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Our faulty federalism comes with some blessings and innumerable curses. One curse is the latitude it has allowed for the sprouting of different shades and models of gubernatorial overlordship at the state level. Our state governors are some of the most licentious sovereigns on the face of the globe. They are a whole gamut ranging from bare -faced buffoons to fledgling autocrats, a few liberal democrats, some technocrats, apprentice fascists and sometimes plain circus figurines. Empowered by an effete constitution that places state houses of assembly squarely in the back pockets of governors, our governors are arguably even more powerful than the all powerful Nigerian president, himself a medieval chieftain whose powers are almost unchecked by a decorative parliament and a coterie of dishonest judges. But for the moment, what is of interest is the rising incidence of gubernatorial rascality in our states where governors are now busy rehearsing for higher national roles as our democracy assumes more illiberal dimensions.
Illiberal democracy has in recent years assumed centre stage as a consequence of the decline of global liberalism and the atrophy of democracy itself. Its hallmark is the rise of sovereigns who emerge from democratic elections but use their mandate to champion autocratic policies. They frighten the people with draconian laws by appealing to a populist mob, throwing up slogans of patriotism, nationalism, discipline etc. Their goal is entrenchment on the road to absolutism. They may start small and provincially and could graduate to national monsters and an international embarrassments.
The first step in the descent into illiberal democracy is the deployment of fear. A fledgling autocrat first adopts measures and laws aimed at frightening his hapless citizens to prepare the ground for a reign of irrational suppression. In the alternative, the rationality of law is subverted in a bid to lend legality to reckless autocratic excursions. Either way, the aims and ends are the same. It is to force society to accept irrational laws in the name of good governance and attention to the welfare of the people. But a mass of illiterate and impoverished citizens have little say in the matter. Once the gavel of despotic authority descends on the desk of insensitive governance, the law must take its course.
When president Rodrigo Duterte of the Phillipines assumed office, one of his first antics was to vividly recall his days as mayor of Manila when he used to drive round the city skums to personally execute drug lords in full public glare. Now as president, he only needed to authorize the police and paramilitary goons to re-enact the same gory escapades on live national television. He quickly followed up this with a torrent of hate rhetoric aimed at the all powerful United States of America. Dread at home and disdain abroad; the circuit is complete. Another strong man is born!
Nearer home, two of our state ‘governor generals’, specifically those of Kaduna and Imo respectively, have exercised the right and might of state governors to make laws ostensibly for the good governance of their citizens. One is going to round up his political opponents and probably lock them up forever. The other may go about town, scalpel and surgical knife in hand, in search of rapists to castrate.
The new Imo State law granting the governor the right to detain citizens indefinitely at will belongs in a sphere unto itself. By the bill passed recently by the State Assembly and assented to the State Governor, Mr. Hope Uzodinma, the governor is empowered to detain any citizen of the state indefinitely. The law is tagged the Imo State Administration of Criminal Bill No. 2 (2020). According to the new law, such detained persons can only be released if the same Governor grants a license to that effect.
Specifically, section 484 of the new law grants the governor powers reminiscent of similar colonial laws retained in Nigeria’s Administration of Criminal Justice Laws. In its sweeping arbitrariness, this law is reminiscent of the infamous Decree No. 2 promulgated by the military regime of Major General Muhammadu Buhari as military dictator of Nigeria between 1983 and 85. Of course Mr. Uzodinma is an undisguised admirer of Mr. Buhari with whom he shares a common party platform (the APC) in Nigeria’s current democratic dispensation.
Yet, section 35 of the Constitution of the Federal Republic of Nigeria and the relevant sections of the African Charter on Human and Peoples Rights provide against such arbitrary detentions and denials of citizens rights. It is true that no right, including the right to freedom, is absolute. Similarly, sovereigns can and have always invoked state security as an excuse to deny citizens their liberty. It is true that the constitution under section 35 does allow for the detention of persons under certain conditions. These include persons who are either mentally unsound, under narcotic influence or infected with highly contagious diseases.
