Being the text of the paper delivered by Femi Falana, Chairman, National Conscience Party at the Gani First Fawehinmi Memorial Lecture organized by the Obafemi Awolowo University Students Union held at the Obafemi Awolowo University, Ile Ife, Osun State on Wednesday, September 15, 2010).
In the count down to the 2011 General Elections the visionless political class in Nigeria is busy fanning the flames of zoning, ethnicity and religion. Regrettably, the press has decided to promote reactionary proponents of such divisive politics instead of joining issues with them on the increasing wave of poverty ravaging the masses of the people. In the midst of the confusion and diversion deliberately created by politicians of questionable pedigree the student union of the Obafemi Awolowo University deserves commendation for celebrating the late Chief Gani Fawehinmi- a man of profound ideas, uncanny courage and extraordinary integrity.
Like every human being Chief Fawehinmi’s life was defined and shaped by his environment. He was born on April 22, 1938 into the prominent Tugbolo Fawehinmi family in Ondo. His father, a timber magnate, was fully responsible for his education and welfare. His hope of becoming a lawyer was almost dashed when he lost his father while he was a law student in London. All efforts to raise a loan to enable him to complete his university education proved abortive. So he had to fend for himself. Although he eventually succeeded in becoming a lawyer Gani decided to dedicate his entire life to struggle for the establishment of a society where every needy child would be educated at the expense of the State. Unlike other wealthy Nigerians Chief Fawehinmi and his estates have given scholarship to many indigent undergraduates on an annual basis since 1976. Having identified law as a tool of oppression in the hands of the ruling class Gani provided legal services, on pro bono publico basis, to thousands of workers, students and other victims of social injustice, abuse of power and oppression.
Gani and Legal Development in Nigeria
Upon the completion of his legal education in London Gani returned home and was called to the Nigerian Bar in January 1965. Barely a year later, the first republic was sacked by the armed forces. The Constitution was suspended while draconian decrees were imposed on the Nigerian people. In 1969, he took up the case of a factory worker whose wife had been snatched by a powerful permanent secretary in the service of the Benue Plateau State Government. Not withstanding that he was a rookie lawyer, he defeated the late Chief Rotimi Williams, QC, who was the counsel to the permanent secretary. For daring to challenge the corrupt establishment the Yakubu Gowon regime arrested and detained him without trial for several months. Instead of cowing him into submission the brutal experience strengthened him as Gani resolved to wage a decisive battle against injustice in all its ramifications.
In spite of incarceration and other forms of violations at the instance of successive neo-colonial regimes in the country, the quintessential Gani remained ever undaunted and chose to pursue the cause of social justice with equanimity and dedication. Gani’s unrelenting courage and unwavering doggedness, his sheer audacity and perseverance, his deep reverence for the rule of just law and passion for nonviolent revolution placed him in the class of political leaders like Mahatma Gandhi of India and Martin Luther King of the United States.
It is indisputable that Chief Fawehinmi made unrivalled contributions to legal development in Nigeria. In other words, his positive impact on the legal system is legendary. Gani’s immense contribution to the development of various aspects of the law manifested in the numerous cases he handled bothering on serious social, economic and political issues. Gani was a man of the law and ardent believer in the cause of justice. While successive oppressive military regimes and civilian governments in the country relied on the might of their weapons to confront dissenting opinions and opposing elements, the law remained the major weapon with which Gani fought to end oppression in the country. The many landmark cases in which Gani was leading counsel attested to his capacity in the arena of legal advocacy and knowledge of the law.
For instance, in the Garba v. University of Maiduguri (1986) 2 NWLR (PT 18) 559 the fundamental right of students to fair hearing before rustication or expulsion was upheld. The injustice in the Legal Practitioners Act which made the Attorney-General of the Federation the accuser and the prosecutor with respect to allegations of misconduct involving lawyers was highlighted by the Supreme Court in the Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 3 NWLR (PT 7) 300. The decision led to the amendment of the Act.
The dismissal of the case of Fawehinmi v. Nigerian Bar Association (1989) 2 NWLR (PT 107) 558 by the Supreme Court on the ground that the Respondent was not a juristic personality led to the registration of the Nigerian Bar Association under the Companies and Allied Matters Act. In Balarabe Musa v. INEC (2003) 10 WRN 1 the political space was liberalized when the Supreme Court struck down the stringent conditionalities imposed by INEC on new political parties. In Fawehinmi v. Akilu (1987) 2 NWLR (PT 67) 767 the Supreme Court relaxed the anachronistic doctrine of locus standi so as to permit the private prosecution of criminal offences by concerned individuals on the ground that “we are all our brothers’ keepers.” Since the Attorney-General of the Federation has never sued the Federal Government as a defender of public interest the locus standi of Gani to challenge the violations of the Constitution and other illegalities was upheld in the case of Fawehinmi v. The President (2007) 14 NWLR (PT 1054) 275.
