The Nation Newspaper

Tag: legality

  • Legality of Executive Order on seizure of assets

    SIR: It is trite that the power to issue executive orders is incidental to the powers vested in the president in a presidential democracy like ours. In the USA, the power is said to have been impliedly provided for in Article 2 of the US Constitution. Similarly, in Nigeria the power can be said to have been derived from Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended

    Meanwhile, it is obvious from the said Section 5 that while the powers of the president above are wide, same powers along with the incidental executive orders are subject to the specific dictates of the constitution such as provisions on fundamental rights therein. Accordingly, where the exercise of such executive powers conflicts with fundamental rights, it shall be null and void and of no effect. See Ojukwu v. Governor of Lagos State (1986)

    According to President Buhari, the essence of the Executive Order No 6 of 2018 is “to restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to prevent such assets from dissipation…” The implication of this order is that the moment a person is accused of corruption, rightly or wrongly, with cogent evidence or none, the assets of such person, tangible or intangible, can be seized without any court order. Similarly, the accused may not have the opportunity to approach the court to vacate the seizure until the investigation or trial is concluded even if it takes ages; neither would he be able to sell, lease, mortgage or otherwise raise earnings from the assets, even if the purpose is to raise money to hire lawyers to defend him at trial.

    The order is also capable of being easily used to cripple the opposition and critics by simply alleging them of corruption, freezing all their assets and means of livelihood, while subjecting them to indefinite criminal investigation or as long as the government remains in power.

    Given the above inevitable implications, can the order be said to be constitutional? Can it be said to be devoid of violating the fundamental rights jealously safeguarded by our sacrosanct constitution? Freezing, seizing or otherwise dealing with the assets of an accused person by the government is indisputably a limitation of the accused full enjoyment of his fundamental rights, which include right to be presumed innocent until found guilty by a competent court of law, right to defend himself, personally or by a lawyer of his choice, right to adequate facilities to prepare his defence, right to fair hearing and right against his property being compulsorily taken possession of.

    It is settled law that a limitation to a human right shall not be lawful, except it is necessary, proportional and is not capable of rendering the enjoyment of such right illusory or meaningless. Sections 24-34 of the EFCC Act and provisions of other relevant statutes have already provided for a democratic procedure for freezing/ seizing corruption related assets with the aim of preserving them, which procedure gave an accused person the opportunity of fair hearing in the matter in compliance with Section 36 of the Constitution, particularly 36(2)(a).

    The questions are: if there is a statute of this nature, with relevant constitutional safeguards, why then, this executive order, which gave unlimited discretion/powers to executing authorities? An order capable of causing array of injustices, hardships and negative implications as earlier identified above? If for instance, an accused person is, before and throughout his trial, subjected to the stated inhuman injustices and punishments, what meaning or value does his right to presumption of innocence have left?

     

    Ibikunle, Isaac M., 

    <ibikunleisaacm@gmail.com>

  • Politics, legality of June 12 declaration

    The legality of President Muhammadu Buhari’s recent declaration of June 12 as the new Democracy Day in Nigeria and conferment of GCFR, the country’s highest honour, on the late Chief MKO Abiola have become subjects of controversy. Associate Editor, Sam Egburonu, Assistant Editor, Dare Odufowokan, Sunday Oguntola and Abdulgafar Alabelewe, spoke to some legal minds and leaders and report

    ALTHOUGH many Nigerians have praised President Muhammadu Buhari over his recent declaration of June 12 as Nigeria’s new Democracy Day and his decision to honour the heroes of the political struggle, including the late Chief MKO Abiola, there has been heated debate over the legality of the actions. Also, some observers, including Buhari’s opponents have alleged political motive, arguing that the timing could only be informed by a scheme to achieve some political mileage ahead 2019 Presidential Election.

    Professor Ango Abdullahi, a prominent voice from the North and one time Vice Chancellor of Ahmadu Bello University (ABU), Zaria, for example, said Buhari’s action is “political opportunism,” even as he insisted the honour was belated.

