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An Unhappy Union: Renegotiating Nigeria’s Legal Frameworks In The Light Of Rising Insecurity And Secessionist Agitations.

By Chris Oti, Esq

ABSTRACT

It is not in doubt that every nation has its own issues and challenges, but what is important and is a show of good leadership and respect to peoples’ voice and right is in how they are resolved. Nigeria, historically, is a marriage of different tribes that had distinct culture, beliefs, language and leadership, but were mainly compelled for the larger good of Britain to be amalgamated in 1914. It is this compulsion leading to the formation of Nigeria that is the bane of the current insecurity and secessionist agitations in the country, which is rather heightened at this time, hence the unhappy union.

At the root for the call for secession, is the right to self determination of a nation or a people. The right to self-determination is that collective right of a people to govern themselves in line with their own sovereign rules. This right to self-determination is rightly contained in many international instruments like, the United Nations Charter and the African Charter on Human and Peoples’ Rights, and has been affirmed by the International Court of Justice.

The 1999 Nigeria Constitution (as amended) provides that the country is one indissoluble and indivisible sovereign nation[1]. However, this indivisible and indissoluble phenomenon has been trounced with threats of collapse since the civil war in 1966 when the declaration of Biafra was made[2]. It is for so many reasons canvassed by secessionists; that they have been marginalized and not given control to some of their resources. Prominent among these groups are the Indigenous People of Biafra (IPOB), MASSOB, Niger Delta Avengers, The Oduduwa Republic group, Arewa group, and most recently the Sunday Igboho group calling for a declaration of a Yoruba nation.

It is in the light of the foregoing that this author will contend that the legal framework of Nigeria should be renegotiated considering the right of a people to govern themselves, and for a true nation to emerge. It is further contended that those who lawfully clamour for their right to self-determination should at best be brought to the metaphorical round table for dialogue, instead of an unrestrained show of force in the guise of protecting the sovereignty of the country.

Key Words: Union, Renegotiating, Legal Framework, Insecurity, Secessionist, Agitation

INTRODUCTION

Historically, Nigeria became an independent country in 1960, but it was evident that there were varying ethnic interests and loyalty that eventually led to the first coup in 1966 and was further followed by the civil war between 1967 to 1970. It is imperative to state that the end of the civil war was not as a result of peaceful and amicable settlement, but because the Biafra secessionist surrendered to the Nigeria army. Consequently, the disunity and grievances that was not reconciled and sorted out persists today in the form of secession agitations.

The legal framework of Nigeria is first birthed in the constitution, and has been proclaimed in the preamble to be the will of the people, but the average Nigerian can attest otherwise. The constitution recognizes the unity of all concerned entities and is emphatically silent on secession but identifies the means to the creation of states within the country[3]. As it stands, International law does not have any apparatus or tool with which to sit over the liquidation of an independent state. Secession is not a right under international law but it is equally not prohibited, thus, it maintains legal neutrality, making secession not so much of matter of law but fact based on the capability (politics) of its purveyors[4].

It must be emphasized that the rising vices in the country including varying acts of violence and insecurity reflects some people’s reaction to perceived injustice, leadership failure, segregation and marginalization. It can be concluded that the failure of the present legal framework of Nigeria, having not made provision for secession of any kind, would continue to raise the various secession agitations in the country, as such the need for a renegotiation of the legal framework is pertinent.

RENEGOTIATING NIGERIA’S LEGAL FRAMEWORK

We have already established here that, the constitution is the legal framework of Nigeria as it is the source where other laws find their root, and with the various grievances of different groups left unaddressed, the spate of insecurity and secessionist agitations would increase. However, it is contended here further that secession need not be external as it can take an internal shape. It therefore depends on the agreements that may be reached if those at the helm of the affairs of the country can indeed renegotiate with the various groups involved.

But how can this renegotiation be? It is posited here that the way a sector of the country is being treated as more important than other parts should not be the mindset that should be employed in the negotiation table. The fact that there is a need for renegotiation, suggests that there is a supposed contract, which may help guide how a negotiation will take shape.

It is canvassed however that, the issue of renegotiating the fulcrum of the constitution brings to mind the arguments from several sectors whether what is intended is an amendment or a contracting/making of a new constitution. It is the opinion of this writer that any renegotiation of the constitution as the legal framework of Nigeria should be a making of a new constitution as no amendment can seriously assuage the ill-feelings and grievances of the people. The truth remains that it can be likened to a torn cloth which has been stitched repeatedly, but each time, it is only good for the time being but it cannot go back to being a new one. It therefore reduces in value, calling for a new one.

The Nigeria constitution cannot indeed be deemed as the people’s own despite the wordings of the preamble, or the little consultation which the then military government took in handing the 1999 constitution to the country. Nigerians need to be involved in the contractual terms that would guide them to better cover the necessary fields left bare by the present constitution.

In law, parties are at liberty to mutually agree, orally or in writing, to dissolve, annul, add to, subtract from, vary, or qualify former agreements and therefore enter into a new one[5]. In Wayne v. Ekwunife[6], the Supreme Court held as follows:

“Now it has not been disputed that parties to a contract may effect a variation of the contract by modifying or altering its terms mutual agreement…. In such cases, mutual abandonment of the existing rights of the parties under the agreement as distinct from forbearance to suit, is  sufficient consideration.”

It is therefore necessary to state that there are issues beneath the insecurities and secessionist agitations, which can be described as triggering events that must be addressed in the light of the current legal framework of the country to foster a happy union. Therefore, it is imperative that we take a look at some aspects of the current constitution that urgently needs to be renegotiated which would lead to the placating of the agitations of the various groups.

POSSIBLE CONSTITUTIONAL RENEGOTIATING POINTS

At the outset, it should be stated that the idea and character of the federal government of Nigeria as presently constituted to treat some persons from other parts of the country who are clearly perpetuating varying acts of insecurities and label them as bandits, whilst ascribing and proclaiming secessionist from the south-eastern parts of the country as terrorists is a most unfortunate triggering situation. It is recommended that dialogue remains the key in reaching a serious renegotiation. Although, agitations around Biafra have drowned out other separatist agitations, giving the wrong impression that Biafra is the only separatist threat in the country[7]. The truth is that there are separatist agitations in virtually every area in the country-underlying the fact that the foundation for Nigeria’s nationhood remains on shaky ground[8]. The following are in this writer’s opinion, the different negotiating points that need be processed legally and can be seen as the way forward to curb or sizeably reduce the spate of insecurity and secessionist agitations in the country.

  1. Power Sharing

The first issue for renegotiation is in the method of selecting who leads the country, and understandably so, it is one major cause for the insecurities and secessionist agitations in the country. The banter on who becomes the president of the country is a huge national discourse as such a time as this, particularly when the different tribes gets the sense of marginalization when a leader from their extraction is not the president. It will be helpful to institutionalize or codify the existing conventional system of power sharing and rotating the presidency between the different groups or within the south and north of the country[9]. Federal Character Commission (FCC), an agency created in 1996 to ensure fairness in the distribution of jobs and socio-economic amenities among different parts of the country, would help build trust among groups. Making it a mandatory requirement that certain federal appointments and distribution of infrastructure must have the imprimatur of the agency will reduce the suspicion that the ethnic group in power will privilege its in-group and disadvantage others.[10]

  1. Referendum Clause

According to Merriam Webster Dictionary, a referendum is an event in which the people of a country, state, e.t.c., vote for or against a law that deals with s specific issue: a public vote on issue. Referendum provides an opportunity for the different tribes in the country to discuss on their issues or views nationally. It shows the strength of support the leaders of the group have been able to garner to back their position from the people. Following from this idea, perhaps Nigeria should consider a constitutional provision allowing for a referendum among nationalities that want to secede from the union, say, once every 30 years. This will allow earnest conversations between the supporters and opponents of each separatist movement[11]. It may be argued that this may permit many groups to secede from the country, but the benefit remains that those who decide to stay will do so because they actually want to stay together and not as a result of brute force.

  1. Enforceability of Chapter Two of the 1999 Constitution

At first, it must be stated that it is a dismal position for the state obligation of government not to be enforceable as the present legal framework denote. Whereas, the tenor of section 13 of the constitution appears to be mandatory, it signifies no force in law. It provides that it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this chapter of this constitution. The chapter went on to encapsulate different security, economic, political, educational, social, cultural, environmental, and foreign policy objectives, but remains unenforceable.

It is contended here that this chapter of the constitution ought to be made enforceable, because, underlying the challenges of insecurity and secessionist agitations is the failure of the different governments to fulfill these fundamental objectives to the people. As such, this should form a vital basis for renegotiation of the legal framework to ensure the enforceability of these objectives.

  1. Total Fiscal Federalism

The position of federalism as it is presently practised in Nigeria does not in true sense give room for total fiscal federalism. The current situation where the states are being doled out funds by the Federal government essentially from revenue derived from many of these states is a major factor for the consistent fracas among the various groups. It is a known fact that many of these States contribute little to nothing to the federation revenue, but do take home a huge chunk from the revenue sharing. This does not breed trust among the groups, as there will be deep politics in the sharing formula, nonetheless the thirteen percent derivation formula. Take for instance, the many acts of violence from the Niger Delta region as it pertains to their call for better stake in the generated revenue from their region. There is no State that, do not have the capacity to produce and sustain itself if the region truly look inwards for the generation of internal revenue.