In Abacha v. Fawehinmi (2001) 51 WRN 29 the Supreme Court held that since the African Charter on Human and Peoples Rights has been domesticated by the National Assembly our domestic courts have the jurisdiction to construe and apply its provisions whenever there are allegations of human rights infringement. In Fawehinmi v. Inspector-General of Police (2002) 23 WRN 1 it was declared by the Supreme Court that the public officers covered by the immunity clause in Section 308 of the Constitution can be investigated while in office.
In the course of handling some of the afore-mentioned cases and several others Chief Fawehinmi lost his liberty while his life was endangered. In many instances he was viciously attacked by judges who described him as a meddlesome interloper or a busy body for challenging illegal actions of the government. But through sheer courage, determination, industry and consistency which informed his forensic advocacy Chief Fawehinmi exposed the oppressive State and its shameless defenders to ridicule. At the end of his life, the foremost civil rights advocate could proudly say like Paul the Apostle “bonum certamen certavi” (I have fought a good fight).
Before his revolutionary intervention in law reporting only a handful of privileged lawyers who had access to cyclostyled copies of the judgments of the appellate courts were winning cases in our Courts. Chief Fawehinmi obtained such judgments but decided to popularize legal knowledge by embarking on regular publication of law reports. Instead of commending him for the progressive move he was almost derobed. As usual, it was the judiciary that saved him from professional extinction.
The greatest contribution Gani made to legal development in Nigeria was the promotion of public interest litigation. Apart from representing the poor and the underprivileged, he challenged executive lawlessness and subversion of the rule of law. The Nigerian neo-colonial rulers felt threatened by his actions. Desperate moves were made to silence him including detention, seizure of his passport, attempts on his life, and other sinister moves. In one of his detention experiences his cell was exposed to poisonous air which led him to contact cancer. Even though he had the resources to take care of himself Nigerian doctors wrongly diagnosed him and subjected him to treatment for hypertension and cardiac ailments. By the time he was examined abroad it was discovered that he had cancer of a dangerous dimension. He was eventually killed by a healthcare delivery system that that has turned hospitals to mortuaries in Nigeria.
Even though it was generally agreed on all hands that the contributions of the Late Chief Gani Fawehinmi to the promotion of rule of law were remarkable he was denied the rank of Senior Advocate Nigeria by the legal establishment. But the progressive student union of the Obafemi Awolowo University decided to honour the legal icon with the title of Senior Advocate of the Masses (SAM) in 1988. A few years later the University honoured Gani with LL.D (Honoraris Causa). In 2001 the Legal Practitioners Privileges Committee belatedly conferred him with the rank of Senior Advocate of Nigeria (SAN).
However, one of Gani’s post-humous rewards for his contribution to the legal system in Nigeria is the enactment of the Fundamental Procedure Rules 2009. Under the new human rights regime in Nigeria concerned individuals and public spirited organizations can now file actions in courts challenging the violation of the human rights of other citizens. I am challenging the threat to my life in view of the collapsed health care delivery system in the country. Having lost many closed family members and friends including Chief Fawehinmi due to lack of adequate medical care I have filed a suit at the Federal High Court where I am seeking to compel the Federal Government to repair and equip Government owned hospitals and medical centres. (See Femi Falana v. Attorney-General of the Federation (Unreported) Suit No: FHC/IKJ/CS/M59/2010).
GANI’S INTERVENTION IN POLITICS.
Gani’s contribution to the political emancipation of the masses and the entrenchment of democratic freedom in the country goes beyond the ordinary. While many would recall easily the many wars that Gani fought with military rulers that held Nigeria to ransom for three decades, his contribution to the restoration of democracy in the country would easily be remembered. A promoter of the principles of equity and fairness, Gani was not only interested in ensuring that the business of governance functioned in a transparent and accountable manner, he lived all his life fighting to ensure that the conduct of government met acceptable standards and that government took seriously the issue of the welfare of the people.
Gani was particularly worried about the negative impact of corruption in Nigeria. Convinced that corruption remains the strongest impediment to the provision of basic social amenities to the masses Gani was supportive of any official measure to deal with the menace. This was what motivated his decision to appear before the Special Military Tribunals which tried public officers accused of corruption by the Buhari/Idiagbon regime. Even though he paid dearly for that action that did not discourage him from supporting similar efforts in regimes that followed. In spite of the campaign by corrupt elements in the society to frustrate the fight against corruption Gani supported the Nuhu Ribadu-led Economic and Financial Crimes Commission (EFCC) in its bid to rid the country of official corruption, advance fee fraud, money laundering and other financial and economic crimes.