    “If the President’s declaration is intended to honour Chief MKO Abiola, I think, it is belated.

    “So, I consider it to be a political opportunism. If there is any democracy day Nigerians should worry about, it should be 1st of October, which marks our Independence Day.

    “So, I think it is political opportunism because it is belated. If not, why didn’t Obasanjo do it, why didn’t Yar’adua do it or even Jonathan?

    “We have had three regimes since MKO’s death and nobody had the right thinking cap to remember the man or to honour him or remember the circumstances of his death until now? That is why I said it is first of all belated and in my own thinking a political opportunism.” He said.

    He also posited that even May 29 ought not to be Nigeria’s Democracy Day.

    According to him, “why was May 29 Democracy Day in the first place? It was creation of Obasanjo. Because that was the day power was handed over to him. But, must that be Democracy Day, when we already have October 1st? But, because Nigerians always like to go on holiday, that is why they accepted Obasanjo’s May 29, which as far as I am concerned is the marking of his own history in the political development of Nigeria.”

    His response did not however tally fully with the reaction of Arewa Consultative Assembly, which supported the president’s action.

    However, in their reaction, Northern Leaders and Stakeholders Assembly, (NLSA), said Buhari’s declaration of June 12 as the new date for Democracy Day in honour of Abiola has political undertones.

    But a lecturer in the Department of Law, University of Lagos (UNILAG), Barrister Wahab Shittu, told The Nation that the declaration of June 12 as Democracy Day and conferment of posthumous honours on Abiola and Gani Fawehinmi were in order.

    According to him: “Both actions are legal because the Honour Acts and Holiday Acts say the President has the prerogative to declare any day as public holiday and give national honours to whoever he deems fit.

    “The honourees can also send representations to receive the awards on their behalves. The declaration of June 12 as Democracy Day is a result of popular clamour over the years. It is consistent with people’s yearnings and agitation for years.

    “We all know Abiola made huge sacrifices for the democracy we all enjoy today and is a fitting awardee. I think we should all commend the administration for taking the measures, which are clearly in order.”

    On whether the moves could have been politically-motivated, he said: “Whatever motivation is inconsequential and immaterial because people will always read emotives to whatever action one takes.

    “What is important is to find it the actions were in response to public agitations and in the interest of all. Once that has been proven, whatever motivation people want to read into it is immaterial.”

    Can the dead get GCFR?

    Meanwhile, as mixed reactions continue to trail the announcements by Buhari, a new twist has been introduced into the debate over whether it was appropriate for the federal government to honor the late Abiola with Grand Commander of the Federal Republic (GCFR) when some observers, including Dino Melaye, the senator representing Kogi West Senatorial District in the National Assembly, said a dead man cannot be bestowed with the highest honour in the land.

    Citing Chapter 43(2) of the National Honours Act on Thursday, however, Melaye had argued that the Act does not allow for conferment of the honours on non-Nigerians. He pointed out that Abiola is dead and that that automatically “makes him not to be a Nigerian.” He also said, “I am a democrat, I believe very sincerely that Chief M.K.O Abiola deserves even more than the president has pronounced because he is a true patriot, philanthropist and should be so decorated.

    “But Mr. President, we are governed in the country by the constitution and extant laws. No matter how beautiful a situation is, the law of the land remains the law of the land.” Subsection 2 of the Act, he said, says a person shall be eligible for appointment to any rank or holder unless he is a citizen of Nigeria. A dead man is not a citizen of the Federal Republic of Nigeria. We should not be emotional about this. The law remains the law,” he said.

    However, Melaye’s interpretation has been faulted by some Nigerians. Some analysts cautioned him against introducing a strange argument not known to have a precedent in any law court. But the Senator insists that the Act provides that such honour be conferred on the recipient in person and since Abiola is dead, he cannot receive the award. According to him, a dead man cannot be so honuored.

