The Law As An Endangered Specie In Nigeria By Wole Olanipekun

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Politics 1/Doc/Olanipekun Pix Olanipekun









>>>I shall restrict myself to juxtaposing the topic and the ingredients and constituents of law against the background of our nation’s experience in areas of security, constitutionalism and corruption, three key areas that to my mind, are very critical to our corporate existence as a nation.
The Constitution of the Federal Republic of Nigeria, despite its imperfections and glaring inadequacies, captures the very essence of government and governance when it states and commands as follows:
“The security and welfare of the people shall be the primary purpose of government.”
In a gathering like this, it is important that we examine the operative words in the constitutional provision, particularly the words ‘shall’, ‘primary’ and ‘purpose’. No Legislature uses words in vain. In particular, whenever the Legislature employs the use of the word ‘shall’ in any enactment, it shows that what is to be done is compulsory and not discretionary. It is mandatory and peremptory. In the words of the Supreme Court, “The word ‘shall’, in the ordinary meaning of it, connotes a command, and that which must be given a compulsory meaning. It has a peremptory meaning which is generally imperative and mandatory. It has the significance of excluding the idea of discretion to impose a duty. Thus, where a provision provides that a thing shall be done, the natural meaning is that a peremptory mandate is enjoined.”
To Thomas Hobbes, it is the primary responsibility of government to provide security; its very mandate, thrust and raison d’etre. Our own Constitution is therefore not saying anything different from what has been the primary duty of any government since time immemorial. However, let me add that security is not and should not be the exclusive responsibility of government under the law, as both the government and the citizenry have the same degree of responsibilities and interests at ensuring that the security of the nation and environment is not breached at anytime. While the government through its programmes, actions, orientation and agencies are to protect and guard the territorial and environmental security of the nation, it behoves the citizens that the Rule of Law is neither threatened nor any Law put in place, security-wise is not broken. In our country today, we daily contend with high degree crimes like murder, arson, kidnapping, terrorism, arms proliferation, rape, monumental corruption, armed robbery (day and night), drug trafficking, as well as human trafficking, money laundering etc, all of which threaten the very fabric, foundation and corporate existence of the nation. Let us graphically consider some horrendous and mind-buggling stories as captured in some of our national dailies, all of which represent what Nigeria and Nigerians contend with on daily, if not hourly basis: “Kidnappers Abduct Commissioner’s Mother in Bayelsa”,[1] “Killing of 13 Cops in Bayelsa” “Bayelsa: Bodies of 12 slain Cops not yet found”,[2] “Bloodbath in Bayelsa – Militants kill 12 Policemen in boat attack”.
“Luxury Bus Tragedy manifest Released – 36 corpses moved to mortuary – Lone Survivor dies”, “Palace Aide, Others Masterminded kidnap of Okonjo-Iweala’s Mother”, “Evil Forces trying to derail Nigeria”, “North killings, genocide against Christians – CAN” “One killed, many injured as PDP, ACN clash in Ekiti”, “Outrage over Baga, Borno State massacre” “Tukur laments blood shedding, craves foreign intervention – JTF kills four insurgents in Yola”, “Warri Prison Van Attack: Police Arrest Five, Recover Corpse – Two more deaths recorded”, “There is blood in the land –by Femi Fani-Kayode,” “Boko Haram Attacks Prison in Borno, sets Inmates Free,” “Shock over assassination of Kwara CP, Asadu,” “Baptism of Blood … As Boko Haram hits Jigawa; Bombs ex-IG’s house, bank, Police Station … five killed”, “N1.52trn Special Funds gone, Government, Agencies, Others indicted”, “Army razes Egbesu Camp in Delta”, “Senate begins probe of Minister, NNPC, Shell”.