It is argued that the control of the minerals, mineral oils and natural gas in, under or upon any land in Nigeria, by the federal government is incompatible with the principle of true federalism, and the law that he who owns the land owns all that is found therein, and particularly as the Land Use Act which draws its present existence from the constitution had vests all lands in a state on the State government[12]. This issue needs to be renegotiated if the insecurities and secessionist agitations must abate; the constitution cannot give a right to the State government with one hand and withdraw same with the other.

It is this author’s suggestion that the States or regions should be allowed to invest and derive their own revenue and only give a set out percentage, say ten percent, to the Federal purse. That way, the people of the State and their leaders would have the deep drive to hugely invest in their region because they are aware that the fate of their region is entirely dependent on them and not on the handouts they are likely to receive from the federal government, even if they do not produce much. In the same vein, there must be a reduction of the powers of the central government and devolve same to the regions or State governments.

CONCLUSION

Arguably, at the centre of the many calls for secession by different groups is the fact that they are unhappy in this present constitution of Nigeria. As such, the leadership of the state must show a true sense of national building, by entrenching the rule of law, separation of powers and justice in the affairs of the nation. A lot of the citizens or regions feel left out in the play of things in the country; the cure would be for a holistic approach to the tinkering of the constitution or a making of a new one.

This work has only made an attempt to x-ray the root cause for the insecurities and secessionist agitations as being the need for the right to self-determination, and has provided pointers to how a renegotiation of the nation’s legal framework may likely take shape. There are of course other factors that may be necessary in the discourse such as the case for independent candidacy, exclusion of the traditional rulers/heads from the government control, independence of the judiciary, etc, but it is believed that the points made above can serve a great deal to assuage the ill-feelings of those engaged in violence as a way to make their voices known or heard by the government; and the secessionists would be in a good place to truly decide whether they want to remain in the country or otherwise.

[1] Section 2 [1999] Constitution of the Federal Republic of Nigeria

[2] O.W. Igwe; et al, The Right to Self Determination Under Contemporary International Law: The Case of Minority Groups In Nigeria, (2020) Seahi Publications, accessed at www.seahipaj.org., on 21/08/21.

[3]  Olawale Ogunmodimu, The Ambiguity of Constitutional Silence on State Secession In Nigeria: Looking Beyond Politics of Compassion and Prejudice (2018) accessed at www.papers.ssrn.com. On 21/8/21

[4] Olawale Lawal, The Position of International Law on Secession and Secession and Self-Determination, (2021) accessed at www.vanguardngr.com., on 21/8/21

[5] E.J. Olorunmaiye, Renegotiation of Commercial Contracts, (2020) Sefton Fross, accessed at www.mondaq.com., on 22/8/21

[6] (1989) 3 N.S.C.C. 325

[7] Jideofor Adibe, Separatist agitations in Nigeria: Causes and trajectories (2017) accessed at www.brookings.edu., on 22/8/21

[8] Ibid

[9] Jideofor Adibe, Separatist agitations in Nigeria: The way forward (2017) accessed at www.brookings.edu., on 22/8/21

[10] Ibid

[11] ibid

[12] Section 44(3); 315(5) (1999) Constitution of the Federal Republic of Nigeria

Nigeria In 2023: The Legality Of Zoning

By Ebun-Olu Adegboruwa, SAN

Politicians are busy heating up the polity presently, in order to drive the stakes higher, purely for their own benefits. The starting point is to say that it is most regrettable indeed, that the discussion around the leadership of this great nation has now been reduced to regional, ethnic and religious considerations, instead of being driven by merit, issues and ideologies. But that is what the game has turned to. This piece is to be situated within the context of that emerging trend, which I do not subscribe to in any manner whatsoever. Thus, this intervention is only a legal prognosis, occasioned by the seeming lack of appreciation of the vital constitutional imperatives by the players and the actors, in the political scene. The burning questions then are these: who should lead Nigeria in 2023 as President? What are our expectations? Which zone in Nigeria should produce the President? And what are the factors to guide this considerations? Let us examine the following provisions of the Constitution.

Section 131. “A person shall be qualified for election to the office of President if:
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of forty years;
(c ) he is a member of a political party and is sponsored by that political party; and
(d) he has been educated up to at least School Certificate level or its equivalent.”

The above are the statutory qualifications for anyone aspiring to be the President of Nigeria. Irrespective of the political party, State of origin, the zone or even religion of the aspirant, the Independent National Electoral Commission will only search for the conditions stated above. A number of persons have held on to section 131 as the determining factor of who can be a Presidential Candidate. It is important to note however that in construing the provisions of the Constitution, a holistic interpretation is enjoined by the Courts, given that the Constitution itself is a single document. Thus, all its provisions should be read together in order to discover the intent and purpose of the drafters. This means that section 131 must ipso facto be interpreted along with other provisions of the Constitution. This then takes us to section 14 (3).

“14. (3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies.”

The words and phrases used in this section are clear, precise and deliberate. Upon a proper dissection, it would be seen that the drafters were laboring to achieve a desired goal, which is the unity of the country through geographical spread in the distribution of public offices. The head of the ‘Government of the Federation’ is without doubt the President. Election into that office is part of the conduct of the affairs of the Government of the Federation, including the criteria for the choice of the person to occupy that office. Section 14 (3) stipulates that the composition of the government of the Federation of Nigeria should be done to promote federal character of Nigeria. The purpose of this mandate is to promote national unity and to command national loyalty. Indeed, if only one State in Nigeria or a particular section of the country is to produce the President all the time, then that will lead to political isolation and marginalization. Let us break it down. If the President of Nigeria is to be chosen from Igboland all the time, the Yoruba and Hausa will feel a sense of neglect and may not see the need for granting loyalty to such leader. How do you command national loyalty from the Igbos if the North is to produce the President of Nigeria forever? How do you promote national unity when other sections of the country are deliberately excluded from clinching the highest position available?

The argument of the proponents of a Northern President come 2023 is hinged on section 133 of the Constitution which says that a candidate will be declared President if he has a majority of YES votes over NO votes cast at the election and he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja. The thinking is that if the North should swing its block votes in favour of any particular candidate, then that section could always insist on producing the President. This cannot stand as one section of the Constitution cannot stand to violate another section, in this case section 14 (3), which clearly prohibits the ‘predominance of persons from a few States or from a few ethnic or other sectional groups’ in public office or in any agency of the government. President Muhammadu Buhari was elected President in 2015 and he is from Katsina State in the Northern part of Nigeria. He was re-elected for a second term in 2019, and he is expected to complete his eight-year tenure in 2023. In line with section 14 (3) of the Constitution, the Southern part of Nigeria is expected to produce the next President come 2023, whether or not they have majority of the votes. What is required is to combine section 131 on the eligibility of the candidate for the office of the President with section 14 (3) to determine his qualification. In other words, after fulfilling all the requirements stipulated in section 131, the candidate must of necessity not be in violation of section 14 (3). So, even if a candidate is ordinarily qualified by virtue of section 131 of the Constitution, he can be disqualified under section 14 (3) if he is from the same section of the country as the incumbent President.

The idea of rotation and zoning was mooted during the second republic by the National Party of Nigeria, which was then struggling to build a party with national appeal. It was later included in its Constitution vide Article 21 thereof that NPN will strive to achieve ‘national character’ in all its dealings. I believe that this is the origin of the phrase ‘federal character’, which later surfaced in the 1999 Constitution. This would also explain section 223 (1) (b) and (2) (b) of the 1999 Constitution, which make it mandatory for all political parties to reflect the principle of federal character in their Constitutions.

“223. (1) The Constitution and rules of a political party shall –

(b) ensure that members of of the executive committee or other governing body of the political party reflect the federal character of Nigeria.
(2) For the purpose of this section –
(b) the members of the executive committee or other governing body of the political party shall be deemed to reflect the federal character of Nigeria only if the members thereof belong to different States not being less in number that two-thirds of all States of the Federation and the Federal Capital Territory, Abuja.”

It is not a matter in which the political parties have a choice at all, as they must reflect federal character in all their operations, including the sharing of political offices, in order to ensure strict compliance with the 1999 Constitution. Indeed, section 1 (2) thereof states that “the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.” Thus, when the founders of the Peoples Democratic Party (PDP) were planting the Party, they adopted the equitable principle of rotation and zoning and this was expressly inserted in its Constitution.

Article 7 of the Constitution of the Peoples Democratic Party:

“7. (1) The Party shall have a manifesto which, subject to the provisions of the Constitution of the Federal Republic of Nigeria, shall be implemented by all organs of the party and governments elected under its platform.

(2) The Party shall strive to –
(b) promote federalism and an equitable revenue sharing formula.
(3) The Party shall pursue these aims and objectives –
(c) adhering to the policy of the rotation and zoning of Party and Public elective offices in pursuance of the principle of equity, justice and fairness.”