    The Nation therefore sought the views of prominent lawyers to explain the legality or otherwise of the posthumous awards and presidential declaration on Democracy Day. For example, Femi Falana, a Senior Advocate of Nigeria (SAN), in a chat with The Nation, faulted Melaye’s argument and insisted that no known law of the country was broken by the President with the national honor conferred on Abiola and others. The pro-democracy activists even added that the President has the constitutional right to make the declarations he made on Abiola and June 12 without seeking the consent of the National Assembly.

    “No part of the National Honours Act prohibits or restricts the President from exercising the powers to confer national honours on deserving Nigerians, whether they are dead or still alive. It is correct that paragraph 2 of the Honours Warrant made pursuant to the National Honours Act provides that ‘a person shall be appointed to a particular rank of an order when he receives from the president in person, at an investiture held for the purpose.

    “But in the same warrant, paragraph 3 thereof has given the president the unqualified discretion ‘to dispense with the requirement of paragraph 2 in such manner as may be specified in the direction. Therefore, if the national award conferred on Chief Abiola cannot be received by him in person for obvious reason, the President is empowered to permit his family members to receive same on their behalf,” he said.

    However, towing Melaye’s path, contrary to Falana’s argument, is former Chief Justice of Nigeria (CJN), Alfa Belgore. The highly respected jurist, in his own argument had said that the award of Nigeria’s highest national honour on late Moshood Abiola is illegal. Belgore, who was CJN from 2006 to 2007, said the national honours cannot be awarded posthumously, let alone the GCFR, which is the highest honour in the land. “It is not done. It is for people living. The only thing they could do is to name a place after him, but national honours award, no.”

    Osun State Governor, Rauf Aregbesola, in his reaction disagrees with both Melaye and Belgore. According to Aregbesola, history will be kind to Buhari for recognising June 12 as Democracy Day and honoring Abiola, though dead. He said the President’s action is commendable and will always be cited in history as a patriotic and courageous effort to heal a serious wound.

    “We are glad therefore that President Buhari has taken this bold step and set the record straight. History will be kind to him for this. I commend him for this uncommon courage and demonstration of leadership. President Buhari has secured for himself an incomparable position in history for surmounting the courage to take this historic step of recognising June 13 as ‘Democracy Day’ and honouring Chief Moshood Abiola posthumously.

    “It is most regrettable that the election was annulled and Chief Abiola clamped in illegal detention where he later died. Successive administrations had suppressed the significance of June 12 and resisted every admonition to recognise the date and honour Chief Abiola. On that day, Nigerians in their heterogeneity overwhelmingly voted for a candidate whose very essence was in defiance of religious, ethnic and regional categorization,” he said.

    But Dr. Soni Ajala, a legal practitioner based in Abuja, in his reaction warned that “the politics of the issue of the posthumous award of Grand Commander of the Federal Republic (GCFR) must not be muddled up with the core legal issue of the politics of the award.” He told The Nation that “much as all patriotic Nigerians applaud Mr. President, Muhammadu Buhari, for the bold step of recognising the supreme sacrifice of Chief MKO Abiola as the acclaimed winner of the June 12, 1993 presidential election, there are landmine legal puzzle that cannot even be cured by administrative publication in the Federal Government Gazette by the Hon. Attorney General of the Federation as directed by President Buhari.”

    Ajala maintained that for the action of Mr. President to acquire what may be described as legal security, there would be need to first de-annul the annulled June 12 election. As he puts it: ‘Can something be placed on nothing and it’ll be expected to stand?

    By lexical and legal connotations, the word ‘annulment means void, completely erased and never existed. By necessary implication of the subsisting decree of the National Defence and Security Council (NDSC) promulgated in 1993, de jure, there is no valid basis for the actions/gestures of Mr. President as what is/was annulled remains annulled until de-annulled.”

    Going beyond the issue of legality, Professor Ango Abdullahi, a prominent voice from the North and one time Vice Chancellor of Ahmadu Bello University (ABU), Zaria, in his reaction, said Buhari’s action is ‘political opportunism,’ adding that the honour was belated.

    Abdullahi said “if the President’s declaration is intended to honour Chief MKO Abiola, I think, it is belated.

