June 12: Nigeria’s Political Watershed

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Outside of October 1, 1960, the day that Nigeria gained her independence from Britain and became a sovereign nation, June 12, 1993, is undoubtedly the most significant and remarkable date in Nigeria’s political evolution. While October 1 has retained its pride of place in Nigeria’s history, June 12 suffered a most miserable and unfortunate fate. Every successive administration since 1993, conveniently found a way to play down its significance, from military despots to benevolent civilian leaders. President Buhari’s unprecedented deft political move on Wednesday June 6, 2018, finally put paid to the blinkering of over 24 years, which has not only led to a proclamation of June 12 as Nigeria’s Democracy Day, but bestowed on the late Chief M.K.O. Abiola, the highest honour in the nation. In this special edition, the panel of Chief Mike Ozekhome, SAN, Daniel Hassan Bwala, Monday Onyekachi Ubani, Michael Dedon and Jide Ojo, discuss the significance of declaring June 12, Nigeria’s Democracy Day, and the posthumous conferment of the rank of the Grand Commander of the Order of the Federal Republic (GCFR) on the late Chief M.K.O. Abiola, and the Grand Commander of the Order of the Niger (GCON) on foremost Human Rights Activist, the Late Chief Gani Fawehinmi, SAN, SAM

Buhari’s June 12 Posthumous Awards: Legal and Political Imperatives

By Chief Mike Ozekhome, SAN

Introduction

June 12, was a watershed in Nigeria’s political wilderness. It was the day that, Nigerians had been yearning for. Nationhood found their voice. They unanimously voted for Chief Moshood Kashimawo Olawale Abiola, as President and Commander -in-Chief of the Armed Forces of the Federal Republic of Nigeria. Male and female. Christians and Muslims, Agnostics and Atheists, Politicians and non-Politicians. From North, South, East and West, Abiola won. Even in the Military and Police Barracks. He even defeated his opponent, Bashir Othman Tofa, in his Albassa Gyadi-Gyadi ward in Kano State. But, IBB’s military junta, aided by political, military, civilian and judiciary collaborators (remember the mid night judgement of late Justice Ita Ikpeme?), annulled the freest, fairest, and most respected elections ever held in Nigeria to date. It was most mindless, unconscionable and atrocious. The will of the Nigerian people which ignored the fact that Abiola and Kingibe ran on a Moslem-moslem ticket, was outrageously annulled. The national turmoil, blood-letting, demonstrations, resistance, etc, that followed, were unprecedented. I was one of those fully involved on a daily basis, in the trenches, on the streets, at Yaba/Tejuosho bus stop, Ikeja, Mushin, Igando, Iyana- Ipaja, Ojota arenas and Ikorodu road. I suffered detentions and indignities. We were led by fearless and courageous Gani Fawehinmi. NADECO was unrelenting. Many Nigerians were killed; many maimed and jailed; yet many exiled. Some of us stayed back and fought on, like the Trojans. Never mind the perverse and highly compromised list of the few people (politically partisan), that were invited to Aso Villa, to mark the last June 12 awards. Most of the unsung heroes were deliberately left out. But, thank God, Joe Igbokwe’s epic chronicle of a book, “Heroes of Democracy”, written nearly 20 years ago, captured us all. Like late M.K.O. Abiola would say, ‘you cannot cover the sun with your palm’. From CLO (which I co-founded), to UDD (which I solely founded), to JACON, I fought for June 12. So, for over 2 decades, I clamoured for revalidation of June 12 (not May 29), as Nigeria’s true democracy day.

I knew the time would therefore, come. When the gestation period is over for a pregnant woman, she must surely deliver. It does not matter how – whether through normal delivery or caesarian section. June 12 was all along, like the pregnant woman. She was bound to be delivered. I took the battle for the recognition of June 12 as Nigeria’s Democracy day, to the National Conference of 2014, made up of about 392 great Nigerians, drawn from all spheres and strata of the Nigerian nation.

2014 National Conference: My Submissions

The following is a rehash of the events at pages 185 and 186 of my latest book, “Nigeria, We Hail Thee”:

“JUNE 12 – MY CONTRIBUTION TO THE JUNE 12 DEBATE AT THE 2014 NATIONAL CONFERENCE”. On Thursday, the 12th of June, 2014, Hon Orok Duke, had moved a motion at the plenary session, for acknowledgment of the heroic struggles of late Chief M.K.O. Abiola, that culminated in his murder.

Delegates one after another, commented on the importance of June 12. In my contribution, I informed plenary that without June 12, there would not have been May 29. I argued that June 12 was more important and momentous in the history of Nigeria, and deserves full blown recognition.

It was my argument that Chief M.K.O. Abiola, in his patriotic sense of redemptive messianism, paid the ultimate, supreme price, by sacrificing himself for democracy. For this, he is Nigeria’s true hero of democracy, and nothing must be done to diminish his importance.

I further argued that, under successive brutal military regimes, I was a victim, suffering about eleven detentions. Some of us were killed, some maimed, many detained, imprisoned, while some others were forcefully exiled. It is therefore, surprising to see some delegates not desiring to give June 12, its rightful place in history.

Indeed, I urged the Chairman to declare one minute of silence for Chief M.K.O. Abiola, and all the faithful departed who were killed during June 12, 1993, crises, whether they be from the North, South, East or West.

I urged that June 12 is not just important, but constitutes the watershed of Nigeria’s democracy, and that it should not be trivialised. “Some people paid the supreme price for us to enjoy the democracy that some politicians are messing up today, I concluded”.

The Conference Chairman, ordered a minute silence for all the victims of June 12, as suggested by me.

Buhari’s Declaration of June 12 is Historic

I therefore, thank President Muhammadu Buhari for declaring June 12 Nigeria’s Democracy Day, and honouring Chief M.K.O. Abiola, and my late mentor, Chief Gani Fawehinmi, SAN, SAM, with the highest and second highest honours in Nigeria.

To me, it is not the right argument that PMB did it for political reasons. Yes, he may very well have done it to shore up his battered political image, and fast dwindling democratic credentials. But, the inescapable fact is that, he has done the right thing, for which history will remember him. This is the more reason, I believe the argument should now proceed, why he should retire quietly to his Daura home, having done one great thing, for which he will be remembered.

