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OBSERVATIONS ON THE RULE OF LAW MANTRA -FEMI FALANA

June 4, 2008
The Open Society Initiative for West Africa (OSIWA) and the Legal Resources Consortium deserve commendation for convening a 2-day meeting of civil society organizations to review the delivery of the 7-point agenda of the Yar’adua Administration in the past one year. Upon the inauguration of his Administration on May 29, 2007 President Yar’adua pledged to implement a 7-point Agenda whose benchmarks include: (i) Declaration of national emergency in the energy sector by increasing power supply to 30,000 mega watts; (ii) provision of food security though mechanized agriculture; (iii) creation of wealth through individual and community empowerments; (iv) land reform, development of human capital and improvement of the transportation sector; (v) provision of internal security, issue of Niger Delta to be addressed through dialogue rather than deployment of security agencies to the region; (vi) provision of free and compulsory education to all Nigerian children through the sustenance of the Universal Basic Education (UBE) and (vii) Amendment of controversial sectors of the Constitution like the issue of local government creation. Unlike most state governors who exposed governance to ridicule by celebrating the commissioning of boreholes and market stalls with fun fare President Yar’adua was honest to admit the failure of his Administration to implement the 7-point Agenda in the past one year. According to the President he has pre-occupied himself with planning and thinking of solutions to the myriad of problems plaguing the country. Hence the government has engaged in policy reversals and setting up of panels on the electoral process, power supply, police and security. On their own part the two chambers of the National Assembly are probing the power sector, the Federal Capital Territory, Nigerian National Petroleum Corporation, the transport sector etc. Rule of Law As An Achievement In a recent interview with the Financial Times of London President Yar’adua was asked what had been the greatest achievement of his one year in office. Without any hesitation whatsoever the President identified the rule of law. In his media chat last week President Yar’adua reiterated the commitment of his Administration to the rule of law. But while defending the secret trial of Mr. Henry Emomotimi Okah on the ground that the accused had jeopardized national security the President assured Nigerians that “justice will be done according to the rule of law”. In our reaction to the prejudicial comments of the President the defence lawyers have pointed out that the State resorted to trial in camera in order to cover up the involvement of the military establishment in the sustenance of violence in the Niger Delta. In a mockery of the rule of law which insists on equality before the law Mr. Okah has been charged with treason for allegedly receiving and distributing arms and ammunition to militant groups in the Niger Delta from 2003-2007 while the military officers who are alleged to have removed the arms and ammunition from the Armoury have been treated as sacred cows. We also pointed out that the rule of law regime has detained Messrs Edward Atatah and Bassey Umoren for over two months without trial for refusing to be prosecution witnesses at the secret inquisition of Mr. Okah. Apart from ensuring that ex-governors accused of corruption, money laundering and related offences were charged to court within 48 hours other criminal suspects have been detained without trial in dehumanizing detention camps for the past one year. Some suspects are daily executed extra-judicially by the police and the Joint Task Force. A few months ago the Attorney-General of the Federation disclosed that not less than 300 children were languishing in prison custody with their mothers. Even though the detention of those innocent inmates constitutes a violent violation of the Constitution, the Prisons Act and the Child’s Rights Act etc. the rule of law regime has not ordered their release from prison custody. No doubt, the Yar’adua Administration was commended in the media for releasing the N10 billion belonging to the Lagos State local governments withheld by the defunct Olusegun Obasanjo regime. But the over N220 billion illegally seized from the Niger Delta Development Commission(NDCC) is said to have expired by the Federal Government. For reasons best known to the National Assembly and the President the new Agency to enforce environmental laws, regulations and standards in Nigeria has been excluded from operating “in the oil and gas sector.” The abrupt dissolution of the Governing Councils of Federal Universities, the split of Nigerian National Petroleum Corporation (NNPC) into five subsidiaries, the forceful take over of NICON Insurance breached the establishment laws of the relevant institutions. Right now there are allegations of several violations of the 2008 Appropriation Act by the Executive. From these few examples it is doubtful if the Administration has