they achieve the much coveted status of “Senior Advocate of Nigeria” (SAN) by the continuation, indeed the perpetuation of this status quo.

For me, there is a clear indication of the probability that the Buhari administration will not be revolutionary at all in its “change” agenda in the incredible fact that the administration seems clearly unwilling or unable to adopt and implement the recommendation for a special anti-corruption tribunal by the Committee on Legal Reforms of the National Conference of 2014. In other words, if there was fire in the belly of the President in his declared war against corruption, the first thing he and his party would have done is take up that recommendation and institute a special anti-corruption tribunal. Well, leaving talk of “revolution” aside, what of reform, what of ACJA? Why has the administration been silent on and rather indifferent to the non-enforcement of the provisions of ACJA by the law courts of the country all the way to the Supreme Court?

It is an incompetent or ill-prepared General that goes into a battle with a lack of knowledge or understanding of the kind of enemy that he faces. The matter of granting or withholding of bail is, relatively speaking, a very small matter in the range of items of “enemy action” that the President will face in the law courts as the legal battles against the looters unfold. I predict with near certitude that the President and his administration will face far more brazen and outrageous enemy action than the granting of bail from judges in the months and years ahead. Thus, the President has no other choice than to change his strategy and tactics. The minimum he can and should do in this respect is to give his attention and energies to the implementation of ACJA, although what the times call for, what the nation and the world would like to see is the setting up of that revolutionary tribunal that was recommended by the Justice Oguntade-chaired Committee on Legal Reforms of the National Conference of 2014.

Biodun Jeyifo

bjeyifo@fas.harvard.edu

Nothing important happened today. Diary entry by King George 111 of England, July 4, 1776

The “mission accomplished” phrase in the title of this piece comes from perhaps the single most embarrassing statement not only of the presidency of George W. Bush, but of any modern United States presidency. On May 1, 2003, in an extraordinarily dramatic and triumphalist action, Bush landed on the aircraft carrier USS Abraham Lincoln in a fighter jet flown by the president himself.Alighting with maximum swagger and bravado from the cockpit of the fighter jet, Bush proceeded to announce to scores of journalists gathered on the battleship that the United States had dealt a crushing defeat to Iraq and the war between that country and America was over. He then uttered the portentous phrase that would haunt him for the rest of his presidency and beyond: “mission accomplished”!

Of course, as Bush and the world would later find out, the Iraq war was far, far from over in May 2003. As a matter of fact, both the military and civilian casualties of the war increased exponentially after Bush’s “mission accomplished” declaration. Indeed, this far from May 1, 2003 in January 2016, the Iraq war continues in the guise of the war against ISIS, the arch-jihadist terrorist group that operates not only in Iraq itself but throughout the Middle and Near Eastern regions. Thus, as a highly charged and resonant phrase, “mission accomplished” has come to represent one of the most embarrassing displays of a total lack of judgment and insight at a critical historical moment by a ruler in modern history. In the aftermath of Bush’s “mission accomplished” declaration the world has seen hundreds of thousands of Iraqis and Americans killed; hundreds of billions of dollars of American wealth diverted from vital social programs at home and genuine humanitarian causes abroad; and a seemingly endless quagmire of war, millions of displaced persons and permanent instability and insecurity in the Middle and Near East. Thus, underlying the phrase “mission accomplished” is a tragic irony that cautions us to be wary of the terrible price that the masses of ordinary humanity pay for the lack of foresight or insight or second sight of rulers.

Fortunately for our own Muhammadu Buhari, no similar phrase remains to haunt the embarrassment in the failure of the Nigerian president’s ringing prediction three months ago that by the end of December 2015, the Nigerian military would have completely wiped out the Boko Haram jihadists. This is not to deny the reality of embarrassment and loss of face to the presidency now that December 2015 has come and gone and Boko Haram is still very much around and wreaking havoc. Indeed, there is a further embarrassment to Buhari in the fact that at the end of December 2015 not only was Boko Haram still committing deadly mass homicides across the country’s Northeast region, Buhari was telling Nigerians and the world that his administration was willing to negotiate with leaders of the jihadists over the abducted Chibok girls if credible leaders of Boko Haram could be identified and authenticated. All these factors notwithstanding, Buhari can take some comfort in the fact that not too many people in Nigeria and the world at large took the president’s prediction seriously. In other words, while in May 2003 the world believed and took Bush’s “mission accomplished” declaration seriously, in December 2015, nobody is surprised that Buhari’s prediction bummed completely. As a matter of fact, Buhari himself seems wondrously unembarrassed by the failure of his prediction. How else can we explain his declaration earlier this week at the tail end of December that his administration was willing to begin negotiations with the leaders of Boko Haram, the same Boko Haram that was supposed to have been completely wiped out by now?