Apart from leading a campaign for the restoration of civil rule Gani spearheaded the effort that led to the expansion of the democratic space by ensuring that the stringent conditions for the registration of political parties designed by INEC were declared illegal by the court. Unfortunately, political opportunists have taken advantage of the liberalized atmosphere to register all manners of political parties. At a time that most Nigerian politicians were coming together on the ground of ethnicity, religion and other sectional interests, Gani set up the National Conscience Party (NCP) whose motto is “the abolition of poverty” and whose manifesto is anchored on a welfare programme for Nigerians. But the enemies of our people dismissed the programme on the ground that the state could not fund a social welfare programme. That is still the sing-song of the country’s bankrupt governing class. Permit me to call on the intellectual community to challenge the handing over of the Nigerian economy to market forces at a time that the United States of America – the bastion of capitalism has bailed out ailing industries with over a trillion dollars.
The NCP has recently done a study on the gross mismanagement of the huge resources of the nation and the obscene profligacy of political office holders in Nigeria. The numerous facts we have gathered concerning the mismanagement of public funds cannot be justified in the midst of groveling poverty in the land. Granted that there is ‘economic meltdown’ the fact remains that the prevailing poverty cannot be explained having regard to the fact that Nigeria made over N34 trillion from the sales of crude oil in the last 10 years. The NCP examined illegal withdrawals of huge sums of money from the Federation Account; the refusal of Federal Government to pay internally generated revenue into the Account, the mismanagement of the NNPC Account and the gross abuse of ministerial powers in the allocation of oil blocks and the renewal of oil licences. The study revealed that revenues accruing to the Federation Account have been adversely affected due to the non-compliance with the Constitutional provision by Ministries, Departments, and Agencies of Government. Although the Federation Account belongs to the federal, state and local governments, it has been operated solely by the Federal Government without the authority or mandate of the other joint owners.
Details of some of the funds unilaterally withdrawn by the Federal Government are:
• Out of the sum of N24,966,963,665,224.50 received as internally generated revenue by ministries, parastatals and agencies of the Federal Government from 2004 to 2007 the sum of N21,651,084,008,087.20 was deposited in the Federation Account leaving a balance of N3,315,879,657,137.26.
• $2 billion being the backlog of accrued Signature Bonus.
• N155 billion which accrued from sales of Federal Government Properties.
• N511 billion being privatization proceeds from 2004-2007.
• N119 Billion being the accrued amount from Education Tax.
In the same vein, the Senate Committee on Transportation recently disclosed that the concession of the Nigerian Port Authority carried out during the President Obasanjo administration did not meet the required standards and constitutional provisions. A report in the Punch Newspaper of July 26, 2010 has it that the Federal Government has generated more than N400 billion from the port concessioning . But there is no record of the fund in the Federation Account. The GMD of the NNPC, Mr. Austin Oniwon equally told the Senate during another panel sitting that some former Heads of State directed the NNPC to withdraw N1.8 trillion from its Account for distribution to certain individuals. Section 16 of the Constitution provides that the Federal Government shall control the commanding height of the economy. But in utter violation of the constitutional provision the oil industry which is the life wire of the economy is completely controlled by imperialists and its local lackeys.
A few months ago the international bid for the sale of Federal Government’s equity in the Nigerian Telecommunication Company (NITEL) was successfully concluded. The preferred bidder (The New Generation Consortium Limited) has not been allowed to pay the agreed price of US$2.5 billion (N375 billion) due to some inexplicable reasons. While poverty is on the increase in the land President Jonathan has decided to acquire three new jets for $21 million (N3 billion). Recently the Federal Government renewed some oil licences for ExxonMobil in the sum of US$600 million whereas a Chinese company had offered US$5 billion for the same licences. Thus, the country lost the whopping sum of US$4.4 billion (N660 billion) in that single transaction.
THE ROUGH ROAD TO 2011.
No doubt, the appointment of Professor Attahiru Jega as the Chairman of the Independent Electoral Commission (INEC) was greeted with approval by Nigerians. The INEC has released the electoral time table in line with the provisions of the amended Constitution and the Electoral Act 2010. Even though the INEC has continued to assure Nigerians of its readiness to conduct “fair and free” elections in 2011, the government has not created the enabling environment for credible elections.