When Chief Olusegun Obasanjo wrote his scathing letter to PMB early this year, I applauded the letter for the import of its correct contents, even though I am not a fan of OBJ. I argued then that, we should listen to the message and not look at the messenger. In the same vein here, we should look at the historical significance of PMB’s political masterstroke, on the June 12 brouhaha; and not him as a person, or the ulterior motives for which he did it. I applaud him, for this singular act that breathed fresh exhilarating oxygen into his lack lustre performance.

Was the Conferment of Posthumous National Honours on Late Abiola and Gani Legally Grounded?

Buckets of ink have so far been poured, and tons of lachrymal effusion exerted, on whether Buhari could legally confer posthumous awards on late iconic Abiola and Gani. My answer is a loud “yes”. The opponents of the award readily cite Section 3 of the Honours Warrant, subsidiary legislation of the National Honours Act. It provides:

“3. Mode of appointment to Orders, etc.

(1) The President shall by notice in the Federal Gazette signify his intention of appointing a person to a particular rank of an Order

(2) Subject to the next following paragraph of this article , a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose-

(a) the insignia appropriate for that rank; and

(b) an instrument under the hand of the President and the public seal of the Federation declaring him to be appointed to that rank.”

To these opponents, the phrase, “in person” in section 3 (2), simply means that for a person to be qualified to receive the award, he must be physically present to receive it. It cannot, therefore, be conferred in absentia, they argue.

Respected jurist, Hon Justice Belgore, Chief Justice of Nigeria (2006 – 2007), and Chairman of the National Honours Committee, erroneously falls into this category. I respectfully, disagree with them.

An honour is an honour. It can be conferred on a living person. When such opportunity does not avail him, he can be honoured posthumously. Streets are still being named, and statues being built after Martin Luther King Jnr, Murtala Muhammed, Nelson Mandela, Zik of Africa, Obafemi Awolowo, SAN, Kwame Nkrumah, Ahmadu Bello, Tafawa Balewa, etc., many, many years after their demise. This is posthumous.

This logic against posthumous awards, defies cases of persons, who though alive, are bedridden, or too incapacitated for them to appear physically to receive the awards. Should they by reason of this alone, be denied of their due reward? I think not.

Happily, the above argument, has been torpedoed by the clear provisions of Section 3(3) of the same Act, which provides:

“if in the case of any person it appears to the President expedient to dispense with the requirements of paragraph 2 of this section, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the directions”.

“In such a manner as may be specified in the direction’’, has given the President wide discretionary powers, amplitude and plenitude, to confer awards on all persons, as he shall deem fit, whether such persons be present, or absent, alive or dead.

In any event, in statutory interpretation, courts lean to that which would not create absurdity. Thus, in NNPC v ZARIA & ANOR (2014) LPELR-22362 (CA), it was held that:

“The law recognises that where reliance on literal interpretation of wordings will lead to absurdity, a court is permitted to depart from that principle of interpretation’’ Per Abiriu, JCA (P.68, Paras. B-C). Also, in ORAEGBUNAM v CHUKWUKA & ORS (2019) LPELR-4796 (CA), it was held that:

“It is the general principles of rules of interpretation, that where words are clear and unequivocal, they should be given their natural, ordinary or grammatical meaning. My view is that, there is a rider to that, in that, if giving the words in the statutes their natural or grammatical meaning will lead to absurdity or injustice, resort could be made to internal aid within the statutes or external aid outside it, in order to resolve the ambiguity, to avoid doing injustice. See MOBIL OIL NIG. v R.B.R (1997) 3 SC 53: ORJI v FRN (2007) 13NWLR (PT 1050) 55. I am fortified in this view, by the remarks of Onu, JSC in OJUKWU v OBASANJO (2004) 40 WRN : Where the learned jurist had this to say at page 106: ‘’thus where literal interpretation of word or words will result in an ambiguity or injustice, it will be the duty of the court to consider the enactment as a whole, with a view to ascertain whether the language of the enactment is capable of any other fair interpretation, or whether it may not be desirable to put a secondary meaning on such a language, or even to adopt a construction which is not quite strictly grammatical’’ See also PDP v NEC (1999) 11 NWLR (PT 626)200 At 242’’ Per Sanusi, JCA (P.39, paras. A-E).

Consequently, I humbly submit that, the more plausible interpretation to be given to Section 3 of the Honours Warrant, is that PMB can confer honours posthumously on Abiola and Gani.

Would Abiola and Gani Have Accepted these Awards?

The argument of political pundits and critical voices, should now turn to whether these honours, though well- deserved by Abiola and Gani, would have been accepted by them, giving the prevailing atmosphere of morbid fear, executive rascality, recession of human rights, rule of law and civil liberties of the Nigerian citizens. The answer is a categorical “no”.

Though well intended, even if for political reasons by PMB, I am convinced that MKO and Gani would have out rightly rejected the national honours, if they were alive. I will give my reasons anon. But, I must confess that, nothing good comes at a bad time, and nothing bad comes at a good time. So, the timing, to me, is immaterial. But, both Abiola and Gani, if they were alive, would have said “no, thank you sir”, to PMB.

On 14th December, 2008, barely 9 months before his death, Chief Gani had outrightly rejected the national honour of OFR (Officer of the Federal Republic of Nigeria), bestowed on him by the then President, Umaru Musa Yar’Adua. In rejecting the honour and giving his reasons, Gani said, inter alia:

“Today I am seventy years and 8 months old. I am struck down by lung cancer, for which I have been receiving medical treatment outside my country because my country Nigeria has one of the poorest medical services in the world, but one of the richest countries in the world in terms of revenue”.

Question: has anything changed? Answer: “No”. Even PMB has himself has been receiving medical treatment in London, outside Nigeria. Deprecating the poor socio- economic and political situation in the country, Gani was emphatic that: “whether now or in the life beyond, how can I wake up in the morning and look at the insignia of honour bestowed on me, under a government that persecutes…Nuhu Ribadu?” (Whom he believed did a great job on the anti-corruption fight).