In an early sign of the abuses to which the new law may be subject, the governor has already accused the political opposition in the state of sponsoring dissent in the state. The most elementary requirement for the necessity of a law is an overriding public interest and a desire for good governance. There is not yet, to my knowledge, any indication that Imo State has any security problems resulting from the freedom of its citizens.
Even if Imo state contained the highest concentration of dissidents than anywhere else in Nigeria, there is no democracy in which dissidence and divergence of views among citizens becomes a crime punishable by arbitrary detention in a gulag at the pleasure of some imperial governor. Clearly, the underlying impulse behind this unnecessary law is the political convenience and survival of Governor Uzodinma whose political legitimacy continues to hang on a flimsy thread.
There is abundant evidence in our past to justify fears that the most well intentioned laws can be put to ill use by our current generation of state governors. We have lived under military regimes that routinely denied citizens their freedom, citing the military equivalent of the Criminal Prohibition Bill. Under the Buhari/Idiagbon regime, state security officials paraded the streets literally carrying detention orders. They could arrest and detain innocent people indefinitely without charges. The courts were powerless. There was no constitution to cite.
Under the Obasanjo military regime, the government established an off shore detention facility at Ita OKo, a creek island around Lagos. It was an island facility in waters infested with crocodiles. Renditions of state detainees to the facility were conducted in maximum secrecy, violating every code of human rights, civilized arrest and detention. Once arrested and put away at Ita Oko, detainees were held indefinitely at the pleasure of the military state. It took the media to uncover the facility and compel its closure.
Only recently, the incumbent governor of Kano state invoked the extant colonial version of the same law to dethrone, arrest and exile the Emir of Kano, Sanusi Lamido Sanusi. He was abducted overnight and taken to a remote location in Nasarawa state from where he deployed a combination of law and public opinion to buy his freedom as a citizen. Anyone else in similar circumstances without Sanusi’s clout would have languished in indefinite exile.
The adoption of the new detention without trial law in Imo state is fraught with dangers inherent in the abusive nature of power in our polity. Clearly, Mr. Uzodinma intends to use this law to political ends. At best, it may be designed to frighten off his more aggressive opponents given the contentions origins of his mandate. At worst, in a desperate bid for a second term in office later, he is likely to invoke this law to arrest and detain his opponents indefinitely. It will be a sad day when Imo citizens are routinely nabbed and clamped into detention probably in purpose built ‘guest houses’ at the pleasure of this governor.
It requires restating that the new law in Imo State is a quaint throwback to the worst of the colonial days and the disgraceful legacy of our decades of military rule. That a democratically elected governor should in 2020 append his signature to such ignominy is a veritable indication of the gradual decay of our formal democracy.
In Kaduna state, my friend, Governor Nasir El-Rufai , has just passed easily the strictest law against rape in Nigerian history. The new law which is an amendment of the state’s Penal Code prescribes life imprisonment for anyone convicted of raping a person over the age of 14 while a woman convicted of raping a child under 14 will have her fallopian tube removed!
Similarly, a man convicted of rape will face the penalty of surgical castration. If the rape victim is under 14, the offender will face the death sentence! In the words of Governor El Rufai, ‘drastic penalties are required to help further protect children from a serious crime’. The new law replaces an old one which prescribed an imprisonment of 21 years for the rape of an adult and life imprisonment for the rape of a child under 14.
The right and responsibility of state chief executives to make laws for the good governance of their states cannot be questioned. The expediency to make such laws in response to matters of public interest would also be in line. What remains questionable is the ‘goodness’ and rationality of such laws. But the fairness and sensible applicability of such laws to general social welfare and basic common sense is also a basic expectation in a credible democracy.
The new rape law in Kaduna state raises many questions, doubts and fears. I do not know, for instance, if there are statistics that show that the incidence of rape in Kaduna state in particular has assumed an epidemic proportion. I also do not know where and how Kaduna ranks among states on the rising national rape index. It is also hard to determine the clear and present urgency of the rape threat to a state where inter communal and inter faith crises have led to a break down of security. However, in order to earn the kind of legislative attention which this law has attracted, the Kaduna state government ought to demonstrate the statistical preponderance of rape in the state in relation to other crimes and in relation to other threats to public good.