The manipulation of the electoral process just witnessed in Ondo and Gombe states where bye electionS were conducted by the INEC has shown that it is business as usual. Allegations of ballot stuffing and snatching as well as the uses of of armed police personnel intimidate voters were rife. All those who were arrested for sundry electoral offences have not been prosecuted. The election petitions over the 2007 Governorship elections in Sokoto, Ekiti, Osun and Niger are still pending in the tribunals and at the Appellate Courts. The amended Constitution on which the election time table is based has become a subject of another legal tussle. The decision of INEC to conduct Governorship elections in six states where re run election were won by sitting governors has also been challenged in several courts. The desperation being exhibited by some aspirants and their supporters has threatened the 2011 general elections. Some persons have been declared personae non gratae for supporting certain contestants. A governor has declared his state a no go area for other Presidential aspirants in view of the adoption of President Goodluck Jonathan by some elements in the ruling party.
In the light of the forgoing, the commitment of the government to guarantee free and fair elections has been challenged. A former American Ambassador to Nigeria has predicted post election Armageddon which may tear the country apart. Instead of dismissing such fears, it is not too late in the day to engage in a critical review of the whole electoral process. Since it is clear that the registration of voters, Political campaigns and elections cannot be successfully be conducted in four months, the national Assembly should amend the electoral act to allow INEC to conduct the elections in April 2011. The Chief Justice of Nigeria and the President of the Court of Appeal should ensure that all pending elections petitions and election related cases are concluded before the commencement of Party Primaries. Since the Anti-Graft Agencies lack the legal powers to exclude persons who are currently standing trial for serious corruption cases from contesting the fort coming elections, the Prosecutors should apply for accelerated determination of such cases. Otherwise, some of the suspects may win their elections and hide under the cover of immunity to frustrate their trial.
LESSONS FROM BARRACK OBAMA’S CAMPAIGN
Mr. Barrack Hussein Obama’s mother was an American while his father was an African from Kenya. He is married to Mitchele, an African American. On account of his parental background, religion and marriage Barrack was viewed by many of Americans as a complete outsider. But he conducted a political campaign that questioned the commitment of the United States to liberal democracy. He challenged her belief in human rights. He queried an economic system that excluded the majority of Americans from enjoying the dividend of democracy. Barrack also attacked the costly wars being fought by America in Iraq and Afghanistan. He promised to stop the wars and bring back American troops from foreign lands. On account of his courage and determination the American voters elected him as their President.
Two years into his administration President Obama is under pressure to deliver on his electoral promises. His wife was recently harassed by the US media for spending about $20,000.00 for her vacation in Spain. In Nigeria, our sensibility is currently assaulted by the profligacy of political office holders. Indeed, we are no longer shocked by report of gross abuse of office on the part of political rulers and their family members. Hence, nobody has raised an eyebrow in respect of the report that Dame Patience Jonathan and her entourage recently invaded Port Harcourt, Rivers State with 3 jets.
The Prime Minister of Britain, Mr. David Cameron got a telephone call last week that his father was dying in a hospital in France. He and his two brothers boarded a commercial flight from London to Paris to visit the old man who died a few hours after their arrival. It would be recalled that Queen Elizabeth and Prime Minister Tony Blair came to Nigeria in a commercial flight in 2005 to attend the Commonwealth Conference held in Abuja. Under the prodigal regime of General Babangida the Late President Thomas Sankara once asked IBB to give him a ride to Libya for the Conference of the Organization of African Unity (now African Union). Our President has just placed order for 3 aircraft at a cost of $21 million (N3 Billion) in a country where over 70% of the population live on less than N150 a day.
President Obama earns $400,000.00 per annum while the emoluments of the Nigerian President are shrouded in secrecy. The Nigerian legislators are the highest paid in the world even when there is no evidence that they have enacted laws which have impacted positively on the life’s of Nigerians. You will all agree with me that the current mismanagement of the economy would not have been left unchallenged by the Late Gani. The greatest tribute that can therefore be paid to him is for all the oppressed people of Nigeria and their allies to join hands together to fight the vestiges of corruption and exploitation in the country.
It would be recalled that Chief Fawehinmi contested for President in the 2003 General Elections. Through the manipulation of the electoral system he and other progressive elements lost the election. Gani became frustrated and gradually withdrew from the political scene. I believe that if Gani had devoted sufficient time and resources to political mobilization the sky would have been the limit for Nigeria. The challenge before all progressive forces is to rededicate themselves to the struggle for the liberalization of Nigeria. Those who are desirous to defeat the Peoples Democratic Party and other anti-people’s political parties should form a broad coalition and put before Nigerians the issue of national democratic revolution. This is the only way to ensure that the Federal Republic of Nigeria becomes a State based on the principle of democracy and social justice where the security and welfare of the people shall be the primary purpose of government.