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THE IMPARTIAL OBSERVER

Army arrangement in Ekiti

HANK ESO

Sunday, 21 October 2006

Political necessities sometimes turn out to be political mistakes.

-- George Bernard Shaw

“Something cannot stand on nothing.” It was with those fateful words that President Obasanjo summed up on 19 October, his reasoning and proceeded for the second time, and perhaps not the last time in his presidency, to impose as State of Emergency on a Nigerian State in crisis. In his words:

By virtue of Section 305 of the Constitution of the Federal Republic of Nigeria (1999), I hereby declare a State of Emergency in Ekiti State. This declaration has been published in a Federal Gazette as of today. The Governor and his Deputy and those who purported to be Acting Governors or Deputy by this declaration will cease to be in charge of the affairs of Ekiti State. An Administrator to manage the affairs of Ekiti State in the person of Brigadier- General Tunji Olurin (rtd.) is hereby nominated for six months in the first instance. The Ekiti State House of Assembly also goes on suspension as the formal legislative body of the State with immediate effect for six months.

Fair enough, the president invoked the Nigerian constitution. So, he is presumably on safe grounds given the political imperatives he was reacting to. But that is merely on the surface, for as Bernard Shaw observed many years ago, “political necessities sometimes turn out to be political mistakes”.

Admittedly, President Obasanjo from the tenets of his speech had based his imposition of a State of Emergency on Ekiti on the doctrine of salus populi suprema lex or the “people’s safety is the highest law”. But he also erred in the strict sense of law and conventional wisdom that regulates governance. After all, as the saying goes, “ legal justice is the art of the good and fair” (Ius est boni et aequi). In the context of Nigeria, the use of the word “immediate effect” resonates historically as undemocratic, military, and anti-politics. A benumbing reality is that the key participants at the swearing in of Brigadier- General Tunji Olurin, were all ex-military; General Olusegun Obasanjo, Gen. Abdullahi Mohammed and Gen. Sarki Mouktar. The Chinese say, “one picture is worth more than a thousand words.” Clearly, the implication of what happened in Aso Rock in relation to Ekiti and Nigerian politics could not have escaped Nigerians. The nation remains under military rule in the guise of a democracy. As the late Fela Anikulapo Kuti would have said, it was an “army arrangement.”

But let’s return to the unfolding saga in the wild-wild western state of Ekiti.

Since the facts that led to the crisis in Ekiti State are clear, I will dispense with rehashing them here. Suffice it therefore, to say that Governor Ayo Fayose and the Ekiti House of Assembly having parted company was purportedly impeached in a series of kangaroo maneuvers, which also involved the Judiciary. The end result, was a truncated government in which in the words of President Obasanjo:

Led to the situation of Mrs. Olujinmi claiming to remain the constitutional Deputy Governor and the Acting Governor in the absence of Governor Ayo Fayose while, at the same time, Ayo Fayose claiming in hiding to be Governor, and the Speaker claiming to have been sworn in as the Acting Governor.

The focus of this piece is to peek into the rationale behind President Obasanjo’s use of a constitutional means to address a crisis, without necessarily rendering justice and due process or for that matter, redressing the harm that has been done by those who unconstitutionally removed Governor Fayose. In essence, was the president’s action in the national interest as it was purported to be and if so, why were the aggrieved, Fayose, and the Ekiti electorate who voted him into office not accorded the protection of the law?

These questions weighed heavily on the minds of leaders of Action Congress (AC), who recently expressed concern about the prospect that President Obasanjo may be “foisting dictatorship on the nation” and went on to aver that:

In total violation of our constitution, President Obasanjo and his group have blatantly turned this into a unitary constitutional state where the centre reserves the right to remove elected leaders by reckless deployment of soldiers and mobile policemen from the barracks.

In his address to the nation, President Obasanjo catalogued series of violations of the Nigerian Constitution, especially, Section 292, Sub-Section (1), Sub-sub-Section a (ii), and Section 271(1), all in the bid to remove Governor Fayose. In sum, he noted that:

The action of the Speaker in spearheading serial unconstitutionalities for him to be the beneficiary at the end of it all is odious and leaves much to be desired and could not have been in contemplation by the makers of our Constitution. Impeachment is a very serious and sacred duty and responsibility of lawmakers, which should not be undertaken lightly or for personal aggrandisement. The situation in Ekiti State must not be allowed to crystalise and to be consolidated. The time to save our democracy from being undermined and badly eroded is now. We must save our democracy and preserve our Constitution and that was the oath of office I took. We must save Ekiti State from anarchy. And we must preserve law and order, good governance and ensure probity in governance in Ekiti State.