Articles 3 and 7of the Constitution of the All Progressives Congress:

“Motto: Justice, Peace and Unity”
“7. (1) To promote and foster the unity, political stability and national consciousness of the people of Nigeria.”
(2) To promote true federalism in the Federal Republic of Nigeria.”

Article 2 of the APC Constitution:

“Subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and any other Laws for the time being in force in the Federal Republic of Nigeria, the provisions of this Constitution shall be supreme PROVIDED that where any Rule, Regulation or any other enactment of the Party is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, such a Rule, Regulation and Enactment shall, to the extent of its inconsistency, be null and void and of no effect whatsoever.”

In August 2006, Northern Governors gathered in Kaduna, led by the then governor of Nasarawa State, His Excellency Abdullahi Adamu, to insist on the implementation of the principle of rotation and zoning. They claimed that there was an existing precedence on the matter and even alluded to a ‘gentleman’s agreement’ between politicians across the country, on the issue. They won that argument at that time. Section 17 (1) of the 1999 Constitution states that the State social order is founded on ideals of freedom, equality and justice. Equality means the balance of power is not tilted in favour of a section of the country against the other sections. I verily believe that this prompted Governors of the Southern States to make a similar demand for power shift or zoning in 2021, as the case may be. It is nothing new, but rather expected and logical, that after the tenure of President Muhammadu Buhari in 2023, the Southern part of Nigeria should produce the President after him. That will accord with fairness and justice indeed. As I have stated on several occasions, it will be totally insensitive for the North to expect to produce the President of Nigeria, after the Buhari administration. And I think the same factor should be extended to the faith of the leader. In the context of the present-day Nigeria, it will be manifestly unfair and unjust for Christians to be denied the opportunity of leading the nation. Thus, it is expected that the next President after the present one should come from the Southern part of the country and he should be a practicing Christian. This is meant to achieve stability in the polity and avoid undue tension and agitations. The Nigerian Bar Association is currently practicing the principle of rotation and zoning, between the North, West and the South and it has worked smoothly and effectively, for the body of lawyers. There is no reason why it shouldn’t work for Nigeria., SAN

Politicians are busy heating up the polity presently, in order to drive the stakes higher, purely for their own benefits. The starting point is to say that it is most regrettable indeed, that the discussion around the leadership of this great nation has now been reduced to regional, ethnic and religious considerations, instead of being driven by merit, issues and ideologies. But that is what the game has turned to. This piece is to be situated within the context of that emerging trend, which I do not subscribe to in any manner whatsoever. Thus, this intervention is only a legal prognosis, occasioned by the seeming lack of appreciation of the vital constitutional imperatives by the players and the actors, in the political scene. The burning questions then are these: who should lead Nigeria in 2023 as President? What are our expectations? Which zone in Nigeria should produce the President? And what are the factors to guide this considerations? Let us examine the following provisions of the Constitution.

Section 131. “A person shall be qualified for election to the office of President if:
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of forty years;
(c ) he is a member of a political party and is sponsored by that political party; and
(d) he has been educated up to at least School Certificate level or its equivalent.”

The above are the statutory qualifications for anyone aspiring to be the President of Nigeria. Irrespective of the political party, State of origin, the zone or even religion of the aspirant, the Independent National Electoral Commission will only search for the conditions stated above. A number of persons have held on to section 131 as the determining factor of who can be a Presidential Candidate. It is important to note however that in construing the provisions of the Constitution, a holistic interpretation is enjoined by the Courts, given that the Constitution itself is a single document. Thus, all its provisions should be read together in order to discover the intent and purpose of the drafters. This means that section 131 must ipso facto be interpreted along with other provisions of the Constitution. This then takes us to section 14 (3).

“14. (3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies.”

The words and phrases used in this section are clear, precise and deliberate. Upon a proper dissection, it would be seen that the drafters were laboring to achieve a desired goal, which is the unity of the country through geographical spread in the distribution of public offices. The head of the ‘Government of the Federation’ is without doubt the President. Election into that office is part of the conduct of the affairs of the Government of the Federation, including the criteria for the choice of the person to occupy that office. Section 14 (3) stipulates that the composition of the government of the Federation of Nigeria should be done to promote federal character of Nigeria. The purpose of this mandate is to promote national unity and to command national loyalty. Indeed, if only one State in Nigeria or a particular section of the country is to produce the President all the time, then that will lead to political isolation and marginalization. Let us break it down. If the President of Nigeria is to be chosen from Igboland all the time, the Yoruba and Hausa will feel a sense of neglect and may not see the need for granting loyalty to such leader. How do you command national loyalty from the Igbos if the North is to produce the President of Nigeria forever? How do you promote national unity when other sections of the country are deliberately excluded from clinching the highest position available?

The argument of the proponents of a Northern President come 2023 is hinged on section 133 of the Constitution which says that a candidate will be declared President if he has a majority of YES votes over NO votes cast at the election and he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja. The thinking is that if the North should swing its block votes in favour of any particular candidate, then that section could always insist on producing the President. This cannot stand as one section of the Constitution cannot stand to violate another section, in this case section 14 (3), which clearly prohibits the ‘predominance of persons from a few States or from a few ethnic or other sectional groups’ in public office or in any agency of the government. President Muhammadu Buhari was elected President in 2015 and he is from Katsina State in the Northern part of Nigeria. He was re-elected for a second term in 2019, and he is expected to complete his eight-year tenure in 2023. In line with section 14 (3) of the Constitution, the Southern part of Nigeria is expected to produce the next President come 2023, whether or not they have majority of the votes. What is required is to combine section 131 on the eligibility of the candidate for the office of the President with section 14 (3) to determine his qualification. In other words, after fulfilling all the requirements stipulated in section 131, the candidate must of necessity not be in violation of section 14 (3). So, even if a candidate is ordinarily qualified by virtue of section 131 of the Constitution, he can be disqualified under section 14 (3) if he is from the same section of the country as the incumbent President.

The idea of rotation and zoning was mooted during the second republic by the National Party of Nigeria, which was then struggling to build a party with national appeal. It was later included in its Constitution vide Article 21 thereof that NPN will strive to achieve ‘national character’ in all its dealings. I believe that this is the origin of the phrase ‘federal character’, which later surfaced in the 1999 Constitution. This would also explain section 223 (1) (b) and (2) (b) of the 1999 Constitution, which make it mandatory for all political parties to reflect the principle of federal character in their Constitutions.

“223. (1) The Constitution and rules of a political party shall –

(b) ensure that members of of the executive committee or other governing body of the political party reflect the federal character of Nigeria.
(2) For the purpose of this section –
(b) the members of the executive committee or other governing body of the political party shall be deemed to reflect the federal character of Nigeria only if the members thereof belong to different States not being less in number that two-thirds of all States of the Federation and the Federal Capital Territory, Abuja.”

It is not a matter in which the political parties have a choice at all, as they must reflect federal character in all their operations, including the sharing of political offices, in order to ensure strict compliance with the 1999 Constitution. Indeed, section 1 (2) thereof states that “the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.” Thus, when the founders of the Peoples Democratic Party (PDP) were planting the Party, they adopted the equitable principle of rotation and zoning and this was expressly inserted in its Constitution.

Article 7 of the Constitution of the Peoples Democratic Party:

“7. (1) The Party shall have a manifesto which, subject to the provisions of the Constitution of the Federal Republic of Nigeria, shall be implemented by all organs of the party and governments elected under its platform.

(2) The Party shall strive to –
(b) promote federalism and an equitable revenue sharing formula.
(3) The Party shall pursue these aims and objectives –
(c) adhering to the policy of the rotation and zoning of Party and Public elective offices in pursuance of the principle of equity, justice and fairness.”

Articles 3 and 7of the Constitution of the All Progressives Congress:

“Motto: Justice, Peace and Unity”
“7. (1) To promote and foster the unity, political stability and national consciousness of the people of Nigeria.”
(2) To promote true federalism in the Federal Republic of Nigeria.”

Article 2 of the APC Constitution:

“Subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and any other Laws for the time being in force in the Federal Republic of Nigeria, the provisions of this Constitution shall be supreme PROVIDED that where any Rule, Regulation or any other enactment of the Party is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, such a Rule, Regulation and Enactment shall, to the extent of its inconsistency, be null and void and of no effect whatsoever.”