Does this Government not persecute political opponents, opposition and critical voices? Answer: yes. This Government is intolerant of opposition, and plurality of voices or opinions.

Gani had continued:

“A government that covertly and overtly encourages corruption, has no honour in its arsenal of power to dispense honour. Consequently, I reject the dishonour of OFR termed “honour” given to me by the Federal Government… I wish to reiterate that, in all ramifications of human existence, the masses have found themselves in the doldrums of pain occasioned by gross misgovernance of the country… the decadent socio-economic situation does not engender the well-being of ordinary people, and there is no hope in sight. In view of the foregoing, I reject the award of OFR”.

The question is whether anything has changed for the better since 15th December, 2008, when Gani, in rejecting the Yar’Adua National honour, listed 8 critical areas the then Government had failed. I am afraid, nothing has changed. The situation has, rather, got worse. The areas Gani had listed included “the abolition of poverty from the face of the country, the unqualified need to preserve, defend and protect the fundamental human rights; the governance of our country through democratic process; the subjection of everybody and everything to and under the Rule of law; the right of the people to free and qualitative education at all levels; the right of the people to free and qualitative health services and facilities; the strengthening of our economy through sound development of infrastructures and corruption” (holistic and all- embracing fighting of same, without discrimination).

Gani had ended his rejection of the national honour, with a “clarion call on the suffering masses” to “unite and fight for your legitimate right to the abolition of poverty. Why should you continue to suffer while your leaders and their families continue to enjoy the best at your expense?”. Thus, Gani would have rejected the honour of GCON. But even then, I thank PMB for doing the right thing, just like Yar’Adua had done.

As regards the undoubted martyr of democracy, Chief MKO Abiola, who paid the supreme price in his quest for genuine redemptive Messianism, he would also have rejected the GCFR given him, except certain things were first done.

In his June 11, 1993 reclamation speech, popularly called the “Epetedo Proclamation”, Abiola had declared, most fiercely, inter alia:

“I hereby, invoke the mandate bestowed upon me by my victory in the said election, to call on all members of the Armed Forces and the Police, the Civil and Public Services throughout the Federal Republic of Nigeria, to obey only the Government of National Unity that is headed by me, your only elected President.

“My Government of National Unity, is the only legitimate, constituted authority in the Federal Republic of Nigeria, as of now. People of Nigeria, these are challenging times in the history of our continent, Africa, and we, in Nigeria, must not allow ourselves to be left behind. Our struggle is the same, as that waged by the people of South Africa, which has been successfully concluded, with the inauguration of Mr. Nelson Mandela as the first African President of that country.

“The antics of every minority that oppresses the majority, are the same. They will try to intimidate you with threats of Police action. But, do not let us fear arrest. In South Africa, so many people were arrested, during the campaign against the Pass Laws, for instance, that the jails could not hold all of them. Today, apartheid is gone forever.

“So, let it be with Nigeria. Let us say goodbye forever to minority rule by the military. They talk of treason trials to halt the march of history? People of Nigeria, our time is now. You are the repository of power in the land”.

Recall that Abiola had, whilst in government captivity, rejected his bail, which was burdened with unacceptable conditionalities. If Abiola were alive, he would have demanded that, before he accepted the GCFR honour (reserved only for Presidents and Heads of State), the presidential elections in which he clearly emerged the winner in the freest, fairest, and most credible elections ever held in Nigeria, should first be declared by the present INEC which succeeded Professor Humphrey Nwosu’s National Electoral Commission (NEC), which had conducted the election. He would have insisted that he be first formally pronounced “President, Commander-In- Chief, Federal Republic of Nigeria”, before accepting same. He would insist that his campaign slogan of “farewell to poverty”, be first accomplished, and the masses raised from doldrums and their state of nadir. Abiola, in his witty wisecracks, would have wondered why he should applaud PMB for the award, by merely giving him a button for his shirt, that the military of which PMB formed a part, had snatched from him. He would have argued that the Nigerian peoples’ head, should not be shaved in their absence, through his unilateral acceptance of the awards, when the mandate they freely gave to him had not been formally validated and pronounced.

To me, the argument of what reasons actuated PMB in declaring June 12 our democracy day, and giving posthumous awards to Abiola and Gani, do not arise at all. If anything, the very acts themselves, form the very prong and catalyst to hold PMB strictly accountable to the ideas, philosophy, and democratic credentials and convictions that drove these two great sons of Nigeria, nay, Africa, which his Government lacks in tons.

These include socio-economic justice, egalitarianism, respect for human rights, observance of the rule of law and due process, treatment of all Nigerians equally, wholesome and non-selective fight of corruption, good, transparent and accountable governance, respect for the will of the people through a fair, just, credible and respectable electoral process, etc. This Government, is glaringly short of these glittering credentials.

Buhari’s To-do List

In endorsing and applauding PMB for this historic feat, let me add that, he must now quickly move to carry out the necessary legal, constitutional and legislative requirements to bring this to fruition. For now, the pronouncement remains in the realm of executive fiat. PMB should also go ahead, with the necessary political will, to immediately restructure the lopsided Nigerian Federation, remove the glaring nepotistic, tribalistic and cronyistic imbalances, and enthrone true, fiscal federalism. He should also ensure that, the June 1993 presidential election results, are officially declared and Abiola formally pronounced the winner, and therefore, President of Nigeria. His name, undoubtedly, will be inscribed in gold in Nigeria, whether or not he goes ahead to contest the 2019 presidential election. To me, he should not bother to contest, even though it is his constitutional right to do so. He should play the Nelson Mandela card. God bless Nigeria.