If the President and his advisers truly believed that Governor Fayose had been wrongly removed, and that they wanted to uphold the sanctify of the Nigerian Constitution, then, the action they took was far from what they should have done. Their first act should have been to legally declare the removal of the Governor null and void, through the Supreme Court. Their second act, should have been to reinstate the governor in office and protect him, even with the use of the military so that he can continue to perform his duties. Their third act, would have been to ensure that House Speaker Friday Aderemi and those who tried to illegally remove a seating governor were censured or if necessary, forced to leave office. These acts, singularly or collectively would have reinforced our young democracy and set the correct precedent.

The President and his advisers did none of the above. Instead, they joined ranks with those who sought to force Governor Fayose out of office. And they did so, using provisions of the Constitution, which was intended as a last resort in dire cases of national emergency. This fact raises a critical question: did the president and his men act in the national interest or to fulfil a partisan agenda?

Here is the reality as I see them.

Conventional and judicial wisdom holds that no legality can derive from an illegality not even under the pretext of clear and present danger to state security. Put differently, to use President Obasanjo’s maxim, “something cannot stand on nothing.” This singular fact calls into question President Obasanjo’s choice of imposing a state of emergency on Ekiti State.

The only recourse I see is the application of the doctrine of De mininimis no curat lex – the law does is not concerned with trifles – to Fayose’s case. The argument here, is that the cardinal focus should not have been the illegalities and trifle acts committed by those who orchestrated Fayose removal. Rather, the goal should have been to ensure that such acts do not stand by any means and that there is restitution, which can only be accomplished by his full reinstatement as governor. The president elected for reasons best known to him alone to foreclose on this option, when he rendered his judgement, in which proverbially, the baby was thrown away with the bathe water. He chose to cashier Governor Fayose along with his detractors. Such a one-strike-solves-all approach is reminiscent of modus operandi of the Nigerian military in many they ruled. It also overlooks the conventional rule of law, made famous by Sir William Blackstone, that “it is better that ten guilty persons escape than one innocent suffer.” Cut anyway, the President’s action in Ekiti falls squarely in the realm of “summun isu summa iniuria” ~~ extreme justice is extreme injustice.

More importantly, the continued use, the second time around, of retired military officers to replace democratically elected officials gives great cause for worry. We have precedents that the President elected to ignore. During the First Republic, when the need arose to appoint an interim administrator for the Western region, Prime Minister Tafawa Balewa chose Dr. Majekodunmi, not a soldier. In 1967, when a State of Emergency arose with the Eastern region seceding and declaring the Republic of Biafra, General Gowon appointed Mr. Ukpabi Asika the Administrator of the region, when he could easily have appointed a soldier. Why president Obasanjo elected to gloss over these precedents will be telling in the course of the unfolding history of his presidency.

Attractive as it may have been, it ought to have occurred to the President Obasanjo, that imposing of a state of emergency on Ekiti long after the same thing was done to Plateau State and barely six months to the end of current political dispensation would be deemed grievously egregious, the rationale notwithstanding. Indeed, it portends frightful and dissembling realities in the months ahead.

It is equally noteworthy, that the rusticating of the democratic institutions in Ekiti by the president just a few days after the president’s men -- Ahmadu Ali and Ojo Madukwe-- intervened to forestall an impeachment bid in Anambra State smacks of contradictions. Why would the presidency by default uphold the illegal sacking of a governor, while intervening to save another governor, one who as the case is, unlike Fayose does not even belong to the ruling PDP? If this is not Machiavellian politics at play in its crudest form, I don’t know what is.

For avoidance of doubt, the executive arm of government has the responsibility to act in order to maintain law and order as well as peace and security. But such actions should not in the first instance preclude judicial action that is in consonance with constitutional dictates. The determination of the unconstitutionality of the removal of Governor Fayose should naturally rest with the Supreme Court. This is quite different from the unilateral extra-judicial action taken by Chief Justice Alfa Belgore, in this instance. The Chief Justice insinuating himself into the process smacks of politics and is a further cause for concern, as to whether the entire process was kosher or contrived with different political considerations and outcome in mind. One point is certain, the interpretation of the Constitution has never been the remit of the Executive Branch. It was not when the President imposed a state of emergency on Plateaus State and it is not in the present case with Ekiti.

In fact, the time it took the government to decide to impose a state of emergency on Ekiti; to decide on Gen. Olurin as the Administrator and to draft president Obasanjo’s speech, would have been equally sufficient for Attorney-General Bayo Ojo to seek an injunction or obtain a ruling from the Supreme Court on the unconstitutionality of Governor Fayose’s removal. It may not be too farfetched that the government opted to by-pass the full Supreme Court in the knowledge that the Court would have ordered the reinstatement of Governor Fayose, once it determined that he was illegally removed.