I suggest that even if very few people expected that Boko Haram and its insurgency would have become a thing of the past by the end of 2015, there are many lessons to learn from Buhari’s apparent lack of embarrassment that his prediction has not only proved wrong but has indeed been rubbished by Boko Haram itself. Unfortunately, these lessons are hard, bitter, and potentially tragic for the masses of ordinary Nigerians.Since I wish to be very clear on this particular point, I crave the reader’s indulgence in taking some time and space to give a profile of the essential point I am making in this piece about political rulers and their capacity to exercise sound judgment and insight in their confrontation with historical crises and the challenges that they pose to the society, the polity and the economy.

Now, Boko Haram happens to be only one among a slew of daunting crises that the Nigerian nation and peoples face at the present time, though of course it is one of the most urgent and horrific of these crises. If we take Buhari’s failed prediction about the end of Boko Haram as sort of symbolic or symptomatic, the possibility arises that the President and his administration might also be wrong or mistaken in their predictions or projections on when Nigerians “will smile”, will experience relief from the economic and social ravages that they face at the present time. For instance, in his war against corruption, Buhari has also famously ‘predicted’ victory long before any concrete and substantial results have been achieved and even as corruption is striking back with all its tentacles in the Nigerian judicial, legislative and administrative orders. Another example can be found in the war to curb the monumental waste and squandermania in governance and administration in Nigeria at all levels, federal, state and local. Again, Buhari has vowed to successfully carry out the badly needed reform and reorganization in this sector of our public finances. But once again, we find here that the projection of victory or success is, to say the least, very premature. One illustration of this is the fact that though the Ahmed Joda Transition Committee that the President himself set up recommended a drastic reduction in the size of the Federal Cabinet, Buhari ignored this recommendation and has put in place a cabinet that is actually larger than Goodluck Jonathan’s cabinet. Please note, dear reader, that in all of these cases a lot of hardship and suffering of the Nigerian peoples is bound to happen if the projections and predictions of the President and his administration fail.

At this point in the discussion, it is necessary to state emphatically that these observations and reflections are cautionary, not predictive; they are speculative, not alarmist. In my considered opinion, President Buhari’s ‘predictions’ and projections – from Boko Haram to the war on corruption and from the reduction of the cost of governance to the reduction of the downstream cost of petroleum products to the Nigerian masses in their tens of millions – suffer from a vastly exaggerated view of what presidential will and pronouncements can achieve. Nowhere is this more apparent than in the present stalemate between the Presidency and the law courts over the granting of bail to Sambo Dasuki and his co-accused in the Dasukigate arms procurement scandal. Understandably, the President is very upset that the courts are granting bail to the former National Security Adviser and his co-accused, in an act that appears to Buhari to be in defiance of his will and pronouncements on the matter. While this columnist is strongly on the side of the President in the matter, it does strike me as very odd, very disappointing that the President did not anticipate and prepare himself and his administration for this unquestionable favoritism of our law courts toward looters.

Ours is a constitutional, democratic and elective presidential system and for this reason, there are considerable constitutional and institutional constraints on the sovereign power and authority of the presidency. But throughout the sixteen years of the rule of the PDP, presidential power in our country was practiced and dispensed as if its sovereignty was as all-pervasive, all-encompassing as that of a feudal monarch. Buhari especially but also his party, the APC, seem intent to continue the perpetuation of this pseudo-imperial presidency. Of course Buhari, at least so far, has given every indication that he intends to use this vast concentration of presidential authority to carry out much needed reforms that will redound to the benefit of the Nigerian peoples. But as we have seen in this piece, the realities that Buhari faces are much too complex for and resistant to the reductive simplicities of Nigerian presidential power and authority.

The sentence that stands as the epigraph for this piece comes from European history at the precise moment when feudal monarchical rule was metamorphosing into the form of the modern bourgeois republican state. Apparently, George 111 could not or did not see this transformation taking place gradually but inevitably. Hence, on July 4, 1776, the very day that the American Declaration of Independence was made, the English king made the famous entry in his personal diary: “Nothing important happened today”.I locate Buhari at a midpoint between this diary entry of the English king and George W. Bush’s “mission accomplished” declaration. This is because Buhari is not as totally detached from historical realities as the 18th century English king, at the same time that he is not as aggrandizingly embroiled in the maelstrom of history as Bush. In other words, King George stood at the center of a power structure whose slow but inevitable decline posed little or no immediate danger to his person and his status; Bush occupied a location of global power in which America was yet to learn and absorb the limits of its global influence; Buhari occupies a conception and a practice of power in which decline at home and abroad considerably undercuts if not nullifies pretensions to sovereign presidentialism. Unfortunately for us, Boko Haram proved that it will take far more than a presidential pronouncement for the group to go out of existence, just as the law courts are proving that they are impervious to Buhari’s presidential will and pronouncements.

I doubt that Buhari will easily and quickly learn to see the limits of presidential power as not the end but the beginning of wisdom. I hope that I am wrong in making this assumption for if I am right, the President will find it hard to gather and deploy the popular energies needed to defeat forces like Boko Haram, the judicial redoubts of looters and the fortresses of waste and squandermania in our country. Are there hard and bitter lessons to learn ahead of us? Yes, but hopefully we will learn well from them.

Biodun Jeyifo

bjeyifo@fas.harvad.edu