The Need For Truth And Reconciliation Committee

Perhaps, what the June 12 imbroglio has thrown up, is the urgent need, aside from immediate restructuring, for a Truth and Reconciliation Committee. Many questions are left unanswered: who killed Abiola? How and why did Abacha die? Who killed Abiola’s wife, Kudirat, the flaming Amazon who died in the June 12 struggle? Who killed Bagauda Kaltho? Who killed Alfred Rewane? Why were Ken Saro-Wiwa, Dr Shola Omatsola, Alex Ibru, Mrs Sulia Adedeji, Major General Shehu Musa Yar’Adua, Dr Bisoye Tejuosho, et al, killed? Who killed Bola Ige? Who annulled the election? Why was it annulled? Why were the Igbos massacred during the 3 year pogrom of a civil war? Why were the three Rs of Reconciliation, Reconstruction and Rehabilitation, never achieved? What has happened to our oil wealth since its first discovery at Oloibiri in 1956? Why is Nigeria burdened with exceptionally bad leadership, and a shamelessly docile followership that is too scared to hold the leadership accountable and responsible to it? Oputa Panel’s Report and the various reports of national Conferences held in the last 3 decades, will be very useful here also. We need answers to the whys, wheres, hows, whichs, whats, etc., of Nigeria’s stunted growth. Nigeria, we hail thee.

Chief Mike A. A. Ozekhome, SAN, SAM, OFR, FCIArb., Ph.D, LL.D, Constitutional Lawyer and Human Rights Activist

June 12 as Democracy Day: Implications for the Polity

By Daniel Hassan Bwala

“June 12, 1993 was the day when Nigerians in millions expressed their democratic will, in what was undisputedly the freest, fairest and most peaceful election since our independence. The fact that the outcome of that election was not upheld by the then military government, does not distract from the democratic credentials of that process.”

–President Muhammadu Buhari, GCFR

It is no longer news that the Nigerian President, Muhammadu Buhari, has announced his recognition of the election of the then Social Democratic Party’s Presidential flag-bearer, Chief M.K.O. Abiola; whose presumed election is still reputed undoubtedly to be the fairest and freest, since the nation’s independence. The President also announced his intention to confer the national honour of Grand Commander of the Order of the Federal Republic, GCFR, on the late Chief Abiola and the national honour of Grand Commander of the Order of the Niger, GCON, on his then Vice-Presidential running mate, Ambassador Babagana Kingibe, and late Human Rights Activist and Lawyer, Chief Gani Fawehinmi, SAN. The nest of the legal community, has, as would be expected, been since stirred with several interpretations, insinuations, etc.

The Position of the Law

The National Honours Act, 1964 empowers the President of the Federal Republic to confer honours, decorations and dignities in accordance with the provisions of the Constitution. May I be quick to state that, these are honours and do not confer political power or authority. It is not in doubt that GCFR is inherent in the office of the President, as GCON is inherent in the office of the Vice-President. Rather than conferred or given, it is inherent in the office, upon occupation by an individual.

These honours or orders, are akin to the British Order of Honours, in form and structure. It can be conferred on anyone, including the GCFR. That the honours were conferred on the duo of Chief MKO Abiola and Amb. Kingibe, does not make them, legally speaking, former President and Vice-President, respectively. It is a matter of Nigerian practice and custom, to give GCFR to former Presidents. There are constitutionally prescribed prerequisites for becoming a President or Vice-President, none of which includes reception of national honours. Contrary to popular notions, the national honour of GCFR is not the exclusive preserve of Presidents of Nigeria, because the Act clearly stipulates in Section 2 the eligibility for conferment, and does not limit it to any particular kind of persons or occupants of any offices; same thing with the others such as the GCON, OFR, etc. It however, states just a criterion, that a person needs to be a Nigerian to qualify for conferment of the honours. It goes too, without saying that, these honours are given in special recognition of heroic acts, efforts and services.

Further to the above, Chief Obafemi Jeremiah Awolowo, GCFR, was reported to be a recipient of the honour of GCFR from President Shehu Shagari. He was not a former President In fact, he contested for the nation’s highest office three times, and was the first premier of the then Western Region, but not a former President.

Furthermore, it has been argued in various quarters that, the honour cannot be conferred in absentia or on the dead. I however, beg to differ, both legally and morally speaking. The proponents of this argument quote Section 3(2) where it is states that the President shall confer the honour at an investiture on the recipient when “…..receives from the President in person”. Interestingly, a careful look at the entire Section 3 puts this argument to rest. It provides in section 3(3):

“… If in the case of any person it appears to the President expedient to dispense with the requirements of paragraph (2) of this article, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the direction.”

So, Section 3 paragraph (2) begins by stating that subsection two paragraph two is subject to subsection two paragraph three, which gives the President the unfettered discretion to dispense with the requirement of physical presence. I do not agree with those in the legal community, who vehemently contend that it cannot and should not, be conferred on the dead. If a Nigerian deserving of such honour dies in the process of his execution of heroic deeds, does the fact of death rob him or strip him/her of the possibility of recognition? I think not, and neither is that in tandem with natural justice, equity and good conscience. The President was right, to have conferred the honour on them, albeit posthumously.

Agitation for Chief Abiola to be Declared President: Matters Arising

What I would not advice in the present scenario, is the Presidency acting on the agitation for a declaration of Chief MKO Abiola, as a former President of Nigeria. That would require a declaration of the results by INEC, because the annulment happened on June 12, 1993 before the results could be announced. A gamut of legal issues would arise, if he be so declared, ranging from benefits to the appropriate legal status of his running mate, Amb. Babagana Kingibe, who is still alive. Are we prepared to “serve justice” to that extent? Again, I don’t think so.

The President also announced in his letter, that the hitherto May 29 as Nigeria’s Democracy Day, would henceforth be June 12 in honour of the late Chief Abiola. Suffice to say that, if the declaration of June 12 as the new Democracy Day is for the purpose of hand-over of power as against May 29, then a constitutional vacuum would have been created, that would require to be filled. This is because the tenure of the present government elapses by May 29, and not later.

So, if June 12 declaration is for the purpose of hand-over of power, then the relevant laws including the Electoral Act, Public Holiday Act and the Constitution, would have to be amended to accommodate this. Nevertheless, from the foregoing, it would be absurd for the Presidency to contemplate or attempt to shift the date of hand over from May 29 to June 12, because of the declaration. This is because May 29 has constitutional legality, but June 12 does not. June 12 is an attempt at restorative justice, and the best of which, is the conferment of the national honours by the Federal Government. It does not include a making of the presumed winners of June 12, legal winners, hence the Federal Government must, of necessity stop short of extending the hand-over date. That would be illegal.