Understandably, since the Covid-19 lockdown, crimes of psychological deprivation and repression have reportedly increased throughout the country. Suddenly, rape stories are making headlines. But increased media attention may not necessarily be an indication of a corresponding increase in the incidence of these crimes. The media capitalizes on what sells the news and what titillates the mass audience.
Even then, the social negativity of rape as deviant behavior can never be contested. Psychologists may differ on the roots of rape but no one can dispute its anti social essence. But remedies to it as a social malady remain an area of active disputation. While behavior experts tend to see rape as a deep -seated psychological malady, others see it as a consequence of faulty socialization and bad upbringing. It may even be a dangerous indicator of a bad attitude towards women in certain settings. It however remains a crime that results from a compulsive psychological maladjustment.
Nonetheless, a crime that is sufficiently serious as to warrant corporal punishment should be sufficiently deep in its physical harm. The punishment prescribed by the deterring law should also be such that not only deters people from committing the crime but also provides demonstrable remedy to the victims beyond a general mob satisfaction with painful justice. When a male rape convict is castrated, what direct remedy does it bring to the female victim whose femininity was violated?
If the aim is to inflict such physical harm as to deter rapists from further rampage, it is also true that the penalty of castration, primitive and draconian as it is, will also deny the convicted rapist of the fundamental right of procreation and the exercise of their right to sex as a natural biological expression and democratic entitlement.
If the aim is to deter potential offenders by inflicting permanent physical harm, the fact of being castrated is not a public shame as the castrated does not subsequently carry a banner that says: ”Beware, Eunuch on Patrol”! The punishment remains a private affliction until the moment of biological challenge! Does the law provide the remedy of a reversal of castration for repentant rapists?
Even then, on the list of crimes with a multiplier social and economic impact, rape is not significant as to merit such draconian and primitive punishment that implies permanent impairment of an essential biological function of the human person. What applies to male convicts is also true of female rapists of Kaduna state who may now have their fallopian tubes removed and their reproductive capacity permanently compromised.
In certain socio-cultural regions and jurisdictions, it is understandable to amputate the arms of convicted thieves to show the public that every person with an amputated arm is likely to be a thief. Those who lost an arm or both to medical amputation as a result of auto accidents or industrial mishaps may go up in arms if they are mistaken for thieves and therefore suffer denials of legitimate rights of citizenship on account of their misfortune.
I am prepared to wager that there is a higher incidence of treasury looting and sundry pilfering from the public till in Kaduna state and nationwide than there are instances of rape. Therefore, if rape is punished by penile amputation or compulsory female sterilization, what should we do to serial treasury looters and thievish politicians? Rape hurts and offends one victim at a time. But treasury looting has a serial socio economic consequence. Opportunities are lost, investments are aborted, public projects are breached and social services are denied the many.
In my view, rape should carry a maximum penalty of imprisonment in addition to a term of community service in the form of manual labour including menial domestic chores at the behest of the family of the rape victim. Let us have any punishment that would remedy the misdemeanor and make the rapist come to the realization that the best benefits in life are the result of negotiated compromises. It is the duty of the state to use the social welfare department to correct certain deviant behaviors. It is pointless to use the force of law to dangle the sword of fear over citizens. The fear of being thought weak should not drive an enlightened governor to resort to wielding scalpels and surgical knives in search of rapists to castrate.
The recent actions of only two of our 36 state governors may not constitute sufficient threat to our democracy. But we live in a country where governors have frequently embarked on serial subversions of the law. Moreover, our polity has since become a quasi oligarchy in which the governors of today are the presidents of tomorrow. Already, our governors end up mostly as senators. If they carry their illiberal habits of draconian unsolicited laws to national law making, we may wake up to find that we are living in a country other than the one our founder promised us.