In August 2006, Northern Governors gathered in Kaduna, led by the then governor of Nasarawa State, His Excellency Abdullahi Adamu, to insist on the implementation of the principle of rotation and zoning. They claimed that there was an existing precedence on the matter and even alluded to a ‘gentleman’s agreement’ between politicians across the country, on the issue. They won that argument at that time. Section 17 (1) of the 1999 Constitution states that the State social order is founded on ideals of freedom, equality and justice. Equality means the balance of power is not tilted in favour of a section of the country against the other sections. I verily believe that this prompted Governors of the Southern States to make a similar demand for power shift or zoning in 2021, as the case may be. It is nothing new, but rather expected and logical, that after the tenure of President Muhammadu Buhari in 2023, the Southern part of Nigeria should produce the President after him. That will accord with fairness and justice indeed. As I have stated on several occasions, it will be totally insensitive for the North to expect to produce the President of Nigeria, after the Buhari administration. And I think the same factor should be extended to the faith of the leader. In the context of the present-day Nigeria, it will be manifestly unfair and unjust for Christians to be denied the opportunity of leading the nation. Thus, it is expected that the next President after the present one should come from the Southern part of the country and he should be a practicing Christian. This is meant to achieve stability in the polity and avoid undue tension and agitations. The Nigerian Bar Association is currently practicing the principle of rotation and zoning, between the North, West and the South and it has worked smoothly and effectively, for the body of lawyers. There is no reason why it shouldn’t work for Nigeria.

Beyond Zoning, The President Nigeria Needs

Happy belated 61st Independence Day Nigerians – well, whatever that means; or should it be Sad Independence Day instead, since majority of Nigerians are mostly unhappy, and feel that there isn’t much to celebrate, unless we want to engage in self-delusion. My question to every successive Nigerian Government, be it our Founding Fathers, the Military, NPN (National Party of Nigeria), PDP or APC is – “Nibo Ie gbe Nigeria de?” that is, where have you carried Nigeria to – where have you taken Nigeria to? Where have you reached with Nigeria? The answer clearly is, you have taken Nigeria to a BAD Place; you have made the country regress to an unimaginable level, one which we could never have envisaged.

Founding Fathers

Our Founding Fathers did a better job. In a nutshell, the Regions had started to develop at their own pace. The South had embraced Western education wholeheartedly, especially with the introduction of Free Education by the then Premier of the Western Region, Chief Obafemi Awolowo, SAN (of blessed memory). The Western Region engaged in trade in agricultural products like cocoa; and being surrounded by water gave the South an advantage for export trade. The Eastern Region, apart from being traders, mined coal. Calabar which had the first sea port in Nigeria, was also part of the Eastern Region at the time. The North too was doing fine. They grew millet, sorghum, cowpea, ground nut and sesame for trade and export, and they had the Fulani nomadic pastoralists. Things were looking up. In the 1960s, Nigeria even lent/gave South Korea (SK), then a rural agrarian economy, funds. Today, SK has metamorphosed into a first world country (and SK is not endowed with any mineral resources), while to date, Nigeria has remained a third world country, borrowing and sorrowing.

What Went Wrong?

So, what went wrong? I think the combination of the discovery of oil by Shell BP in Nigeria on January 15, 1956 at Oloibiri in the Niger Delta area, precisely in present-day Ogbia Local Government Area, Bayelsa State; and the intervention of the Military in governance, was in my humble opinion, responsible for the truncation of Nigeria’s growth, development and bright future. Unknown to us, it was the beginning of our descent from grace to grass. The discovery of oil, was both a blessing and a curse. Instead of using our oil revenue to build upon the infrastructure and institutions that our British Colonial Masters had started, those that were already in place were left to rot like the roads and the railways; the money was basically frittered away by the Military with not much to show for it, except maybe for the development of Abuja, the Federal Capital Territory, the Lagos-Ibadan Expressway, the new Murtala Muhammed International Airport, Lagos and a few other structures; not much infrastructure was put in place.
Nigeria became lazy, depending mostly on oil revenues as her main source of income, corruption which had started on a small scale during the First Republic steadily increased with the Military and blew out of proportion by the time we reached the Fourth Republic. The little armed robbery we had experienced with Dr Ishola Oyenusi (Dr of Armed Robbery) in the 1970s, and Lawrence Anini in the 1980s, gradually began to be on the rise. By the time we got to the era of General Ibrahim Babangida, we had started to experience occasional power cuts.

The Unitary system and sharing of oil revenue among the States, which the Military introduced, worked well enough when the going was good and there was plenty to share, but eventually turned sour partly when those revenues started to dwindle; and now we are faced with cries for Restructuring, and more divisive cries for Secession. Insecurity and kidnapping have become the order of the day in all parts of the country, and Nigeria, once the Giant of Africa, has become the poverty capital of the world! We now have one of the highest out-of-school children rates in the world, a low standard of education, inadequate health facilities, a high rate of inflation and unemployment; we manufacture little or nothing, food shortages are imminent; agriculture and mining which would have been viable sources of revenue are threatened, since Farmers are no longer able to go to their farms regularly, for fear of violent attacks, either perpetrated by Herders or Bandits, and also kidnapping, which unfortunately has become the new rave in town (Miners too, are under similar threats).

So, what are we really celebrating at 61? Failure? None of the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution) have been fulfilled. The Federal Government, just as the Military plucked the lowest hanging fruit – depending mostly on oil revenues to run the country, is using the second lowest hanging fruit – borrowing – and at an alarming rate too – to provide the infrastructure that its predecessors failed and neglected to provide when they had the opportunity to do so. The debt forgiveness that Nigeria secured through the efforts of President Obasanjo is now ancient history, as the country is now swimming in a deep ocean of debt. How will Nigeria repay its loans? How does a country thrive, when it lacks a good measure of security to be able to harness its resources?
Looking at the APC’S three major campaign promises, that is, eradicating insurgency and insecurity, fighting corruption and revamping the economy, it is obvious that if the fight against insecurity and corruption are fought effectively, the issue of the economy will be easier to solve.

Reinforcing Failure and Lack of Accountability

My point? While we, the Nigerian people are bothering our pretty little heads on how these challenges should be tackled, Politicians and rulers, who by virtue of their roles in Government are mostly responsible for mess we find ourselves in; who should be more concerned about the dreadful situation Nigeria is in, and be pre-occupied with proffering viable solutions to save our country, couldn’t care less. They are more concerned with talk of 2023, and which Zone should produce the next President! After plunging Nigerians into deep misery and suffering, the APC and PDP (Twiddledim and Twiddledumb) are more engrossed in how to perpetuate themselves in office – shamelessly cross-carpeting amongst themselves, in a bid to stay relevant. I was mortified when I heard that PDP was complaining that APC is poaching it’s members, by blackmailing them with the EFCC! If they didn’t have skeletons in their cupboards, surely the EFCC would have nothing to blackmail them with! Are these the kind of people we want in office again? Unfortunately, yet again, these two political parties seem to be the main contenders for the Presidency in 2023, unless some miracle happens to bring in a usable third party. Lest I forget, corruption under both political parties, is unprecedented.
So, when I hear some of the names being peddled as 2023 Presidential hopefuls, I wonder. They are old and recycled, and I find it hard to fathom why their names should even be mentioned. I challenge others, including the Youths, to organise themselves, and put forward worthy, capable and unblemished candidates. Definitely, Nigeria has more to offer than these same old people. Why is it that we like to reinforce failure? Should eligibility for office, at least for those who have held one public office or the other in the past, not be based on their previous performance? Even if the candidate is from the private sector, what are his or her achievements there? Why is it that the concept of accountability, is seriously lacking in the Nigerian set up?

Last week, I saw several news clips concerning other countries, in which public officials/government agencies were held accountable for their undesirable actions – a concept which we have failed to grasp in Nigeria. In Britain, Wayne Couzens, a Police Officer, was given the maximum sentence (usually handed down sparingly), life imprisonment without the possibility of parole, for murdering Sarah Everard. In Nigeria, ‘Super Cop’ DCP Abba Kyari, was cleared by the Panel set up by the Nigeria Police to investigate money laundering charges levelled against him by the American Government, in connection with convicted felon, Hushpuppi’s case, when the reports against him show quite clearly, that he has a case to answer. Former French President, Nicholas Sarkozy, was sentenced to one year house arrest for illegally financing his re-election bid. Again, the American Military have publicly admitted to making a tragic mistake in a drone strike which killed about 10 members of a family, including children, in Afghanistan (even though this admission of guilt isn’t nearly enough – there must be reparations to the family). In Nigeria, the authorities are still trying to cover up the fact that live bullets were used, and a considerable number of Youths were killed during the October 2020 #EndSARS Protest, despite overwhelming evidence to the contrary. When will Government understand that, without accountability there can be no progress?

Disqualification

Technically, Section 137 of the Constitution which sets out the Disqualifications of a Presidential candidate, may not have been proven in a court of law to be applicable to some of the 2023 Presidential hopefuls, though there have been accusations levelled against some of them, from presentation of forged certificates to INEC contrary to Section 137(1)(j), to corruption, which would have consequences by virtue Section 137(1)(d-e) of the Constitution and other criminal laws, if charges were laid against them, and they were convicted.

I suppose Section 137(3) of the Constitution which precludes a person who was sworn in to complete the term for which another was elected as President, from being elected as President for more than one single term, may not be applicable to President Jonathan who completed late President Umaru Yar’Adua’s term, since this occurred in 2010 before this insertion into the Constitution, which came by the Fourth Alteration of Section 137 No. 16 of 2017. The jury is still out on this. While some Lawyers reasonably argue that a law cannot be retrospective, others believe that it is applicable to anyone that is in this situation, because the amendment seeks to avoid a situation where any person stays in office for more than eight years. One would even imagine that, Politicians would ‘take the hint’ from this new provision, especially as President Jonathan’s administration has been fingered as being one of the main reasons for Nigeria being in the horrible position it finds itself today! Apart from the massive corruption in the Jonathan administration, in 2009, the extra-judicial killing of Yusuf Mohammed, the leader of the Boko Haram sect while he was Vice President under President Yar’Adua, is seen to be one of the major accelerants of the insecurity which Nigeria has faced since then.

