With the 2019 general elections near, there is every reason to worry about the resort to arbitrariness by those in power especially in their desperation to have a controlled demolition of their opponents. Amongst the three arms of government, the worst culprit is the executive, which controls the coercive powers of state, as its officials could in their desperation to win the next election at all cost be tempted to use the apparatus of executive power in a manner that smacks of arbitrary conduct. When that happens, the first casualty is the rule of law.
Last Sunday, an FM radio station, in Ibadan, was partially demolished by the government of Oyo State in a manner that smacks of arbitrariness. According to reports, the owners of the station were given few days’ notice of alleged contravention of the state town planning laws, a contravention they denied and challenged in court. Despite the challenge, and the pendency of an ex parte application, which is reportedly slated for determination yesterday, Monday, the officials of the state, very early on Sunday, August 19, allegedly resorted to self-help in flagrant abuse of the rule of law.
This column joins other Nigerians to condemn the hasty demolition of the radio station, more so, as there are claims that the action was tainted by political malice, over unfavourable broadcasts by the FM station. There is also the social angle about the person who owns the radio station, which scurried more sympathy for the station, with unprintable abuses rained on the state government, led by Senator Abiola Ajimobi. Each time a governor is accused of malice in demolishing the building of perceived political opponents, I always worry deeply about the management of the affairs of such a state.
For me, a state executive with a mind-set to demolish a structure, merely because of perceived political differences, gives the impression that such a chief executive could be having some psychological challenges. Mores so, for a government that would be out of power in a few months, it smacks of poor judgment, to write the history of its last days in office, in such a controversial manner. It is such poor sense of judgment, particularly of the transiency of power, which gives me greater concern about the capacity of such state official in the management of the state, even in other matters.
I recall a similar demolition exercise, few months ago, by the belligerent governor of Kaduna State, Mallam El Rufai, for clearly political differences. There, despite public condemnation of the threat, the governor went ahead to seize the site, demolish the property of his political opponent and has reportedly given it out to another developer. While a contravention of state town planning law could be a good reason to demolish and remove a permanent structure, especially for overriding state interest like the blockage of a drainage, there can be no justification to use it as a punishment for perceived political opponents.
As far back as the 13th century, a famous Philosopher Henry de Bracton, wrote: “The king himself ought not to be subject to man, but subject to God and to law, because the law makes him king.” The governor or any state official is only that because the law says so, otherwise he is ordinary, like the victims. So, it smacks of impertinence to ride rough shod over the same laws that give the governor or other state official, the legal cover to be treated differently. A democratically elected governor must be subject to law, because the law made him governor.
No doubt, it is a mockery of our constitution and other extant laws, when state officials resort to self-help and ignore the pre-eminence powers of the court, as the legitimate arbiter in dispute between state and citizens as provided in section 6(6)(b) of the 1999 constitution (as amended). It is indeed shameful when a state rushes to beat the rule of law, by destroying the subject matter of a dispute (res), as alleged with respect to the FM station in Ibadan, in the early hours of a Sunday, just to avoid the constitutional intervention of the court, as guaranteed by the constitution. For me, any state official, involved in such despicable abuse of the rule of law, should hide his head in shame, for ridiculing the democracy we profess.
As far back as 1885, a United Kingdom Professor of Law, A. V. Dicey, in his book titled: ‘Introduction to the Study of Law of the Constitution’, gave three principles on the Rule of Law. First, “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of government.” Secondly, the rule of law “means equality before the law, or the equal subjection of all classes to the ordinary laws of the land administered by the ordinary courts.”
Finally, according to Dicey, the rule of law is “a formula for expressing, the fact that the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code are not the source but the consequence of the rights of individuals, as defined and enforced in the courts.” Before the property of Citizen Yinka Ayefele, was destroyed in Ibadan, last Sunday, did the state officials involved test their actions against the lucid principles enunciated by the learned author, and backed by the 1999 constitution and other local and international laws applicable in the state?
In the days ahead, Nigerians will want to hear the explanations the government of Governor Ajimobi would offer for the demolition of last Sunday, of all days. Perhaps, if the owners of the FM station approaches the court, the propriety or otherwise of the act, will be determined. As held in the case of Caltona Ltd vs Commissioner of Works and Others, “All the courts do is to see that the power which is claimed to be exercised is one which fall within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense or any other aspect of the transaction.”
If the state officials didn’t observe the principles, or obey the dictates of rule of law, a fundamental threshold upon which a democratic government is built, then they deserve the condemnation trailing the show of power. Governor Ajimobi may not be the only executive exposed to temptation of arbitrariness, in these politically trying times. But the mark of a democrat is to resist such temptation, even though the temptation to gain advantage at all cost will keep increasing as the election draws nearer. Officials must remember that if the house falls, everything falls with it.