In the face of all these horrific and terrifying crimes, can one in good conscience still applaud the law in Nigeria or give kudos to it for being effective? Is it a free or an endangered specie? While the concluding part of this lecture will answer these questions, permit me to quote and agree with some eminent Nigerians in their postulations and writings, including editorial opinions of nearly all our leading national dailies. Writing under the caption ‘From Amnesty to Paralysis’ in The Nation newspaper, that fine writer, Sam Omatseye in his elegant but satiric prose thundered as follows:
“Where communication fails, peace eludes … Now, what we have is not a theocratic State. It is not even a society of believers. It is a secular State professing a belief in a Higher God whom no one obeys. Like Charles Dicken’s novel on the French Revolution, it is the epoch of belief and the epoch of incredulity. Everyone is going to heaven and everyone is going the other way.”
Yet, there has been no resolute and co-ordinated action against these obnoxious killings that have reached unprecedented levels, in spite of the official claim that the country is not at war.
In its 2012 report, the United States Commission on International Religious Freedom says more than 14,000 Nigerians were killed in religiously – related violence between Muslims and Christians. Remarking on this unwholesome situation, the Deputy Senate President, Ike Ekweremadu, said, ‘There is a general consensus that security of lives and property in Nigeria has abysmally declined since 1966 and has come to its lowest ebb in recent years. Even high profile crimes have not only been successfully perpetrated without prevention, but they have also largely gone unresolved and unpunished.”
The point must be clearly made that right from the Garden of Eden, man developed rebellious traits against God and Law. God was so incensed with man’s rebellion and lawlessness to the extent that He wiped-off His entire creation at a stage. The Bible also recalls that “The heart of man is deceitful and desperately wicked …”. The point at stake is that man is always prone to breaking laws and wreaking havoc on his neighbours and the society. But what differentiates man from animal is the ability of law to put in check man’s animalistic, criminal, primitive, barbaric and wicked tendencies; that is also what differentiates, to a high extent, stable and unstable nations or developed and under-developed countries. A recent example was the barbaric bombing of athletes/sportsmen at the Boston Marathon in Massachusets in the USA. Like any other set of criminals, Dzhokhar Tsarnaev and Tamerlan Tsarnaev, the masterminds of the bombing set out to maim, kill and destroy. In the process, three people died and about a hundred wounded. One out of the two of the criminals died, while the second was apprehended. The surviving one has already been charged to court. What has been demonstrated in the entire unfortunate saga is the ability of the law over there to curtail criminals and criminality, as well as the high efficiency of the Law enforcing agencies and also the support and vigilance of the people. Segun Adeniyi captured it all in his piece titled: “Endgame in Massachusetts” when he posited that:
“… for a society to be safe, secure and prosperous, it would take those in authority being alive to their onerous responsibilities and members of the society not only holding them to account but also playing their own roles.”
Against the Boston background and the swiftness of the law in the USA is the docility and near-coma stage our own law is vis-à-vis apprehending criminals, even in what is now regarded as high profile unresolved killings or murder cases. These include but not limited to the killing of Dele Giwa, October 19, 1986 Lagos, parcel bomb; Babatunde Elegbede May 5, 1994, Lagos, shot; Captain Tunde Ashafa, June 11, 1995, Lagos, shot; Mr. Alfred Rewane, October 6, 1995 Lagos, shot; Kayode Awosanya, January 1996, Lagos, shot; Tajudeen Abiola (Mrs.) February 9, 1996, Lagos, shot; Admiral Olu Omotehinwa, May 22, 1996, Lagos, shot; Irene Obodo (Mrs.) June 1996, Lagos, shot; Alhaja Kudirat Abiola, June 4, 1996, Lagos, shot; Chief Adejola Balogun, June 15, 1996, Lagos, shot; Esther A. Tejuoso (Mrs.) September 19, 1996, Lagos, shot; Alhaja Suliat Adedeji, November 14, 1996, Ibadan, shot; Toyin Onagoruwa, December 1996, Lagos, shot; Patrick Okoye, January 31, 1999 Lagos, shot; Sunday Ugwu, September 9, 1999, Enugu, shot; Igwe Francis Nwankwo, February 15, 2000, Anambra, Shot; Joseph Osayande, December 4, 2000, Benin, shot; Chief Layi Balogun, December 10, 2000, Lagos, shot; Ogbonna Odimbaiwe, August 23, 2001, Ebonyi, shot; Ifeanyi Nnaji, August 23, 2001, Ife, shot; Chief Bola Ige, December 23, 2001, Ibadan, shot; Mr. S. A. Awoniyi, January 7, 2002, Lagos, shot; Ifeanyi Igbokwe, April 18, 2002, Lagos shot; Musa Dayo, May 9, 2002, Bauchi, shot; Maria-Theresa Nsa, June 11, 2002, Cross-River, shot; Chief & Mrs. Barnabas Igwe, September 1, 2002, Onitsha, shot; Mr. Ogbonnaya Uche, February 8, 2003, Owerri, shot; Emily Omope, March 3, 2003, Ibadan, shot; Marshal Harry, March 5, 2003, Abuja, shot; Ajibola Olanipekun, June 21, 2003, Ibadan, shot; Aminosoari Dikibo, February 6, 2004, Delta, shot; Lateef Olaniyan, July 16, 2005, Ibadan, shot etc. In addition to the foregoing, a serving Commissioner of Police, Chinwike Asadu in Kwara State was gunned down by die-hard criminals, just very near his own premises on March 3, 2013.