It is incontrovertible that, it lies within the executive powers of the President, to make such declaration as to public holidays when the Public Holiday Act is accordingly amended. The key concern or disparity between the two, is the fact that one election was truncated, and another saw a successful democratic transition into office. Although this act has been viewed as an attack and a heavy but indirect blow to the former President, Chief Olusegun Obasanjo, on whose head and honour hangs May 29; it is a commendable act, since Nigeria’s Democracy Day will no longer be a day to just remember peaceful and successful democratic transition, but rather, a day to celebrate and commemorate the importance of the democratic credentials of that election; the values of free and fair franchise, safe and violence-free elections, which will further reawaken the consciousness of present and future generations of Nigerians to yearn for elections free of violence, malpractices and its related vices.

Political Master Stroke

Viewing from the political standpoint, a lot of analysis have trailed the recent decision of the President. While this is seen in some quarters as a desperate political move by the Presidency, and by extension the All Progressive Congress (APC) to win the hearts and votes of the West in the upcoming elections, I for one, see it as an effective utilisation of the double-edged sword principle; a master-stroke, and a commendably effective political strategy.

This is strategic, in the sense that, the President who has lost the favour of some former Heads of State and some Military Generals, such as General Ibrahim Badamasi Babangida and Ex-President Olusegun Obasanjo, as regards his re-election bid, has by this singular act, dealt a heavy blow, and stirred the long quiet that has followed the annulment of the June 12 election by Babangida. It brought up the General, to public odium and ridicule again. The regrettable deed that was buried for 18 years, was exhumed suddenly. And by the same masterstroke, the President took off the crown and honour of May 29 from President Olusegun Obasanjo’s head, and rather, placed it on Chief MKO’s head. This, in fact, is an effective utilisation of basic principles of power. Without verbal slurs, invectives, polemics or letters, the President by what is viewed as a heroic act, dealt a heavy casualty to his political opponents. The President won a war, without shooting a bullet.

Conclusion

In conclusion, the West and the families of the honourees, have done the right thing by accepting the honours on behalf of their heroes. For the West, this would be too tempting to refuse. After all, they still have the Vice-Presidency in hand, and the hope of the Presidency in 2023. So, to be greeted with these offers, inclusive of the honour done to the late human rights activist and legal icon, Chief Gani Fawehinmi, the West would be foolhardy not to accept the irresistible offers.

Daniel Hassan Bwala, Esq. LLM (UK), MCIArB (UK), Legal Practitioner, Notary Public and Barrister, Lincoln’s Inn, London

 

June 12 Democracy Day: Buhari’s Political Masterstroke

By Monday Onyekachi Ubani

Political Master Stroke

The decision of President Muhammadu Buhari to declare June 12 as Democracy Day, and the conferment of the highest honour in the land posthumously on the late Chief MKO Abiola, was a political masterstroke and a good decision well taken. This wise and well thought out decision, has been widely applauded by men and women of goodwill in Nigeria. Indeed, this decision has healed some big wounds, and cured some political diseases that have plagued this nation for over 24 years. At last, justice was done, and the Federal Government of Nigeria acknowledged injustice and wrong done to Nigerians in general, and to the Abiola Family, in particular.

What a way to redress an injustice and to ease tension, in a nation that is battling with economic and political issues, including insecurity and mass disenchantment in the land? Despite this good gesture which was widely applauded by Nigerians of all divide, there are few who are still arguing about the legality of both the Democracy Day and the award. For the award, some of the opinion is that, it cannot be conferred on a dead person who they argue has lost his or her citizenship by virtue of death, while others argue that posthumous awards are reserved only for those in the Military.

Issues

My humble view about these issues are as follows: as long as the National Honours Act does not expressly exclude the award of GCFR on a dead person, then it may be wrong to criticise this good gesture made by President Buhari, which deserves an accolade and not criticism, as it were. Secondly a dead person, does not cease to be a Nigerian because he or she is dead, as citizenship is not derived on whether one is living or dead, but as defined by the Constitution, which incidentally, is elaborate and without any ambiguity on this.

One other issue that is eliciting debate, which I consider healthy, is whether handover date of this Government will be extended to June 12th, 2019 instead of May 29th, 2019.

My intervention on this, is that this present Government will carry out their handover properly as prescribed in the Constitution on the 29th of May, 2019, there won’t be any extension for a day. However, the subsequent Governments after May 29th, 2019 will be sworn in on 12th June, 2023. What that means is that, before that time, the various laws and the Constitution would have been amended appropriately, to accommodate these changes as announced by the President.

Advice

My advice is that, we should bury our political differences and appreciate a good gesture from our leaders, when they perform to general expectation. The present act of President Buhari on June 12 and MKO Abiola, deserves appreciation and commendation, and not condemnation. It is IMMATERIAL if the motive is said to be POLITICAL, after all, it was political when former President Ibrahim Babangida annulled the election of June 12, 1993 that was adjudged the fairest, freest and the most credible in the history of Nigeria.

Lastly, it is important that we point out to Mr President, that Professor Humphrey Nwosu, the Chairman of the electoral body that conducted that historic election, deserves an award, and I believe that, the President will correct this glaring omission very soon.

Monday Onyekachi Ubani, Legal Practitioner, 2nd Vice President, Nigerian Bar Association

 

No! National Awards Cannot be Awarded Posthumously

By Michael Dedon

There have been varied reactions to the recent posthumous national award of the Grand Commander of the Federal Republic (GCFR) on Late Chief M.K.O. Abiola (the assumed winner of the 1993 Presidential Election), and a posthumous national award of Grand Commander of the Order of Niger (GCON) on Late Chief Gani Fawehinmi, SAN (the renowned and respected Human Rights Activist Lawyer) by President Buhari. The raging controversy, is as regards the legality of the awards, precisely on the issue of whether the awards can be bestowed on deceased persons.

As a preliminary point, I personally feel the awardees are most deserving and worthy recipients, even if the awards were politically motivated.

