One of the more puzzling aspects of the debacle the annulment precipitated is how Professor Ben Nwabuewe, Secretary for Education – yes, Education – in the Transitional Council mandated to oversee the successful completion of the final phase of the transition programme, morphed into a legal strategist for shaping the instruments by which military president Ibrahim Babangida eviscerated it.
That mandate was just one of the many fictions that undergirded Babangida’s hidden agenda. As Nwabueze himself has noted, no more than two of the 106 decrees churned out between January and August 23, 1993 were ever referred to the Council for discussion, comment, advice, or even for its information.
The two, we learn from Nwabueze, did not include the decree that annulled the June 12 1993 presidential election and the one that sought to emasculate the news media. Council members had learned of them from the news media and other sources, just like the rest of the public.
“Judged by its exclusion from law-making,” Nwabueze has written, the Council’s role in government was one of “almost total irrelevance and insignificance.”
My own reporting at the time, and the reporting of The Guardian’s correspondents in Abuja, had led me to the same conclusion. Concerned as a long-standing admirer that Nwabueze’s reputation as a legal scholar of global stature and distinguished public servant might be damaged by his involvement in the juristic and political travesty unfolding in Abuja, I sent him a note expressing my fears about where it was all leading and how it might end.
Despite his busy schedule, he replied promptly, saying that events had indeed taken a turn that the nation did not expect, and that the only thing left for us was to pray.
I was expecting him to resign.
I did not know that he was busy preparing, with help from the Federal Attorney-General Clement Akpamgbo, chairman of the Law Reform Commission Justice P. K Nwokedi, and two members of the Commission, Dr Epiphany Azinge and Professor Egerton Uvieghara, the instruments for consecrating the annulment.
Even so, it is to Nwabueze’s penetrating insights that we owe what we know of the military president’s state of mind and behavior as the house of cards he had spent eight years constructing and promoting as a fortress was collapsing all around him.
Babangida, he wrote, “left a rather strong impression of a man forced to quit against his will, of one un-reconciled to quitting in the last days of his rule and in the face of defeat, he cut the figure of someone unwilling to reconcile himself with composure to the adverse torrents of events, of an angry and bitterly disappointed man.”
More tellingly, Nwabueze wrote of Babangida: “His mind, his motions, and his actions seem to have become somewhat disoriented, and no longer governed by disinterested patriotic considerations. In the event, he quit in a rather undignified and unceremonious manner. . .”
Paradoxically, it is also to Nwabueze that we owe “June 12, 1993 Election: Problems and Solutions,” probably the most sustained, even if tortuous and aridly legalistic defence of the annulment. Because that book furnishes the context for deconstructing his recent stricture on the Federal Government’s recognition of Moshood Abiola as winner of the 1993 presidential election and proclamation of June 12 as “Democracy Day” in place of May 29 that had been conscripted for that purpose, I will deal with it at some length here.
Nwabueze’s point of departure is the strange proposition that justification or condemnation of the annulment must be based on the “officially announced reasons” for the annulment and nothing else. The great English jurist JL Austin who defined law tersely as the command of the sovereign could not as subscribed to this instance of forensic brutalism.
At any rate, here, as I understand it, is what Nwabueze calls a formal or “lawyer’s case” for the annulment.
The election was annulled because it was held in violation of a subsisting restraining order. “A pronouncement of the courts, no matter how perverse, or blatantly wrong,” he states grandly, “establishes the law unless it is and until it is reversed on appeal.”
“The rule of law required,” Nwabuze continues his lawyer’s case, “that the Federal Government obey the order of June 10 stopping the election, and of June 15 suspending announcement of results, and June 21 declaring the election illegal.”
The decision of the Ikpeme court was clearly wrong, he grants, its jurisdiction having been ousted in unequivocal terms by decree. The affidavit deposed by Abimbola Davis for Arthur Nzeribe’s Association for a Better Nigeria contained no substance that warranted such an order, most of the averments being “sheer irrelevances and frivolities.”
Still, Ikpeme’s injunction was the order of a superior court of record while it subsisted, and neither the National Security and Defence Council nor the National Electoral Commission had a right to disobey it. The proper thing was to comply while taking steps to have it vacated on appeal.
Two principles, Nwabueze said, were in conflict in the election debacle: the rule of law, and the right of the electorate to choose those who would govern the polity, and the Federal Military Government was “justified in observing the former to ensure the full realisation of the latter.”
He joins issues with the High Court of Lagos State, Justice Dolapo Akinsanya presiding, which voided the Decree 61 setting up the so-called Interim National Government, on the ground that at the time he signed it into law, Babangida had by the earlier Decree 59 divested himself of the power to make laws.
Then, a Decree 62 suddenly emerged, purporting to have restored Babangida’s law-making power of which he had divested himself through Decree 59. The courts held that the decree was a forgery. Not so, argues Nwabueze; the decrees were intended to come into effect at the same time, and their numbering was “wholly immaterial.”