    “So, I consider it to be a political opportunism. If there is any democracy day Nigerians should worry about, it should be 1st of October, which marks our Independence Day,” he said.

  • Legality of “special courts” for corruption cases

    ON Monday, September 18, the learned Chief Justice of Nigeria (CJN), Justice Walter Nkanu Samuel Onnoghen, at a special session organized to usher in the 2017/2018 Legal Year and to swear in 29 new Senior Advocates of Nigeria, ordered the Chief Judges of courts in Nigeria to designate at least one court in their jurisdictions as a special court solely for the purpose of adjudicating on corruption and financial crimes cases. It is meet and proper to state, to begin with, that the piquant-witted and eminent jurist, Justice Walter Onnoghen, is a great patriot, who is actuated by the urge to rid the judiciary and Nigeria of corruption and corrupt elements. It is also apt to state, in view of my stand in this article that I believe that corruption, ethnocentricity and religious bigotry are easily the worst enemies, the bane, of the socio-economic, political and cultural development of Nigeria. As far as this writer is concerned, stiffer penalties than are provided for in the various extant statutes in Nigeria should be meted out to anyone found guilty of corruption, brazen nepotism and religious zealotry, issuing forth in violence. The days of the Crusaders of the 11th and 12th centuries and of the Jihadists in the 7th and 8th centuries should, in the 21st century, be consigned to the waste-paper basket of sordid history.

    But the thrust of this write-up is the riot act read by the learned CJN to all the courts in Nigeria to set aside at least one court within their jurisdictions to try only corruption and other financial crimes cases. All the courts of superior record in Nigeria are established by subsection (5) of section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Subsection (4) paragraph (a) of section 6 thereof allows the National Assembly and State Houses of Assembly to establish courts other than those established by subsection (5) of section 6, provided such courts have subordinate jurisdictions to those established by section 6 (5). It would be clear from the foregoing provisions that only the Constitution and Parliament (Federal or State), NOT the CJN, Federal or State Chief Judges, can establish a court (of superior or inferior record).

    Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulates, inter alia as follows: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” Please, note the phrase “…by a court or tribunal established by law…” Section 46 (1) of the 1999 Constitution unequivocally provides that “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.” No CJN or Chief Judge can change that or any provision of the constitution by denuding a particular High Court “within the jurisdiction of a Chief Judge” of powers conferred on it by the Constitution. Under subsection (2) of section 46, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section…” That is the command of the uncommanded commander! It would, therefore, be the height of unconstitutionality for a Chief Judge to single out a particular High Court to try only corruption cases. You either establish new special courts or tribunals, subject to the provisions of section 6 (4) (a) or you leave the existing courts severely alone with their constitution-given jurisdictions; otherwise, you would be amending the constitution unilaterally!

    In clear terms, section 257 (1) of the constitution delineates the jurisdiction of the High Court of the Federal Capital Territory as having power “to determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligations or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.” The provisions of section 272 (1) of the constitution on the jurisdiction of State High Courts are on all fours with those in section 257 supra.

    The provision in section 46 (3) that “The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section” (underscoring mine) cannot, and should not, be construed to mean a usurpation, by either the CJN or any other judge, of the constitutional powers conferred only on the National or State Assembly. Rules of practice are orders made by courts for the purpose of regulating the practice of members of the Bar and others; they are rules for the transaction of the business of the courts, which rules may be altered, changed, rescinded or repealed. While they are in force, they must be applied to all cases which fall within them; they can use no discretion unless such discretion is authorized by the rules themselves. Civil or Criminal Procedure Rules which the CJN is permitted to make for superior courts of record are cases in point. We must note, however, that, in contradistinction to the rules and procedures of court which section 6 (3) talks about, the establishment of a High Court, any court, is ultra vires the CJN and remains the preserve of the Constitution and of parliament (Federal or State).