Conclusion

While the argument that the next President should hail from Southern Nigeria cannot be dismissed with the wave of a hand, especially by those from the North who now conveniently and hypocritically say zoning of the Presidency is unconstitutional, after benefiting from the same doctrine not just during the last electoral cycle, but also after President Obasanjo finished his term of office – what is referred to in law as, ‘approbation and reprobation’ – “quod approbo non reprobo” – “that which I approve, I cannot disapprove”; as we enter into the next electoral cycle, it is imperative that CAPACITY should be our watchword and main consideration, in choosing a President. We must ‘shine our eyes’ and endeavour to select the right leader who can extricate Nigeria from the seemingly insurmountable, unconquerable dilemma that we presently find ourselves in. This, for right-thinking Nigerians, is the most crucial characteristic that we should be looking for in a Presidential candidate, along with attributes like vibrancy, integrity, vision and focus, unimpeachable ideas, moderation, justness, humility, patriotism; a true Nigerian who is not given to discrimination based on tribe, sex and religion, and one who is endowed strength, vitality and good health.

Addressing The Menace Of Fake Varsities In Nigeria

By Afe Babalola SAN

THE quality of education in Nigeria is debased by several factors, including poor infrastructure, inadequate budgetary allocation, inadequate or total absence of standard educational materials, among others. However, one nuisance that continues to run rampant in the Nigerian education sector is fake universities, and over the past years, the National Universities Commission (NUC) has released the names of illegal tertiary institutions in Nigeria, together with taking some punitive steps towards ensuring their closure. Nonetheless, the problem of fake universities in Nigeria may be likened to a multi-headed hydra, with no action by the government putting a finality to this embarrassing issue. Many of the names published as far back as 2012 are still being repeated in 2021, with other names now added to this budding list of illegality. Therefore, in this edition, I will weigh in on this topic, and proffer practicable solutions to curbing the menace of fake universities.

It is increasingly becoming clear that Nigeria is well-renowned in one particular area of the fake goods or services market; fake or illegal schools. Have you heard of the University of Industry, Yaba? How about the UNESCO University, Rivers State or even the Blacksmith University, Anambra State which from its curious name must be a school for students aspiring to a career in the centuries’ old vocation of iron works. Why have illegal schools become so common place in Nigeria?

Education is an important factor in the development efforts of any society or government. In Nigeria, the Government is enjoined by the provisions of Section 18 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) to ensure that there are equal and adequate educational opportunities at all levels. Prior to the coming into effect of the current constitution and particularly in the early years after independence, the regional governments, most notably the Government of the Western Region, had indeed placed a high premium on providing adequate educational opportunities for the citizenry by the introduction of numerous policies such as free education. Governments established primary, secondary, and tertiary institutions of learning which provided in most cases free or highly subsidised education.

However, with the passage of time and worsening economic situation of the country, it became apparent that Government could not continue to fund education alone. Decreased funding brought about dilapidated structures, exodus of highly trained and qualified staff, labour unrests and student disturbances. Many public schools became schools only in name. In several instances, students were forced to take lectures in the open field or under the shade provided by trees as the regular classrooms became unusable. It was against this background that private schools began to blossom. Private schools suddenly became the choice of many parents who had become disgruntled with the decay in the public schools and who all the same desired quality education for their children. To a large extent, these schools have performed creditably well in assisting government to meet the obligation imposed upon it by Section 18 of the constitution.

Advent of illegal schools

However, the Nigerian educational system has for decades now been troubled by the high number of fake or illegal institutions of learning. It appears that some Nigerians desperate to exploit the yearning of Nigerians for education have identified the educational sector as a potential gold mine through the establishment of illegal schools. Before now, Nigerians were accustomed only to incidents of fake clothing or food products. But at the moment, fake or illegal schools are now a common phenomenon. Recently, the NUC released a list of 58 illegal universities operating in the country. Back in 2016, the number of fake universities was 36. From the recently published list on the website of the commission, the universities were located in virtually all parts of the country. Many indeed had very curious sounding names which reasonably should have alerted discerning minds to the fraud represented by the institutions. On the list of illegal universities were UNESCO University, Rivers State, Pebbles University, Atlantic Intercontinental University Okija, Samuel Ahmadu University, Makurdi, Christian Charity University of Science and Tech., Volta University College, Royal University Izhia, Houdegbe North American University, Atlanta University, Anyigba, Evangel University of America and Chudick Management Academic, Lagos, Bolta University College, Aba, United Nigeria University College, Okija, Blacksmith University, Anambra State, Pilgrims University and one University of Industry, Yaba Lagos.

As shocking as the above revelation is, it is clear that the problem is not limited to tertiary institutions alone. In Lagos State, the Government, years back, closed down three private schools operating in the State. One of the Schools was reported to have been using a Container used for the importation of goods as a classroom. In Delta State, the government shut down over 600 illegal schools. In Ogun and Kaduna states, the numbers of illegal schools detected were 160 and 642 respectively. In Kaduna, the Commissioner of Education stated that several of the schools were operating from uncompleted buildings, garages, and shops. As staggering as these figures are, I believe that the number of illegal schools operating in various states are much higher. Furthermore, it does appear that the presence of illegal schools is not new. Many Nigerians have been “awarded” the certificates of these illegal schools in their bid to acquire education. Several of these persons only discovered the truth when they presented their certificates in the process of either seeking employment or seeking promotions at their places of work.

Furthermore, it appears that the illegality in the operation of schools is fast transcending the fact of registration with the regulatory authorities alone. In other words, a school which is properly registered and therefore operating legally in the eye of the law, may yet be operating far below the minimum standards required by law which in my estimation will still qualify it as an illegal school. A visit to many so-called Private Nursery and Primary schools will reveal that many of the teachers are poorly trained and often with little or no educational qualification themselves. Such schools basically employ fresh secondary school graduates who are pursuing admission into tertiary institutions. In few instances where some of these so-called teachers had some form of education, they are usually lacking in any form of training required to enable them to interact with very young pupils who by that fact alone deserve special attention. Yet these primary schools are the foundation of the country’s educational system.

Way out

I am of the view that the increasing number of such schools shows that much more still needs to be done by governments and the regulatory agencies. It is on record that after USA, Nigeria has the largest number of illegal universities in the world. That the NUC could identify and publish a list of 58 unaccredited or illegal universities, as good as it is, is also an indictment on the law establishing the commission. It is also a pointer to the fact that there could be more. The question then is how do we get out of this embarrassing problem? The answer is that government should urgently and immediately amend the NUC law and give the commission sufficient powers of immediate and outright closure of illegal universities with further powers of severe sanctions including forfeiture of the university’s properties to government while the promoters, founders, councils and teachers of such illegality should face life imprisonment.

What the promoters of these illegal universities are doing is worse than armed robbery. Apart from ruining the future of education in Nigeria, they are equally jeopardizing the interest of young Nigerians yearning for quality education for which they deserve no mercy.

AARE AFE BABALOLA, OFR, CON, SAN, LLD. D.Litt.

Presidential Power-Rotation Is A Mandatory Requirement Of The Nigerian Constitution And A Necessary Pre-Condition For Stability And National Integration In Nigeria. [A Rejoinder To J.S Okutepa, SAN]

By Sylvester Udemezue

“If we are to keep our democracy, there must be only one commandment – thou shall not ration justice.” (Governor of Ekiti State v. Fakiyesi (2009) LPELR-8353).

In a published piece (of legal opinion) titled[i] “2023: Nigeria Does Not Need Power Shift, Nigeria Needs Leadership Shift”,  a respected legal giant, fellow LPDite (member, Legal Practice Discourse) and fellow ROLite (member, Rule of Law in Nigeria), Mr. J.S. Okutepa, SAN has made submissions which the present author believes could be fairly summarized in the following sentences:

“Nigeria does not need ‘power shift’ but ‘leadership shift’, ‘character shift’ and ‘attitude shift’; a shift in ‘the way we do things’. Nigeria does not need Igbo, Hausa/Fulani or Yoruba power shift because it is an insult to the collective sensibilities of the more 240 other tribes that are part of the Federation of Nigeria. Nigeria does not need a ‘power shift’ to any of these so-called majority ethnic nationalities of Igbo, Hausa/Fulani and Yoruba because leaving power in the majority ethnic groups has led to deteriorating political, social, and economic developments as the majority ethnic groups have successfully nurtured corruption. Come 2023, let us avoid power shift… we cannot continue to operate a lawless system and expect good results and development… it is the leadership shift we need”.