Our (law) recipe for murders, kidnappings, rape, terrorism, assassination etc. is outpouring of sympathy and emotions, rather than apprehension of the culprits. It is embarrassing to all of us as Nigerians that a serving Attorney-General of the Federation was murdered right in his bedroom since 2001 and till date, our law enforcement agencies have not been able to unravel the mystery surrounding his assassination. Again, one cannot but agree and share the views expressed by Kabir Alabi Garba in his comments titled “Boston blasts: How good police-media relation yields bumper harvest”.
Let us remind ourselves that the Boston Police was primarily in charge and control of investigating and apprehending the criminals in the State of Massachusetts. They worked in co-operation and collaboration with the Homeland Security and CIA. In America, deference is given to the President as the Head of State, but power is never over-concentrated in Washington as we have it in Abuja. It is bizarre that a country as big as Nigeria has continuously enacted in its Constitution that there shall be only one Nigeria Police Force. The Governors are arm-chair Chief Security Officers of their respective States who can be likened to Emperors without Empires or Kings without Kingdoms. It is against the norms, spirit, principles, tenets, tenor and constituents of federalism to have powers so over-concentrated in the centre as we do in Nigeria. In developed countries of the world, most of which are not half as big and expansive as Nigeria, they have Police formations in cities, how much more in States. The point must be bluntly made that with the present arrangement and structure, we cannot nip in the bud the threat posed to the corporate existence of Nigeria by insecurity of lives and properties. If those who argue against the creation of State Police are honest about their submissions, one wonders then why they do not go the entire stretch to call for the abolition of vigilante groups that provide security in several communities, towns, villages, streets and settlements? Why have they not also gone to Court to challenge the award of anti-oil pipeline vandalism contracts to some Militant groups in the South-South and South-West, bearing in mind the fact that our Constitution provides for one Naval Force whose duty is to secure our territorial waters.
Adjunct to this is the resort to self-help, insurrection, conflicts and stock-piling of arms, as rightly brought into fore by A. J. Omode. The Governor of Osun State, Rauf Aregbesola, also hit the nail on the head when he recently captured the situation this way:
“When there is disharmony between social justice and universal law, chaos and disorder ensues … The environment of extreme poverty, ignorance and diseases where might is right, where the gap between the haves and have-nots is increasing at a geometric proportion, where law serves the interest of the few, where most people are hopeless, can only but encourage such sundry acts of terrorism capable of regressing man into the Hobbesian state of nature where there is war of all against all and the life of man is nasty, brutish and short.”