Per Justice Belgore, Former CJN

Justice Belgore, who was the Chief Justice of Nigeria (CJN) between 2006 – 2007, opined that honouring Abiola with GCFR, was illegal. He stated that no national award could be awarded posthumously, let alone the GCFR – the highest honour in the land.

“It is for people living,” Belgore was reported to have said. “The only thing they could do is to name a place after him, but national honours award, no.”

Femi Falana, SAN’s Response

In reaction to Belgore’s assertion, a prominent Nigerian Lawyer and Senior Advocate of Nigeria, Mr. Femi Falana, observed that the former CJN did not refer to any Section of the National Honours Act or any other law, that has been violated by President Buhari. He argued that, the National Honours Act, has not prohibited or restricted the powers of the President to confer national honours on deserving Nigerian citizens, whether such a person is dead or alive.

“No doubt, paragraph (2) of the Honours Warrant made pursuant to the National Honours Act, provides that ‘a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose…’

“But paragraph (3), thereof, has given the President the unqualified discretion ‘to dispense with the requirement of paragraph (2) in such manner as may be specified in the direction,” the Senior Advocate said.

He stressed that, since the national awards conferred on Chief Abiola and Chief Fawehinmi cannot be received by them in person, the President may permit their family members to receive same on their behalf.

Rejoinder

In this rejoinder, I intend to join issues with the learned SAN, on whether or not the awards of the GCFR on Chief Abiola and the GCON on Chief Fawehinmi, were legal in the circumstances in which they were made.

To properly situate the subject-matter of this discourse, it will be necessary to give a précis of the relevant provisions of the relevant law on the subject. The enabling legislation is the Honours Warrant, subsidiary legislation of the National Honours Act and the applicable provisions are as follows:

“3. Mode of appointment to Orders, etc.

(1) The President shall by notice in the Federal Gazette signify his intention of appointing a person to a particular rank of an Order.

(2) Subject to the next following paragraph of this article, a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose-

(a) the insignia appropriate for that rank; and

(b) an instrument under the hand of the President and the public seal of the Federation declaring him to be appointed to that rank.

(3) If in the case of any person it appears to the President expedient to dispense with the requirements of paragraph (2) of this article, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the direction.”

Falana’s position is predicated on paragraphs (3) above, where it is provided that the requirement of paragraph (2) above may be dispensed with, if it is expedient to the President. The easiest way of dealing with this issue, will be to first address the issue of who is a ‘person’ under the law, since the enactment is replete with that word.

The enactment says the President shall by notice in the Federal Gazette, signify his intention of appointing a ‘person’ to a particular rank of an order. Flowing from the above, the gravamen of this discourse, will lie in determining whether a dead person, still has the right to be continued to be addressed as a ‘person’, or whether this right is foreclosed by reason of death. In other words, if we are agreed, and there is no divergent opinion on the unassailable fact the award is to be bestowed on a ‘person’, then the next inevitable question will be whether or not Chief Abiola and Chief Fawehinmi fall within the legal definition of ‘persons’ in law.

The Interpretation Act, CAP 123 LFN 2004 defines a person as follows:

“Person” includes anybody of persons corporate or unincorporate.”

Furthermore, Black’s Law Dictionary 6th Edition, pg. 791, defines ‘person’ as follows:

“In general usage, a human being (i.e. natural person), though by statute term may include labour organisations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.”

Case Law

To add further fillip to the definition of persons, the following case law authorities are apposite on the point: The Supreme Court in IBRAHIM v JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 at 36 (1998) 12 SCNJ 255, espoused thus:

“The definition of the word “person” in the legal sense under the Nigerian law, is not limited to natural persons or human beings only. It clearly admits and includes artificial persons, corporation, sole company or any body of persons corporate or incorporate.”

In the case of UDEOGARANYA v ADEYI (2010) LPELR-4415(CA), the Court of Appeal also defined a person as follows:

“It is beyond dispute that the word “person” when used in legal practice, such as in a legislation or statute connotes both a “natural person”, that is to say, a “human being” and an “artificial person” such as corporation sole or public bodies corporate or incorporate”.

It is respectfully submitted that, ‘person’ referred to above is not just anybody, but a legal person. There is no doubt that, it is legal persons being referred to in acts and statutes. The question that naturally follows, will be whether a dead person, is a legal person in law. It is settled under our laws that a dead person ceases to be a legal person or to have legal personality. The Supreme Court of Nigeria, in CHIEF JOHN EHIMIGBAI OMOKHAFE v CHIEF JOHN ILAVBA OJE IBOYI ESEKHOMO (1993) LPELR – 2649 (SC) held thus:

“Generally, a dead person is no longer in the eyes of the law, a person, but in the eyes of the law, he is a person who ceased to have legal personality from the date of his death, and as such, can neither sue nor be sued personally or in a representative capacity. The personality of a human being, is extinguished by his death. The common law principle expressed in the maxim action ‘personalis moriturcum persona’, presupposes a cause of action arising when both the plaintiff and the defendant are alive, and will regard the cause of action as ceased, upon the death of either the plaintiff or the defendant. See KAREEM v WEMA BANK LTD (1991) 2 NWLR (Pt.174) 485; AKUNMOJU v MOSADOLORUN (1991) 9 NWLR (Pt. 214) 236 (CA) and HODGE v MARSH (1936) A.E.R 484.”

It was also held in NIGERIAN NURSES ASSOCIATIO v A.G FEDERATION (1981) 11 – 12 SC 1 that the term ‘person’ connotes existence of life in an entity, be it natural or artificial.

Furthermore, in NZOM v JUNADU [1987] 1 NWLR (PT. 51) 533 at 539, the Supreme Court, per Oputa, JSC (of blessed memory) held that “dead men are no longer legal persons in the eye of the law, as they have laid down their legal personalities with them at death. Being destitute of rights or interest, they can neither sue nor be sued.