    “Rules of Court”, according to John Bouvier, the learned author of “A Law Dictionary: Adapted to the Constitution and Laws of the United States” (1856), “cannot, of course, contravene the Constitution or the Law of the land” (3 Pick. R. 512; 2 Har. & John. 79; Misso. R. 98. 11 S. 131; 5 Pick. R.187), a statement of fact.

    The pyrotechnical statement and body language of Justice Walter Onnoghen, are a predictable augury that the “independence and impartiality” of a Federal or State High Court singled out in the manner suggested by him cannot be secured. Such a court, specially disengaged from the body of the regular courts to deal with corruption, is not unlikely to be a ready tool in the hands of the federal government and its Attorney-General to pillory opponents of the ruling party, even before trial commences!

    The CJN should encourage the state and federal Chief Judges to computerize their court systems and give a time limit to the trial of corruption and financial cases, stipulating a more emphatic order in the Practice and Procedure of courts than is given in section 142 of the Electoral Act, 2011, that every corruption and financial matter must be given not just accelerated hearing and have precedence over all other cases but should be concluded within a specified time. He must then warn lawyers, through the NJC, against frivolous adjournments, otherwise, the CJN may have to import, into the “special courts”, some strange beings from the outer-space! “Special courts” should have no place in a democracy.

  • Political culture, legality and terrorism

    The    spirit   and  practice of the laws governing  various  political  systems  as well  as the reaction of constitutional  institutions to  each other  in the interplay  of politics,  arrest  our  attention today. Whether  it is in the refusal of the  Nigerian Customs  boss to appear  before the  nation’s law  makers  or the judge stopping US President  Donald  Trump  from  carrying out his executive  orders on the ban on Muslim  majority  nation’s  citizens  entering the US   I   state  categorically  that the two  issues  are birds of the same feather even though they  occur  in different locations  but  are tempered  by the political  culture  of such environment. The  same  can  be said  of the very  British  approach  in terms of law  and order in the handling of this  week’s  lone terrorist crushing  of pedestrians on Westminster  Bridge and the stabbing of  a police  officer  on the premises of the oldest  Parliament of Democracy in the world in London. As well  as the testimony of the FBI  boss  James  Comey  in the US  Congress  that the  Russians  were loud  about  their cyber  hacking to influence  the  US  2016  presidential  elections  because  the Russian  president  hated Hillary Clinton  so much  and wanted her opponent  to  win  that election.

    Let  me  now usurp  as it were the much  respected powers of any  Supreme  Court  to announce judgments and give reasons or  whys  and wherefores  later,    by    stating   my stand  on these   issues   and    minimizing    your  suspense,   by   giving my reasons    later.

    Starting with  the Nigerian  Customs  boss I  postulate   that   it is  unthinkable  to  have a    boss  of a para military  establishment    like    the  Customs unwilling  to appear anywhere,  not even  before the Senate, without  his  uniform.  Next, the  legal  obstacles  that the new US president  faces are more  political than legal  and  cannot  stand in the face of unpredictable and unexpected security threats   such   as the US  lap  top ban  on    some  airways, joined  by the  UK where the latest  macabre terrorist attack  took place this week. That   attack  which  closed  the House  of Commons albeit  for  one day showed  the  clear   difference between the cool and calculating  way  the British  handle terrorism in sharp contrast to the noisy way  the Americans  do  similar  things   on  the excuse  of transparency  and freedom  of expression  at  the expense of security . Lastly   I  think  the  US FBI  boss  Comey   has spoken inadvertently  from  both  sides  of  his  mouth   and  in  the process  shaken  the credibility  of the US intelligence community and  made  it a laughing stock for  the Russian  president  Vladmir   Putin ,who was a spy, a  career KBG agent  in the former  USSR  before he became President  of  Russia. Let  me  now  proceed  with my analysis  of these events regardless  of how welcome or  annoying  my verdicts  on them  appear  to you  for  now.