The reason “the people of the Federal Republic of Nigeria”[ii] decided to give the country a constitution is explained in the Preamble to the Constitution,[iii] thus:

“We the people of the Federal Republic of Nigeria Having firmly and solemnly resolve, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God …. And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people….” (emphasis, mine)

The most fundamental objective of the Nigerian Constitution is to promote unity, harmony, freedom, equality and justice which are the foundations upon which the country itself is founded.[iv] As a follow up, the Constitution proclaims[v] itself the supreme law of the land whose provisions have a binding force on all authorities and persons throughout the Federal Republic of Nigeria. Further, according to the Constitution,[vi] the Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. All and sundry are in duty bound to observe its provisions which remain binding on all powers and principalities within Nigeria, however highly or lowly placed. According to George Washington, the Constitution is the ultimate guide which we must never abandon.[vii] Hear A.E. Samaan, “The U.S. didn’t achieve its liberty or prosperity by mistake. It was by design, and the architects were the Founding Fathers. Rights given by fad and fashion are just as easily taken away. Let no one mess with the Constitution. The Constitution matters.”[viii] Abraham Lincoln put it more aptly: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” In Marwa v. Nyako,[ix]  the Supreme Court gave further illustration to the concept of the supremacy of the constitution, thus:

“The Constitution is described as the grund norm and the fundamental law of the land. All other legislation in this country take their hierarchy from the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument which confers powers and also creates rights and limitations. It regulates the affairs of the nation state and defines the powers of the different components of government as well as regulating the relationship between the citizens and the state”.[x]

It must be noted that the constitution of a country need not contain all the details regarding the structure and governing principles. The constitution of a country, the grund norm, only need to contain the fundamental principles that outline the purpose, structure, and limits of the country. Essentially, the constitution of a country provides a foundation upon which the country operates.[xi] Now, to ensure the promotion and sustenance of those principles of equality, justice, unity and harmony, the Nigerian Constitution[xii] makes provisions for a Chapter 2, which constitutes the “Fundamental Objectives and Directive Principles of State Policy”, the underlying foundation upon which all governance, all aspects of Nigerian State policy and activity shall be based. Although the Chapter appears not justiciable,[xiii] the constitutional directive in section 13 of the Constitution leaves no one in doubt about the level of importance placed on the Chapter: “It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution”. The Constitution then proceeds to give the following further directives with the aim of promoting and sustaining the foundations of Nigeria as enunciated in the preamble:

“The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.[xiv] The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.[xv] National integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.[xvi] The State shall foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties”.[xvii]

For the avoidance of doubts, the present author’s reaction to learned silk Okutepa’s submissions is one of vehement disagreement, informed by the learned silk’s submission that the idea of “power shift” or power-rotation, is an “insult”, unnecessary, “lawless” and should be avoided like a plague. It is in herein argued that Mr. Okutepa’s said suggestions are legally faulty, unsustainable and insupportable; socially unjust and unfair; politically unreasonable and suicidal; culturally insensitive; constitutionally unwarranted and unwarrantable, and indeed an invitation to chaos, anarchy and doom, considering the peculiar nature of Nigeria, a multi-lingual, multi-religious multi-ethnic country of over 250 ethnic groups.

There is need at this point, to respectfully correct certain wrong impressions created by the learned silk in his commentary under consideration. First, the learned silk wants the world to believe that “rotation presidency” or “power shift” in Nigeria  was all about sharing of power among the Igbos, the Yorubas and the Housa/Fulanis. With the greatest respect, this is incorrect. Yes, there are three major ethnic groups in Nigeria, but, legally and politically, Nigeria has six geo-political zones, namely: North-Central; North-East; North -West; South-East; South-South; and South-West.  However, since the inception of the fourth republic in 1999, all discussions about “power shift” or “power rotation” have been about how to share power among these six geopolitical zones on the basis of a north-south shift. It has never been about how to rotate power among the three major ethnic groups of Igbo, Hausa/Fulani and Yoruba. The learned silk’s postulation is, therefore, misleading. An illustration: since Nigeria’s independence in 1960, the Igbo tribe (whether of the South-east or the Igbo-speaking segment of South-South Nigeria) has ruled Nigeria for only SIX MONTHS (January-July 1966), as opposed to the Ijaw tribe of the SouthSouth which has ruled for NEARLY SIX (6) YEARS: 2010 to 2015. The Igbo is one of those ethnic groups Mr. Okutepa describes as “major ethnic groups” while Goodluck Jonathan’s Ijaw tribe of the South-South is one of the “minority” ethnic groups, according to Mr. Okutepa. By the way, what is the “minority in a tribe that has ruled Nigeria for nearly six years out of the nation’s sixty-one years of independence?

Second, Mr. Okutepa represents the three major ethnic groups of Igbo, Hausa/Fulani and Yoruba as the ones whose leadership of Nigeria has,“successfully nurtured corruption” in Nigeria leading to “deteriorating political, social, and economic developments”. This is a misrepresentation; corruption in Nigeria has no ethnic or geographical origin. Neither the Igbo nor the Hausa/Fulani, nor the Yoruba, nor any other ethnic group in Nigeria could validly be described as being the reason why Nigeria is seen as “fantastically corrupt”.[xviii] Indeed, some unconfirmed reports have it, that it was during the Goodluck-Jonathan-presidency that corruption and looting went on unrestrainedly and unabashedly in Nigeria.[xix] The truth, contrary to Mr. Okutepa’s suggestions, is that there is hardly any government in Nigeria that has not been accused of or associated with corruption[xx] — Sir Tafewa Balewa (1960 to 1966); General Ironsi (January 1966 to July 1966); General Gowon (1966 to 1975); General Murtala Mohammed (1975-1976);[xxi] General Olusegun Obasanjo (1976-1979); Alhaji Shagari (1979-1983);[xxii] General Muhammadu Buhari (1983-1985); General Ibrahim Babangida (1985 to 1993);[xxiii] Chief Ernest Shonekan (1993: three months in power); General Sani Abacha (1993-1998);[xxiv] General Abdulsalaam Abubakar (1998-1999);[xxv] Chief Olusegun Obasanjo (1999-2007);[xxvi] Alhaji Umaru Yar’ardua (2007-2010); Dr Jonathan (2010 -2015); Rtrd General Muhammadu Buhari (2015-date).[xxvii] As an observer stated, “abusive, corrupt, and unaccountable Nigerian political leaders have undercut serious efforts to construct stable institutions to govern the country, solidify the rule of law, and promote respect for human rights”.[xxviii] Corruption is a true nationalist in Nigeria; it observes federal character; there is no ethnic group, major or minor, that does not have its fair share of the ugly stain of corruption. One could argue that Corruption in Nigeria belongs to all and to no one in particular. Indeed, if the major ethnic groups in Nigeria are the fathers of corruption in Nigeria, then the minority ethnic groups are the mothers, thus making all and none equally guilty and blameful.

Third, it is difficult to understand the distinction learned silk Okutepa tried to draw between “power shift” and “leadership shift”. Generally, one wonders whether “power shift” is not conterminous with “leadership shift”. But, learned silk has used the two terms to mean two different things. According to him, “power-shift” means rotation of power among the “three major ethnic groups” or, to use learned silk’s own words, “the Igbo, Hausa/Fulani or Yoruba power shift” which is “lawless” and “an insult to the collective sensibilities of the more 240 other tribes that are part of the Federation of Nigeria”. As already pointed out, this author disagrees with the learned silk on this. On the other hand, as the learned silk has said, “leadership shift” means “character shift” “attitude shift”; a shift in “the way we do things”. He has also used the same term, “leadership shift” to describe movement or concentration of leadership/power in the hands of people with integrity and character, and in the hands of “leaders whose actions and decisions will not encourage agitations and separation and balcanisation of Nigeria”. It is difficult to understand in precise terms, the dimensions of the “leadership shift” learned silk has put forward as a replacement for or as an alternative to “power-shift”. However, the present writer does not quarrel with whatever connotation learned silk Okutepa has chosen to give to “leadership shift”, but with the learned silk’s proposition that such “leadership shift” should be pursued and realised outside “power-rotation”.

To learned silk’s suggestion that power shift is “lawless”, one may ask, which law outlaws or forbids power-shift or power-rotation in  Nigeria? And as a direct counter to learned silk Okutepa, the present author holds the respectful view that the idea of “power shift” or “power-rotation” is not only essential and lawful but is authorized and even commanded by the Constitution as a necessary vehicle towards realising the “Fundamental Objectives and Directive Principles of State Policy” as well as to achieving true unity, harmony, equity, justice and equality among the peoples of Nigeria. Consequently, and contrary to the Learned silk’s suggestions, the present author believes that what Nigeria needs now, more than all else, is power-shift in 2023 to the three geo-political zones in the South of Nigeria on grounds of  equity and justice, and later in 2031, back to the north, and so on, in that manner, among the six segments (geo-polical zones) in Nigeria.