It follows therefore, that persons in the legal sense include “natural persons or human beings”, and also “artificial persons” such as corporate and incorporate bodies, imbued with life. A lifeless body or corporate entity, is not a legal person in law. Ipso facto, there can be no doubt therefore, that the President may validly bestow national honours on “natural persons or human beings, and on artificial persons (corporations), but the President cannot bestow national honours on dead persons, who are not legal persons in law.

Characteristics of a Living Person

The emphasis of the law is on a living person, and not just any person per se. To proceed further, we may need to highlight the distinguishing characteristics of a living person, as against a dead person. The difference between the two concepts boils down to “existence”. Here’s what really exists:

1. An arrangement of matter with various traits, such as a metabolism, the ability to process information, etc.

2. An arrangement of matter that once had those traits, but now doesn’t.

You can choose to label either, both, or none, with the word “person,” but your choice alters nothing about what actually exists. If you call the second thing a person, it will be an arrangement of matter that once had those traits, but now doesn’t. If you don’t call it a person, it will still be an arrangement of matter that once had those traits, but now doesn’t.

In a nutshell, a person is a being that has certain capacities or attributes, such as reason, morality, consciousness or self-consciousness, and being a part of a culturally established form of social relations such as kinship, ownership of property, or legal responsibility. A dead person is a person who once had those attributes, but now doesn’t.

On their demise, both Chief Abiola and Chief Fawehinmi, SAN lost the characteristics of natural persons or human beings. In a nutshell, the duo became former ‘persons’ and to stretch it a little further, became former

‘Nigerians’ (apologies to Senator Dino Melaye). They can only be referred to, in past and not present tense. If the highest Court in the land has affirmed positively that a dead person is no longer a person in the eyes of the law, then to have conferred the respective national honours on both Chief Abiola and Chief Fawehinmi, SAN as has been done in this instance, is in clear breach of the National Honours Act.

In the interpretation of Statutes, the cardinal rule is that, where the provision of a statute is clear and unambiguous, the duty of the court is to simply interprete the clear provision, by giving the plain wordings their ordinary interpretation without more. However, where confronted with an ambiguous statutory provision, the basic task before a Judge, is to ascertain the intention of the Legislature.

In ascertaining the intention of the draftsman of the National Honours Act, it is clear that, it was never intended that the award is to be conferred on a deceased Nigerian. Paragraph (3) of the Warrant to the National Honours Act referenced by Mr. Falana, SAN, is only applicable if the honouree is unavoidably absent, and not that he/she is dead. If the intention was to confer the honour posthumously, the Act would have expressly stated so. This is so because, in the same piece of legislation, a provision was made for posthumous awards for dead servicemen.

If the legislation pertaining to the Armed forces makes specific provision for posthumous award, while the preceding provision for award on deserving persons makes no such provision, one would have thought that those advocating so vociferously for posthumous award, would have asked themselves one simple question: “why would one provision be silent on the issue of a posthumous award, whilst another provision in the same piece of legislation is specific on the point”?

Premised on the foregoing, it is my candid opinion that the awards bestowed on Chief Abiola and Chief Fawehinmi, SAN respectively, though well deserved, are illegal. The National Assembly may need to amend the law to accommodate posthumous awards, like the instant one. The Federal Government, may also do well to rename historical or national monuments, after these deserving former personalities.

Michael Dedon, Legal Practitioner, Managing Associate, Giwa-Osagie & Co., Lagos.

 

Burden of June 12, 1993 Polls on Nigeria’s Future Elections

By Jide Ojo

“We recognise that, an error has been committed. We will no longer tolerate, such perversion of justice. This honour, is for the grievous injustice done to the country. It is meant to assist at healing the wounds, and building national reconciliation of the 25 years of wounds caused by the annulment. I earnestly urge Nigerians, to accept it in good faith, and bury the past of June 12.”

– President Muhammadu Buhari while honouring Chief MKO Abiola with posthumous national honour of GCFR on June 12, 2018.

Like a bolt from the blue, President Muhammadu Buhari on Wednesday, June 6, 2018 pleasantly surprised the pro- democracy movement, when he issued a press statement changing Nigeria’s Democracy Day from May 29 to June 12, starting from 2019. He did not stop at that, he also tacitly recognised the un-inaugurated Bashorun Moshood Kashimawo Olawale Abiola’s presidency, by conferring the highest national honour of Grand Commander of the Order of the Federal Republic (GCFR) on the presumed winner of the June 12, 1993 presidential poll, which was annulled by the Military junta led by Gen. Ibrahim Badamasi Babangida on June 23, 1993. Also honoured with second highest national award of Grand Commander of the Order of the Niger (GCON) is Abiola’s running mate, Ambassador Babagana Kingibe, as well as the fiery human rights legal luminary, Chief Gani Fawehinmi, SAN, of blessed memory.

The award ceremony, was held on Tuesday, June 12, 2018. At the colourful event which had in attendance political office holders from the aborted Third Republic, pro-democracy activists such as Nobel Laureate, Wole Soyinka, Femi Falana, SAN, Ms. Ayo Obe, family members of late MKO Abiola, those of late Gani Fawehinmi, as well as serving political officers in this Fourth Republic, the President tendered apologies to the family of late Abiola, as well as victims of the June 12 struggle. A minute silence was also observed in honour of Abiola, Gani and other martyrs of June 12 struggle.

Recurring Questions

Since that news broke, I have had the privilege of discussing it on several news channels. These are Arise TV, Kiss 99.9 FM, Nigerian Television Authority, Radio Nigeria, Independent Television, Invicta 98.9 FM, Silverbird Television, The Sun newspaper and Broadcasting Corporation of Oyo State. I have not only discussed it in English language, but also in Pidgin and Yoruba languages. The questions I was repeatedly asked, were the implication of this decision on Nigeria’s democracy, whether it was politically motivated, and how that decision will rub off on future elections in Nigeria.

I was an undergraduate student of University of Lagos in 1993, and though I cannot remember voting in that election, I was deeply involved in the struggle to validate the election, as University students particularly in South West Nigeria, joined the Labour Unions and Non-Governmental Organisations, to demonstrate for the reversal of the annulment of the election.