    Starting  with  the refusal  of the Nigerian  Customs boss  to  appear in  uniform before the Nigerian  Senate, I  see  a clear  case of  abuse  of  office on the part of the Custom  boss  and a clean case of lack  of  respect for  revenue  collection  and border  monitoring  on the part  of government that  appointed  him. Customs  job  has always  been a uniform wearing profession that is paramilitary  because the personnel  bear arms  to desist  and arrest smugglers,  real and potential.  Such  a para military  force should not be led by a man with disdain and contempt  for their uniform  which  should be a source of pride for such men under  arms. To  seek  refuge now in a court  case is not only  funny  and   handy  for   not appearing in uniform   before  constituted   authority    and  indeed  as a matter  of courtesy  for the highest  office  in the Customs    profession,    it is also a clear case  of making not only an  ass of the law  but a   very  mischievous   and dubious monkey  of it. It  is very serious  breach  of public  discipline and mode of public  appointments and government should  find a way    to  regain   public respect and trust which  this event  has shaken  very  badly.  I recall  that  even in  the military regime when  M D Yusuf    was appointed the Inspector  General  of  Police  from  being head of the CID  where  he dressed in  mufti, a police  uniform  was found for him at  Dodan  Barracks  before  he  was sworn in  as the   new IGP   then  . How  come then that the head  of  Customs does  not only not have a uniform  but  is refusing to don one to appear  before an institution of the same state  with the requisite authority  to  make that very  warranted  request ? It  is quite unbelievable.

    We  go now  to  the legal  battles  to prevent the new US president  from carrying out his executive  orders on  the migrants  ban on some majority  Muslim  nations. It  is my  contention that the US president  is best placed to make a decision on  such  matters based on intelligence reports  as   he cannot operate in a vacuum. To use the law to stop him is to prevent him from carrying out his official  responsibility  on American  security. His  opponents should know  that the buck  stops on his table with regard to security  of  all Americans  and such  opponents should know that  their  freedom ends where  his nose  begins   on US  security  and  they should  know  where  politics ends  and  security  of their  nation begins.  The  fact  that both  the US  and  UK  are  collaborating on the lap top ban shows  that security   is a collective  responsibility  amongst  even  nations  not to talk of  citizens within  the  same nation  like the US .The  British  government, the people  and the news  media  showed  the Americans the way  to  deal  with  terrorism in the way the MPs  in Parliament,  and    the   British  government allowed  the Police to deal  with the latest  act of terror on  Westminster in Bridge  and Parliament ground  by  following Police statements  and directives  to  the letter  and  not allowing any speculation on the name and identity  of the culprit  until  the  Police officially  did so. All  the way the  British  government right  up to the PM  and  even the Queen,   a ceremonial  head of state ,  were full  of praises  for the capacity, real  or potential,  of the Metropolitan  Police  to handle  the situation. This   lone wolf  terrorist  action  brought out  the trust  and confidence the Britons   have  in their  security  apparatus   and is a far  cry  from  the way  the US opposition  establishment  is doing its utmost legally  to thwart  even  the capacity  or will  of  their new president to make laws  to protect  Americans as  he promised  before  he was elected  on the basis of such promise  to make  America  safe  again.

    Finally  the  revelation by the  FBI boss  Comey  that  Russian  President Vladmir  Putin hated Hillary  Clinton so  much  he wanted her  opponent  to  win is  so  trifle    and   laughable. That  is casting aspersion on the  victory  and legitimacy  of the newly  elected  US president. That   surely  is not the role of an intelligence outfit  like  the FBI.  For  now the FBI  boss  has  done more havoc to  US politics  and political  stability  than any  past  FBI  boss including  the  first   FBI   boss J Edgar   Hoover  who was  said  to use intelligence  to blackmail politicians  and top  government  officials including  the  Kennedys in  those  days.  To  most  democrats in the US the timing of the announcement on  Hillary ‘s emails’  fresh investigation   by  the  FBI    boss  cost  her the last US  presidential  elections . Now the same FBI boss  who  is to be seen and not heard  has  turned  himself  to an oracle  on  US  elections and  has used state intelligence publicly to  show  he is transparent  when  the protocol  and laws  governing his office are  those    of secrecy  and respect  for state  security. Now  the   FBI  boss  in the US has turned his office into  that of a political and security  clown and entertainer such  that the Russian  president  described the US intelligence  apparatus as amateurish nowadays  in spite of its deep  history of brilliance during the Cold War  when  even  the  Russian KGB  played  second  fiddle to it  on all  fronts. Surely  one  can say  or  lament   on  the state    of US intelligence  and  leadership   today  by  saying – How are  the mighty  fallen!. Once  again  long live  the Federal   Republic  of  Nigeria.