Learned Silk Okutepa hails from the Northern segment of Nigeria, and there is no evidence that the same learned silk spoke out against the clamour for power-shift to the north in the run up to the 2015 general elections in Nigeria. On the contrary, learned silk had supported the power-shift to the north. If learned silk did not embark upon this Nigeria-does-not-need-power-shift advocacy when majority of Nigerians believed it was time for power to shift to the north, in 2015, one wonders why now that it’s the turn of the south to produce the next president, in 2023; why now that many believe it is the turn of the north (Mr. Okutepa’s north) to respect “federal character” provisions of the constitution and show integrity, honour, responsibility and gentle-manliness by relinquishing power to the south?  Nigeria’s national ethics shall be Discipline, Integrity, Dignity of Labour, Social, Justice, Religious Tolerance, Self-reliance and Patriotism.[xxix] It is the submission of the present writer that “leadership shift” (whatever learned silk Okutepa and his school of thought, intend the term to mean) could and should be pursued and realised within the context of power-shift to the south in 2023. Thereafter, when next it’s the turn of the north to produce the president (example in 2031), the same school of thought should bring up this “leadership shift” to enable Nigerians Select, Elect and Appoint (SEA) a Nigerian president of northern extraction “whose actions and decisions will not encourage agitations and separation and balcanisation of Nigeria.” There abounds and can be found in each of the north and the south of Nigeria (and indeed in each of the six geo-politacal zones in Nigeria) hundreds and thousands of excellent presidential materials — from among the aged, the middle-aged and the young. There is no segment of Nigeria that does not have competent presidential materials, broad-minded, detribalized and pragmatic leaders.

The present writer agrees that Nigeria is in dire need of men and women of extraordinary leadership qualities –foresighted, hardheaded, and charismatic. This is because more often than not, as the present author has argued, a nation`s greatness depends on the quality of its leaders (as on its followership). The view of the present writer[xxx] as put forward in a commentary titled “A Nation’s Greatness depends on the quality of its Leaders & Followers”,[xxxi] is  summarised as follows:

“Nigeria needs a leader who is heart-driven, one who understands what the country needs on every level; a peacemaker; one who unites, not divides; a cultured leader who supports true freedom of speech, not censorship; a leader who chooses diplomacy over war; a leader with integrity; one who says what they mean, keeps their word and does not lie to their people; a leader who is strong and confident, yet humble; intelligent, but not sly; a leader who encourages diversity, not racism. Nigeria needs a leader who will invest in building bridges, not walls; who will invest in books, not weapons; a leader who brings morality not corruption; intellectualism and wisdom, not ignorance; stability not fear and terror; peace, not chaos; love, not hate; convergence, not segregation; tolerance, not discrimination; fairness, not hypocrisy; substance, not superficiality; character, not immaturity; transparency, not secrecy; justice, not lawlessness; improvement and preservation, not destruction; truth, not lies and propaganda. Nigeria needs a leader who serves the best interests of the people first; who does not sacrifice human life on the altar of sectional interests and bigotry; a leader who is always open to criticism, and does not silent dissent”.

Leaders with all or majority of these qualities exist and can be found in every part of Nigeria; there is no state or segment that has a monopoly of men and women of integrity, fair-mindedness or foresight; men/women “whose actions and decisions will not encourage agitations and separation and balcanisation of Nigeria”. Besides, sauce for the goose is sause for the gander! Any suggestion that power be concentrated in only one segment for too long, to the exclusion of the others is inimical to the fundamental and underlying objectives the Federal Character Provisions of Chapter 2 of the Constitution? Accordingly, any idea of “leadership-shift” that fails to recognise the need for power-shift to the south in 2023, is, with due respect, lawless, unconstitutional, digressive, evasive, beclouds the material issues, and tantamounts to leaving the substance in favour of a pursuit of mere shadows. It’s respectfully submitted, again, that the fundamental objective of the Federal Character Provisions of Chapter 2 of the Constitution is to provide for, authorise, direct and mandate power-rotation in “the government of the Federation” and power-sharing in all government Ministries, Departments and Agencies. Those who try to argue that the idea of “rotational presidency” is not supported by the Constitution either do not fully appreciate the spirit and intendment of the the Federal Character Provisions of Chapter 2 of the Constitution, or are deliberately and distorting the same to suit selfish or sectional interests. It is important to suggest that there are only two options left for Nigerians and Nigerian leaders, if they must save and sustain Nigeria, stabilise democracy, strengthen unity and accelerate the nations’s peace and development: it is either Nigeria embraces “Rotational Presidency” as an indispensable governance creed or the country should opt for Restructuring as a credible alternative. In the event that the country’s leaders and peoples opt to follow the option of power-shift, in order to respect the Federal Character Provisions of Chapter 2 of the Constitution, then the best way to talk about or to go about any idea of “leadership shift” is to advocate that, in rotating power down to the south in 2023, Nigerians should be careful to ensure that they do not elect or select any religious bigot, an ethnic jingoist, a clannish, nepotistic, extremist and clueless leader; that Nigerians should elect a uniting and not a disuniting personality. In this way, one would have acknowledged both the urgent need for “power-shift” to the south in 2023 and at the same time, for “leadership shift” to true nationalists.

It is reiterated that section 14(3) of the Constitution has directed that “The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies”. In its plain sense, it is respectfully submitted, “the composition of the government” of the Nigerian Federation begins with the composition of the office of the President of the Federal Republic of Nigeria; the government of the Federation is headed by the President of the Republic. Accordingly, application of the provisions of sections 14 and 15 of the Constitution must begin with the office of the President. Indeed, it is submitted, a community reading of the Federal Character provisions of the Constitution leaves one with no choice than to agree that the Constitution, as a matter of necessity, prescribes and contemplates the idea of a “rotational presidency” for Nigeria. The first employee, appointee or elected official of the Nigerian Federation, the Nigerian State (which is made up of the Nigerian electorate) is the President of the Federation. The process of installing a President for Nigeria usually goes through the S.E.A procedure:

  1. The Nigerian State (through the political parties, by zoning/nomination/primary election) would first SELECT candidates for the general elections;
  2. Thereafter a Candidate, from among the candidates, is then ELECTED President (via general elections);
  • Finally, the Nigerian State would APPOINT the President into office (via the Presidential Inauguration/Swearing-In).

The appointment of the President is usually subject to monthly wages and salaries, paid from taxes collected from the Nigerian electorate and kept in the Nigerian Federation account .  Section 15(4) of the Constitution places an obligation on “the State” to ensure that the “SEA” procedure is conducted in such a manner as to “foster a feeling of belonging and of involvement among the various people of the Federation” Section 14(3) wants the composition of the government of the Federation (starting from selection, election and appointment into the office of the president) to be done in such a manner as to reflect the federal character of Nigeria, promote national unity, command national loyalty, afford every segment of Nigeria a “sense of belonging”. All government positions, appointments, and offices in “the government of the Federation” (including that of the President) ought to be spread across the various segments of Nigeria. In other words, each and every segment in Nigeria must, in a rotational manner (turn-by-turn), have a taste of each including the office the President. Both in the SEA process and in the composition of the other offices in the government of the federation, including the agencies, Ministries and Departments, there must be “no predominance of persons from a few State or from a few ethnic or other sectional groups” The office of the President is thus not excluded from contemplation and application of the federal character principles and provisions of the Constitution; to suggest otherwise is to do grievous NATIONAL and irreparable harm to the Constitution.  The wording of Section 14(3) shows that the composition of “the government of the federation” which starts with the office of the president IS DIFFERENT FROM the composition of “any of its agencies”. Some people have argued that “chapter 2 of the Constitution neither includes it nor excludes the office of the president?” Such an argument makes no sense at all; it is either the office of the president is covered by chapter 2 or it is not! There is no middle ground! And this writer has no doubt that the former is the correct position!

Now, if one agrees that the office of the president is contemplated in Chapter 2, one has indirectly agreed that the office of the President should be spread (which invariably and irresistibly means “should be rotated” since the office of the President is only one) among the various sections/segments of country in such a manner as to promote and “reflect the federal character of Nigeria” as envisaged by s. 14(3) of the Constitution; to afford  every section of the country a “sense of belonging” as envisaged by s. 14(3); to promote “national unity” as directed by s. 14(3); to ensure “social justice”  as directed by s. 14(1); to “command national loyalty”  as directed by s. 14(3); to ensure “that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups” as directed by s. 14(3); to “foster a feeling of belonging”  as directed by s. 15(4); and to promote “national integration”  as directed by s. 15(2). Finally, in conducting the SEA process (ie., in the process of Selecting, Electing and Appointing a President for Nigeria), and in appointing other members of the government of the Federation or its agencies, ”discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited”. The sum total of the implication of the aforesaid is, one must repeat, that the Constitution has directed (in its Chapter 2), although not directly, that the position of the President must be rotated among the various peoples of Nigeria. Unlike other offices in the “government of the Federation”, the application of the “Federation Character” provisions of Chapter 2 of the Constitution, to the office of the President is PERIODICAL; all segments of the country cannot be given a presidential slot at one and the same time; one segment must take at a time while the others must wait for their respective turns. The Constitution does not specify the precise manner of rotation of the office of the President among the constituent units but requires (by necessary reasonable implication) that occupation of the office must be equitably spread/rotated across the length and breadth of Nigeria. What else could be the reasonable import of the provisions of sections 13, 14 and 15 of the Constitution, if not rotation, equitable spread? How else could the Nigerian Federation achieve the objectives set out in the Federal Character provisions if not through “rotational presidency” or periodic power shift? Indeed, to exclude the office of the head of the government of the Federation in any discussion on implementation of federal character is to promote fraud, elevate insincerity to high heavens, advertise mischief, and perpetuate grave violence against the objectives and express directives of the Constitution. Any suggestions by anyone or group to jettison “power-shift”, unless such is targeted at achieving the alternative — restructuring — could and indeed, would politically spell doom for Nigeria! Regarding the other offices in the government of the Federation, because they are many (there ought to be no fewer than 37 offices of ministers at each time), the Honourable Minister for Agriculture need not come from any particular segment of Nigeria, provided that no fewer than one person is appointed from each State as a Minister for the Federation.[xxxii]