But let’s assume for the sake of argument that the President had pursued that option. In the event that the Supreme Court rules on Fayose removal as being unconstitutional, and the Ekiti legislature persist on their wish to rusticate him contrary to court orders, then the Executive Branch can resort to force of a state of emergency. Indeed, at that juncture, real police or military force can be applied in order to uphold the law, which under the circumstance would be to allow Governor Fayose to continue to exercise hi mandate as the elected Chief Executive of the state, without let or hindrance. In the 1960s, the US Government deployed the military to enforce the Supreme Court sanctioned integration of schools. In the event that the Supreme Court ruling upheld the validity of Fayose’s removal, the same force could be brought to bear, to keep him from exercising the powers of his erstwhile office.

What the President ought to have done that he did not do, is to seek to uphold the Constitution and use his assumed or statutory powers to seek the reinstatement of Governor Fayose once a determination was made about his faulty removal from office. Acting in this instance as the judge and the jury, the President in his ultimate Solomonic wisdom found and told the nation that Fayose had been unconstitutionally removed from office, yet demurred on granting him his due reprieve. To say that one has been unjustly removed from office and yet uphold that removal by executive fiat is even more insidious than the original act itself. What was the overriding motive behind such blatant double jeopardy play?

Those who have had cause worry about recent political developments in Nigeria and the overall state of affairs, can already foresee where this is all heading. They smell a hidden agenda, which in reality, is not so hidden since it has been variously discussed. Nigerians who want to be fair to President Obasanjo, will rationalize his intervention in Ekiti State as timely, given the historical realities and antecedents of the politics of the western Nigeria. But even a wash of such sympathy will not override what the president seem to be missing; his own often restated declaration that Nigerians are still learning the ropes of democracy. A military-like solution to an entirely civilian and democratic crisis, does not augur well for our nascent democracy. Also, though the president might see the state of emergency process as a practical solution given his military background, his compulsive tendency to do so at the earliest opportunity and having done so twice in his second term, is really an attempt to bequeath Nigeria with a bum legacy.

The cynics see a far more sinister handwriting on the wall with Ekiti being the tip of the iceberg. An interlocutor pointed out to me a certain line in the President’s speech in which he said “The Nigerian Constitution 1999 foresees the ultimate of emergency in part or all of Nigeria and provides for it as the last resort.” My interlocutor stressed the part that referred to a state of emergency on “all of Nigeria” and noted that Ekiti was merely a harbinger of things to come. Interestingly, he also linked his concern as dovetailing with views I had expressed in my 17 September piece titled, “Nigerian Presidency: finally, revelation 101” in which I noted that:

Attentive Nigerian observers know too well that many of the so-called political strategists around President Obasanjo claim to be “progressives” and that they had more than one scenario or option up their sleeves when they started pushing the third term agenda that flopped. Option A was a constitutional amendment. That flopped, notwithstanding Julius Ihonvbere’s characterization of those unwilling to partake in the exercise as “intellectually lazy”. Option B was an Interim National Government (ING). That too, like an albatross, was glaring but did not take off the ground. The final joker when all else failed was to be Option C, where C stands for “confusion.” Obasanjo’s advisors have long referred this as the “other option”.

My interlocutor noted that Ekiti State heralds the deliberately induced political “confusion” that is yet to follow across Nigeria. He predicted that more state of emergencies would soon follow in Anambra and Plateau States where the governors are respectively under impeachment threats. He surmised that in time, most of the nation would come under a state of emergency, which will make the 2007 elections impossible and the elongation of the present dispensation inevitable.

While like many Nigerians I share most of my friend’s misgiving about the way our national politics has been unfolding of late, I hope for the sake of Nigeria that we are all wrong. The alternative and our being right will be a choice far too dear to contemplate as it may well mark our entering irreversible zone of a critical tipping point. Clearly there are deeper and widening fissures in Nigeria’s body politics. The drift towards dictatorial military-like leadership, is an ever present, even if unvoiced concern. The worst may still come in the next six months if the are no lessons in limits.

May the army arrangement in Ekiti not be an omen!

With neither anger nor partiality, until next time, keep the law, stay impartial, and observe closely.

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Hank Eso, is a columnist for Kwenu.com (New Jersey). His commentaries on Nigerian politics and global issues have appeared in The New Times (Lagos), African Profile International (New York), The Nigerian And Africa Abroad, (New York), African Market News (New Jersey) and in Gamji.com.

Email: hankeso@aol.com