  • Lagos at 50: legality of Soyinka’s appointment

    Being a speech by Femi Falana (SAN) at the presentation of Kayode Fabunmi’s book: The Story of a giant in Lagos on April 12.

    I wish to join others in congratuating Mr. Kayode Fabunmi for his timely book on The Story of A Giant. Since the book has rightly touched on the migration caused by the slave trade and colonialism it is pertinent to join issues with a segment of the political elite which has decided to follow the shaky footsteps of Mr. Donald Trump by attempting to constrict the democratic space in our country. I crave the indulgence of the audience to contribute to the  diversionary debate over the constitution of a committee set up by the Lagos state government to supervise the activities lined up to mark the 50th anniversary of the creation of Lagos state.

    It is common knowledge that Prof Wole Soyinka’s parents were from Ogun state. His father hailed from Isara, an Ijebu community while his mother was an Egba woman. Even though ours is a patriarchal society, the Nobel Laureate has always described himself as “Ijegba”, a word coined by him from his Ijebu and Egba roots. However, the Ijegba man has lived in Lagos and made it a home like many Nigerians and foreigners alike. As a young lecturer he taught briefly at the University of Lagos. On account of his involvement in the struggle for social justice he has read poems and delivered speeches in Lagos to arouse the Nigerian people to fight tyranny and oppression. He has also held press conferences and led protests on the streets of Lagos against the dictatorial tendencies and excesses of the civilian and military wings of the bourgeois ruling class.

    To stop the carnage on our poorly maintained roads he inspired a group of road safety corps of volunteers to manage a chaotic traffic situation in the country in the 70s. The Federal Government bought the concept and set up the Federal Road Safety Commission. In adopting the programme the Bola Tinubu administration established the Lagos State Transport Management Agency (LASTMA). But for the strident opposition of a group of artists led by Prof Soyinka against the planned privatisation of the National Theatre at Orile Iganmu in Lagos the edifice would have been sold to a business tycoon who might have converted the historical monument to a shopping mall.

    Several years ago, the Lagos State government had rightly acquired the site of the colonial prison along Broad Street in Lagos for a public purpose. As the government was thinking of what to do with the site it was Professor Soyinka who convinced the Babatunde Fashola administration to turn it into a centre for the promotion of arts and culture. The beautiful arts theatre erected by the state at the site is now known as the Freedom Park. The theatre which is patronised by local and foreign artists has become a popular entertainment centre in Lagos state. In spite of his very busy schedules Prof Soyinka superintends the management of the theatre. Characteristically, he has added value to the Freedom Park and enhanced its image.

    Having regard to his enormous contributions to the development of Lagos, Prof Soyinka’s appointment as a co-chair of the 50th anniversary committee of the creation of the state by Governor Akin Ambode was hailed in many circles. However, it has not gone down well with the members of the “Eko Foundation” who have said that the temporary appointment ought to have been allocated to an indigene of Lagos state. Incidentally, the press release issued by the group was jointly signed by two senior lawyers – Prof Wole Smith (SAN) and Kunle Uthman. While appreciating the primordial sentiments expressed by the group in the context of the country’s politics of exclusion it is pertinent to examine the legal validity of the appointment.