I am not unaware of the controversies that have greeted the PMB recognition of June 12 as our deserved Democracy Day, as well as the posthumous recognition of Abiola and Gani, more so, as legal opinion has earlier been offered that only the living can be bestowed with those national honours, when similar advocacy was made for late Dr Ameyo Stella Adadevoh, who sacrificed her life for Nigeria in the fight against Ebola Virus some years ago. There was also the issue of legality of change in date for Democracy Day which has for 19 years been held on May 29.

Legal opinions differ on this matter, and I’ve read and listened to many of them. However, news report on June 13, 2018 said the Attorney-General and Minister of Justice, Abubakar Malami, SAN has clarified that the Public Holidays Act will soon be amended to accommodate the declaration of June 12 as public holiday. He was quoted as saying: “So, when the Act has been fully amended, the declaration of the President will come into effect. It is a declaration of intention, a declaration of desire, and that will eventually be given effect with the act of amendment of the existing law”. This ordinarily should lay to rest the lingering controversies about propriety or otherwise, of the President’s action of moving Nigeria’s Democracy Day from May 29 to June 12. However, I have a feeling that someone somewhere will go to court to seek interpretations of the National Honours Act and Honours Warrant, as well as Public Holidays Act, as it affects this step taken by PMB. As far as I’m concerned, that will be salutary to our jurisprudence and help deepen our democracy.

Politicians and Exploitation of Opportunities to get Votes

As some analysts have rightly observed, May 29 may remain hand over date, until a possible constitutional amendment is done to move it to June 12. As to whether the move by the President to validate and venerate June 12, 1993 Presidential election, is politically motivated, it will seem so. Given that the 2019 General Election is due in about nine months’ time, it is a masterstroke by President Buhari to do something heartwarming for South West Nigeria. There is no crime in this. Politicians are known, to explore and exploit opportunities, to give them edge at the polls.

It would be recalled that, former President, Goodluck Jonathan had in 2012, attempted to honour Aare MKO Abiola by renaming University of Lagos after the astute politician and business mogul. This was resisted, for two major reasons. First, the Yoruba race preferred a national monument outside of the South West geo-political zone, be named after Abiola. This was deserving, considering his immense contribution to sports, commerce and industry, as well as philanthropy all over the country. Secondly, neither the Council nor Senate of University of Lagos, was consulted before that decision was made.

June 12 Election: A Poll like no Other

Let me recap few things about June 12, 1993 presidential election. That was a poll like no other. It was an election, contested only by two political parties. That was an era when the military regime of Gen. Ibrahim Babangida, proclaimed two political parties into existence. They were National Republican Convention and the Social Democratic Party. These two parties were fully funded by the then military regime, because they didn’t want them to be hijacked by moneybags. In fact, Government built all their party offices in all the Local Government Areas, States and the Federal Capital Territory.

That election was also conducted, using a unique voting system named, Option A4. This is an open balloting system, where the electorate queue behind the candidates or their posters, at the Polling Units. Some people are calling for the reintroduction of this voting system, which as an election expert, I will not subscribe to. This is because, it makes the voters prone to molestation, harassment, and violence, as there is no secrecy of ballot. On that day, SDP, the party under which MKO Abiola contested the presidential election, took a big gamble by fielding a Muslim Presidential candidate and a Muslim Vice Presidential candidate. Surprisingly, it paid off for the party, as the voters shunned primordial ethno-religious sentiments, and voted across Nigeria for the SDP candidate. According to the Polling Unit collated results by the Polling Officials and SDP party agents, MKO won a pan-Nigeria mandate, even defeating the NRC candidate, Alhaji Bashir Tofa in his home state of Kano. The election was adjudged as the freest, fairest, and most peaceful election in Nigeria’s democratic history.

Two institutions played ignominious role, in the truncation of the June 12 election. They are the Judiciary and the Military. While some Judges gave dubious court injunctions stopping the conduct of the election, the military junta headed by Babangida annulled the election. This led to nationwide protests, which eventually forced the military to leave governance six years after – in 1999. Hundreds of lives including that of Abiola and his wife, Kudirat, were lost in the sustained protests against the military over the annulment.

Though the military eventually returned power to civilian on May 29, 1999, part of the positive fall out of the struggle for the validation of June 12, was the growth in the number of non-governmental organisations working in the area of Human Rights, Democracy and Good Governance.

Demands

I joined all well-meaning Nigerians, to task the Federal Government to officially release the results of the June 12, 1999 presidential election, officially recognise MKO Abiola as the winner, pay all his entitlements and name a national monument in his honour. I suggest the Aso Rock Presidential Villa. I also recommend that the Three Arm Zone in Abuja, should be renamed June 12 Zone. In addition, I want all the leaders of the struggle for the validation of the June 12 election, living or dead, including Prof. Humphrey Nwosu, who was the chairman of National Electoral Commission, to be given national honours. In truth, without the June 12 struggle, we may not have had this Fourth Republic. Also, it will be most appropriate, to have a curriculum developed on the June 12, 1993 elections and its values of tolerance, electoral integrity, and unity in diversity. This should be thought in our Primary and Secondary Schools, as part of Civics, History or Government.

The greatest burden that the June 12, 1993 election has placed on Nigeria’s future elections, is the need to have better polls than that. At present, Nigeria’s elections face challenges of lack of internal party democracy, electoral violence, vote trading, hate speech, and logistical nightmares. At the Media and Civil Society Organisation roundtable organised by the Transition Monitoring Group in Lagos on Monday, June 11, 2018, these were some of the things we tried to find lasting solutions to. The keynote Speaker was the legal luminary and Senior Advocate of Nigeria, Femi Falana.

As I noted in my published interview with The Sun newspaper on Sunday, June 10, 2018; beyond the recognition and national honour, the spirit of June 12 demands that, we do everything to ensure that going forward, our elections are of international standards – free, fair and credible. That should start from the forthcoming July 14 Governorship poll in Ekiti State, and September 22 Governorship election in Osun State, before we talk of 2019 general elections. That is when we will know that the All Progressives Congress, and indeed, President Buhari did not do this out of hypocrisy or mischief, but out of belief in the spirit of June 12.

Jide Ojo, Executive Director of OJA Development, Abuja