fully grasped the full implications of the concept of the rule of law. Otherwise it would not view official compliance with a few court orders as the totality of the rule of law. As a bulwark against dictatorial or authoritarian rule the concept implies governance according to law and due process. The main components of the rule of law are (i) that the State is subject to the law (ii) that citizens are equal before the law (iii) that the judiciary is independent to resolve disputes between government and individuals (iv) that human rights are observed. Rule of Law and the Anti-Corruption Crusade In his inauguration speech on May 29, 2007 President Yar’adua pledged to intensify the war against corruption when he said: “We are determined to intensify the war against corruption, more so because corruption is itself central to the spread of poverty. Its corrosive aspects of our national life. This is an area where we have made significant progress in recent years, and we will maintain the momentum”. Notwithstanding such commitment the Yar’adua regime set out to castrate the anti-graft agencies contrary to the rule of law. Firstly, the anti-graft agencies were directed to obtain the written consent of the Attorney-General of the Federation before charging any criminal suspect to Court. When the attention of government was drawn to the illegality of the directive it was withdrawn. Secondly, an attempt was made by the Attorney-General to take over the cases of ex-governors being prosecuted by the EFCC. Thirdly, the Code of Conduct Bureau was made to stop the prosecution of certain public officers pending before the Code of Conduct Tribunal. Fourthly, following the refusal of the EFCC to stop the prosecution of a few powerful criminal suspects its Chairman, Mr. Nuhu Ribadu was sent on a course by the Inspector-General of Police contrary to section 11 of the Economic and Financial Crimes Commission Act 2004 which provides that “The Commission shall initiate, develop or improve specific training programmes for its law enforcement and other personnel charged with responsibility for eradication of offences created by the Act…” Fifthly, the office of the Attorney-General has continued to frustrate the moves by some foreign anti-graft agencies to bring to book certain corrupt public officers who diverted public funds to their foreign accounts. This action violates Section 6 of the Economic and Financial Crimes Commission Act and the United Nations Convention Against Corruption to which Nigeria is a signatory. In his timely letter to the Senate Chief Gani Fawehinmi (SAN) stated the office of the Chairman of the EFCC is not vacant in so far as Mr. Nuhu Ribadu has not been removed pursuant to Section 2 of the Economic and Financial Crimes Commission Act 2004. Professor Taiwo Osipitan has curiously asserted that Mr. Ribadu has been removed by implication. With respect, a public officer cannot be removed by implication under the Nigerian Labour Law. In Olaniyan v. University of Lagos (1985) 2 NWLR (PT 9) 599 the Supreme Court held that a unilateral repudiation of a contract of employment does not per se determined the existence of the relationship of master and servant, rather, such unilateral repudiation results in a wrongful dismissal in respect of which the employment can ask for a declaration of the continuance of the relationship and also specific performance and reinstatement. It is trite law that notice to remove a public officer must be specific and categorical. Indeed, time begins to run when the notice is served on the public officer. Even in the dark days of the defunct military dictatorship in Nigeria notice of removal of public officers from office or employment was either communicated in writing or announced through the mass media. It was never part of our law that a public officer on study leave or sabbatical will be deemed to have been removed from office. The appointment of Mrs. Farida Waziri’ as the EFCC Chairperson “with immediate effect” in defiance of section 2 of the Economic and Financial Crimes Commission Act 2004 which requires the confirmation of the Senate has caused untold embarrassment for the government. As if that was not enough the Inspector-General of Police has deployed Mr. Ibrahim Lamorde to Ningi, Bauchi State as Area Commander contrary to Section 8(3) of the Economic and Financial Crimes Commission Act 2004 which provides that: “The Commission may from time to time, appoint such other staff or second officers from government security or law enforcement agencies or such other private or public service as it may deem necessary to assist the Commission in the performance of its functions under this Act”. While no one has questioned the credentials or suitability of Mrs. Farida Waziri to run the EFCC the changes in the anti-graft agency have been described as “a catalogue of grave breaches of due process” by the SERAP and the CDHR. In his critical analysis of the suspicious reorganization of the EFCC Dafe Onojovwo of THE PUNCH newspapers has rightly observed:

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