It is an understatement to say that Nigeria does not have a stable Constitution. Since 1999 when we embarked on our new democracy, we have been toying with the Abdulsalam Military imposed Constitution, just in like manner as a baby toys with his toys. The Constitution is tinkered with at the whims and caprices of every session of the National Assembly, acting in concert with successive Executives at the Federal level. Provisions which ought to ensure observance of law and order and emergence of an egalitarian society are either obscured or made non-justiciable. Contrariwise, provisions which are antithetical to the spirit of federalism are enshrined, thus paving way for foisting on the nation a unitary, rather than a federal system of Government. It has been held that a Federal Government will mean what the Constitution writers say it means and this can be procured within the four walls of the Constitution only.[5] But our own federalism is a lip-service one and not a constitutionally guaranteed or enshrined federalism. It is universally accepted and acknowledged that the Constitution is the basic and supreme law of the land, as well as the organic law, setting out the fundamental principles according to which a nation is constituted and governed. The nature of a country’s Constitution, therefore, shapens the type of governance it has; as well as the orientation of her people. To my mind, our Constitution does not support or encourage an egalitarian society; it does not believe in its heart of hearts that sovereignty actually belongs to the people as sufficient safeguards are not contained in the Constitution to actualize the rhetoric in section 14(2)(a). Let me state again that the provisions in Chapter II of the Constitution relating to Directive Principles of State Policy are mere decorative and not enforceable. Put in the legal jargon, they are non-justiciable. But again, it can be argued that despite the decorative nature of these provisions, section 13 thereof can be resorted to by our courts to make them justiciable as it provides thus:
“It shall be the duty and responsibility of all organs of government, and all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.”
In this wise, particular emphasis would have to be placed on the word ‘shall’ employed by the said section 13, as well as the basic canon of interpretation of statutes which enjoins that the later provision of section 13 should prevail over the earlier provision of section 6(6)(c) which makes Chapter II non-justiciable. The Supreme Court attempted to make the provisions justiciable in the celebrated case of A.G. Ondo State v. A. G. Federation[6] where it gave its judicial approval to section 15(5) which provides thus:
“The State shall abolish all corrupt practices and abuse of power.”
Unfortunately, this has been an isolated decision and in our country today, it is strange that government is not committed to making education free and affordable contrary to the intention of section 18 of the Constitution; there is no fidelity to the provisions relating to equality of rights, sanctity of human persons, humane nature of governmental actions, impartiality and integrity of courts of Law, provision of employment opportunities so that every Nigerian can secure adequate means of livelihood; provisions of medical and health facilities for all, protection of the children, young persons and aged against exploitation and neglect etc. The Indian Supreme Court asserted the justiciability of its own equivalent of our Chapter II in the celebrated case of Minerva Mills Ltd. v Union of India AIR where it rightly concluded as follows:
“The large majority of people who are living in almost sub-human existence in conditions of abject poverty and for whom life is one long unbroken story of want and destitution, notions of individual freedom and liberation though representing some of the most cherished values of a free society would sound as empty words bandied about in the drawing rooms of the rich and the well to do, and the only solution for making these rights meaningful to them was to re-make the material conditions and usher in a new social order where socio-economic justice will inform all institutions of public life so that the preconditions of fundamental liberties for all may be secured.”
In a beautiful write up by Eze Onyekpere in the Punch newspaper titled “Making economic and social rights justiciable”, he analysed the report of the House of Representatives Ad-Hoc Committee on the review of the 1999 Constitution, vis-à-vis the views of Nigerians across the States on whether or not the provisions of Chapter II should be made justiciable and posited that: “According to the results, Nigerians by majority of 279 Constituencies voted in the affirmative while 78 rejected the proposal … The implication of this result is that Nigerians have voted in favour of improved governance, service delivery and a rights-based approach to development”. In my humble submission, there is a failure of the organic law of the land when and where, as we have now, it cannot guarantee free education, employment opportunities, old age care and assistance, reasonable and fair but qualitative health care delivery and facilities etc. It then means that the grundnorm of the country itself which is the foundation of all other laws and to which every other Law must conform is endangered. The end result is that assuming without conceding that any other Law passed by Parliament attempts to create an exception or give an impression that government at any level or tier is attempting to improve the lots of our people, that attempt would amount to placing something on nothing, which cannot stand.
•Excerpts of a paper delivered by Olanipekun (SAN) at the 2013 Dr. Akinola Aguda Memorial Lecture in Lagos.
unc diminitis.-Culled from the Punch Newspapers

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