    Since the people of Nigeria are entitled to residency rights the discriminatory treatment meted out to non-indigenes and settlers in many parts of the country cannot be justified in law. In Lafia Local Government v. the Executive Governor, Nasarawa State & Ors (2012) 17 NWLR (PT 1328) 94, the Supreme Court struck down a policy of the Nasarawa State government which required all local government staff to serve in their local governments of origin. In the leading judgment, Rhodes Vivour J.S.C. said that the policy was “discriminatory and unconstitutional and clearly offends the provisions of section 41 (1) which guarantees freedom of movement and section 42 (1) which guarantees the freedom from discrimination. It is contrary to the spirit and intendment of relevant sections of the Constitution”.  In his contribution to the judgment Fabiyi JSC also stated that “the policy infringed and/or eroded the constitutional rights of the 3rd-36th respondents relating to discrimination, ethnicity and place of origin syndrome. That should not be the position in a democratic setting guided by fundamental human rights as duly imbued by the Omnipotent”.

    By the combined effect of sections 14 and 15 of the Constitution the Nigerian State is required to promote national integration and protect the residency rights of citizen while the government or agency of a state government shall be constituted in such manner as to promote a sense of belonging and the diversity of the people. Although section 147 of the Constitution provides that every state in the federation shall be represented in the federal cabinet by any indigene, there is no such requirement at the state level. In other words, it is not stated in the Constitution is that members of the executive, judicial and legislative arms of a state government shall be constituted by indigenes alone. Therefore, the appointment of Prof Soyinka by Governor Ambode has not violated any law.

    About three years ago, former Governor Fashola said that Mr. Segun Aganga was not competent to represent Lagos in the Jonathan cabinet on the ground that his parents hailed from Edo State. In challenging Mr. Fashola’s position I did state that Mr. Aganga is a Lagosian since he was born and bred in Lagos and has been accepted as an indigene by one of the local governments in the state. My position was anchored on the Federal Character Commission Act which has defined an indigene of a local government is a “person either of whose parents was or any of his grandparents was or is an indigene of the local government concerned or accepted as an indigene by the local government, provided that no person shall lay claim to more than one local government”.

    In Director-General, State Security Service v. Olisa Agbakoba 1999) 3 NWLR (PT 595) 314, the Supreme Court upheld the right of Nigerian citizens to reside in any part of the country when it held that “It is not in dispute that the Constitution gives the Nigerian citizen the right to move freely throughout Nigeria and to reside in any part thereof.”

    In view of the clear provisions of Section 42 of the 1999 Constitution it is undoubtedly clear that discrimination meted out to a Nigerian citizen on the basis of ethnicity or place of origin is unconstitutional. In order to end the dichotomy of indigenes and settlers in the country, not a few people have suggested that the rights of an indigene be conferred on any settler who has resided in any community in Nigeria for a period of not less than 10 years. The suggestion flies in the face of sections 41, 42 and 43 of the Constitution which have guaranteed the fundamental rights of every Nigerian citizen to move freely throughout Nigeria, reside, own and acquire property in any part thereof and not to be subjected to disabilities or restrictions on account of their ethnic group or place of origin.

    By way of digression, permit me to recall an interesting experience. I was in Nairobi, Kenya to attend an international human rights conference in 2008 when Mr. Barrack Obama had just been elected as the President of the United States of America. Since his father was a Kenyan, Obama’s election was celebrated all over the country. Even the then Kibaki regime which had annulled the result of the presidential election in the country declared a national holiday to celebrate Obama’s election. In the course of reviewing the American election I was compelled to ask some of my Kenyan friends if Barrack Obama could have won a presidential election if he had contested in Kenya. All the friends were unanimous in saying that it would have been impossible since his father was of the Luo tribe, a minority ethnic group in Kenya.

    Regrettably, the political class in each of the African countries has failed to draw any lesson from Obama’s election. Hence, African politicians have continued to campaign and woo voters on the basis of ethnicity and religion to the detriment of development. As a centre of excellence Lagos cannot continue to live in the past.  Because of its cosmopolitan nature Lagos cannot afford to play the politics of exclusion. To that extent, the appointment of Professor Wole Soyinka as a co-chair of the 50th anniversary committee cannot be said to be anomalous in any material particular.