He concedes that the “lawyer’s case” is not one the ordinary man can accept. He acknowledges the need to go behind the formal reason to seek other factors that might have led to the annulment, whether they were corruptly or perversely contrived, and if so, by whom. And he accepts the burden of doing so.
But he does not deliver.
He merely distributes blame, asserting that the crisis was caused by the political class jointly with Babangida, the judiciary and some members of the legal profession, and that its prolongation had resulted from “sheer blind intransigence on the part of the “political class,” especially Abiola, and his supporters in NADECO, the labour movement, and other civil society organisations.
Nwabuze’s “lawyer’s case” case rests on the assumption that there were no reasons for the annulment other than those dredged up by Babangida. However, given the foul distemper in which Babangida retreated from Abuja, “the impression of a man forced to quit against his will, of someone unwilling to reconcile himself with composure to the adverse torrents of events,” to quote Nwabueze himself,” it is plain that Babangida annulled the election because he did not want to quit, and that all the rhapsodising to the rule of law was just a fudge.
If fidelity to the rule of law was what concerned the authorities above all else, why were the decrees annulling the election and voiding the final phase of the transition not open to legal challenge? How did observing the rule of law by voiding the election help ensure “full realisation” of the right of the people to choose those who would govern them, as Nwabueze has asserted?
Nwabueze claims that Babangida had left it to Nwosu to decide whether to proceed with the election or not. He goes on to echo insinuations that Nwosu had a vested interest in the election because he and the National Electoral Commission had been compromised, adding that if the allegation was true, “the desire for self-enrichment led to a string of measures that plunged the nation into chaos.”
But was it true?
Here, Nwabueze’s characteristic grace, generosity and even-handedness are conspicuously missing. He drops grave allegations deftly, recycles gossip and moves on quickly, without asking the hard questions that should be asked under the circumstances.
Here is one such question that was screaming to be asked: If indeed, as Babangida claimed, he had “proofs” and documented evidence” of offer and acceptance of bribes that compromised the election, surely that would have constituted iron-clad evidence for moving the courts to void the election and punish those involved in its execution. And that recourse would have accorded eminently with the regime’s avowed commitment to the rule of law.
Why was that path not followed?
“Justice” hardly figures in Nwabueze’s “lawyer’s case,” which is pivoted entirely on the rule of law, as if that is an end in itself. He dismisses the annulment as just one instance in a long line of injustices that would have to be addressed together, which is at bottom a recipe for doing nothing.
Like that personage of whom it has been said that he loved humanity but could not stand humans, it is almost as if Nwabueze loves the rule of law so much that he will not allow its march to be interrupted by justice.
Nor does Nwabueze even stick with his lawyer’s case in support of the annulment. He availed himself of the opportunity to settle ethnic score. Outside the Yoruba areas, he writes, most people who voted for Abiola in the South did so to end the North’s monopoly on power. The annulment was therefore seen in the South, rightly or wrongly, as lending aid and comfort to the North’s monopoly on presidential power.
The monopoly of presidency by the Muslim ethnic group of the North has as its correlate, Nwabueze continues, “the ambition of the Yoruba to monopolise other positions in the federal establishment.” That ambition, he continues, poses a serious danger to the good government and unity of Nigeria.
The Yoruba man may seem nice and friendly, but “they have no sense of fraternity with other groups in Nigeria when it comes to federal appointments,” according to Nwabueze. “They see nothing wrong in monopolising all positions in federal establishments, from messenger to chief executive. To them, that is as should be, the natural order of things. Any other non-Yoruba in their midst in such an establishment is considered an intruder. Yoruba becomes a medium of communication in which government business is conducted.
Continuing his race-baiting, Nwabueze said June 12 made Nigerians outside the Yoruba West fearful that after two terms – or eight years – of a Yoruba president, many federal establishments would have become thoroughly “Yorubanised.”
“The Yoruba,” Nwabueze warns darkly, “must make up their minds whether they really want the various ethnic groups to continue to be (sic) together under a federal arrangement with its implication that federal appointments should be equitably distributed among the component groups as equal partners in the federal union. They must give up their monopolising ambition, for it is subversive of true federalism.
It is almost as if, in his mind, the Yoruba are the trouble with Nigeria.
In contrast, Nwabueze says of his Igbo kinsfolk that they are “truly a democratic and fair-minded people, always prepared to concede to others the right to share equitable what belongs to all. Their sense of fraternity and fairness always inclines them to consider others in the matter of federal appointments and the distribution of common benefits
Even when articulated by the usual ethnic warriors, this kind of jingoism is reprehensible.
When espoused by the nation’s pre-eminent legal scholar, an intellectual of global stature, leader of a public-spirited and well-respected group that calls itself rather portentously “The Patriots,” withal a personage a person who should rightly be regarded as an elder statesman, at a time the Yoruba were under siege and the country was teetering on the brink of violent dissolution, it would be courteous to call it odious.