It is interesting to note at this juncture, that even in learned silk Okutepa’s home state of Kogi, advocacy for “power-shift” as a means of ensuring peace, equity, fairness and social justice is on the rise, and rightly so.[xxxiii] As of July 16, 2021, a pressure group, the Kogi Central Political Ambassadors (KCPA), had thrown its weight behind agitations that the governorship seat in the State should shift (be rotated) to the Kogi West Senatorial district in 2023. In a statement, the Chairman of the group, Malam Muhammed Onimisi had noted that the group’s position was premised on “the need for equity, fairness and justice in the state”.  Similarly, sometime in August 2021, a prominent socio-cultural group, the Kogi West Elders Forum (KWEF), urged all political parties in Kogi State to consider candidates from Kogi West Senatorial District as the next governor of the state. The forum deplored “the skewed political power play that has denied the district its good intention and active participation in previous elections, the ability to produce a governor of the state since its creation in 1991”.[xxxiv] Indeed, discussions and campaigns for power-rotation within Kogi State, on grounds of equity, justice and fairness (the same reasons the federal character principle was introduced into the constitution of the federal republic), have of late been in the front-burner. A few days ago, Mr. Yekini Jimoh took a look at the issue of power-rotation within Kogi State amid the ongoing campaigns by some leaders in the state.[xxxv]

The makers of the Nigerian constitution understood and appreciated the practical implications of Nigeria being a multi-lingual, multi-religious and multi-ethnic country; they introduced “Federal Character” to lessen acrimony and friction, create and give a sense of belonging to all parts of Nigeria thereby engendering genuine cooperation, unity and progress among Nigerians. Thus, whether we talk about leadership-shift in terms of gender-balancing or in terms of generational power-shift to the younger generation (to make youths leaders of today) or of leadership-shift to men and women of greater honour, broad-mindedness, integrity, and foresight, one thing that must never be pushed aside without fatally injuring the fabrics of the peace, security, unity and oneness of Nigeria, is the idea of power-rotation among the various segments of Nigeria. The high-heterogeneous nature of Nigeria makes power-shift a necessity in Nigeria; running away from it is like trying to run away from one’s shadows; one would ultimately come back to face reality in the interest of order, peace, justice, unity, political stability, and national integration. Power-rotation is aimed to address the problems of instability, hegemonies, marginalisation, and domination by one segment or region over the others. The only options before Nigeria is to either to consolidate power-rotation and ensuring spread to all segments in an equitable manner or, to restructure the country with a view to giving greater autonomy to the regions or the geo-political zones which make up the federating units. If by their grandstanding, shenanigans and scheming, Nigerian politicians and their advisors destroy the presidential-power-rotation concept, they might have succeeded in destroying unity, peace and stability in Nigeria; peace, unity and stability are essential preconditions for progress and advancement. My question for Nigeria is this: Shall we continue in sin that grace may abound![xxxvi] A reference to a statement by the present author in 2020 appears apt in the present circumstances:

“In 2010, I had warned Nigeria to not destroy the rotational presidency earlier introduced by the PDP in 1999. The South had had power for 8 years with CHIEF OBJ from Ogun State (in the south)as the President. Power thereafter shifted to the north with Alhaji Ya’ardua from Katsina (in the north) as the President. When Ya’ardua died, I wrote and begged Nigeria to ensure that power remained in the north until 8 years before returning power to the south. Nigeria did not listen. Nigerian Politicians jettisoned rotational presidency. It was the death of rotational presidency that polarised PDP membership, and saw to the party’s inevitable ouster from power at the centre in 2015.[xxxvii] This was because, with the disruption in 2011, of the North’s 8-year term (which had begun in 2007) during which period power was supposed to remain in the north, the North had felt cheated and short-changed. The result was the fierce battle by the north to enthrone one of their own at all cost in 2015. And, [indeed,] it was done at all cost….until Nigerian politicians return to running the affairs of Nigeria in line with Federal Character Provisions in Chapter 2 of the country’s constitution, there might never be any hope for Nigeria’s redemption or survival”.[xxxviii]

Above is the present writer’s unsolicited advice to all Nigerians, including the leaders, politicians, followers and observers. Giving advice is a thankless exercise. It is said that bad advice could blind you.[xxxix] Conversely, according to Matshona Dhliwayo, “a good advice will instruct you, excellent advice will enlighten you, and transcendent advice will elevate you.” Accordingly, as suggested by author Mohith Agadi, when one sees good advice, one should not only listen to it, but should also take it. Our hope and progress as a nation would begin only when we learn to carry every section of our country along, to treat everyone as a part of us, to act as one big family, and to eschew segregation, exclusion, clannishness and nepotism in governance.[xl] Our leaders have a choice to make between stabilizing Nigeria and moving it forward and destabilizing it and moving it backwards. In an earlier commentary, the present writer gave the following explanation:

“…..all choices are made with great risks. …we must decide for ourselves, individually, collectively, whether the consequences are worth the action we take….  We always know the right thing to do; the hard part is doing it. Yet, doing the right thing is always the right thing to do. Doing the right thing comprises in facing reality. The reality is that all what we need now is reconciliation with one another, not blaming each other, reparation of damaged relations and society, not bullying of sections of it, reconstruction of devasted hopes, not persecution of those who dared to raise their voices; repentance and re-engineering, not exacerbation and heightening of tension. Sometimes, God doesn’t send you into a battle to win it; he sends you to end it. All kinds of fights end at forgiveness. We must therefore evolve for our country a conflict resolution method which rejects revenge, aggression, oppression, victimization and bullying. Our leaders should stop scaring away [some segments of the country] and making them feel not recognized nor welcome”.[xli]

Finally, in his farewell address to the Americans, at the end of his eight-year tenure as a President of the USA, Bill Clinton had offered the following suggestions to the residents and people of America:

“… we must remember that America cannot lead in the world unless here at home we weave the thread of our coat of many colours into the fabrics of America. As we become ever more diverse, we must work harder to unite around our common values and common humanity…. In our hearts and in our laws, we must treat all our people with fairness and dignity, regardless of their race, religion, gender or sexual orientation”.

Only time will tell whether Nigeria would heed wise counsel? In the mean time, speaking generally a Nigerian proverb has it that,“a fly that refuses to heed wise counsel follows the corpse to the grave”.[xlii] May God Almighty guide Nigeria aright! Amen! Ameen! Amin!

Respectfully,

Sylvester Udemezue (udems),

Lawyer, Law Teacher & Public Legal Affairs Analyst

08109024556. udemsyl@

[i] Okutepa JS, “2023: Nigeria Does Not Need Power Shift, Nigeria Needs Leadership Shift – Okutepa [SAN]” (TheNigeriaLawyerOctober 2, 2021) <https://thenigerialawyer.com/2023-nigeria-does-not-need-power-shift-nigeria-needs-leadership-shift-okutepa-san/> accessed October 2, 2021

[ii] See the preamble to the Constitution of the Federal Republic of Nigeria, 1999

[iii]The Constitution of the Federal Republic of Nigeria, 1999<https://www.wipo.int/edocs/lexdocs/laws/en/ng/ng014en.pdf> accessed October 02, 2021

[iv] In its preamble, as shown above

[v] Section 1(1)

[vi] Section 1(2)

[vii] See: The Library of Congress, “George Washington to Boston Citizens, July 28, 1795” (The Library of Congress)

<https://www.loc.gov/resource/mgw2.040/?sp=28&st=text> accessed October 02, 2021

[viii] See: <https://quod.lib.umich.edu/l/lincoln/lincoln2/1:391?rgn=div1;view=fulltext> accessed October 02, 2021.

[ix] (2012) LPELR-7837(SC), the Supreme Court [per Adekeye, J.S.C (pp. 169-170, paras. B-F)], per Adekeye, J.S.C

(Pp. 169-170, paras. B-F)

[x] See also A-G Ondo State v. A-G Federation (2002) 1 NWLR (Pt.772) pg.222. A-G Abia State v. A-G Federation (2002) 6 NWLR (Pt.763) pg.204. Abacha v. Fawehinmi (2000) 4 SC (pt.11) pg.1. Balonwu v. Gov. Anambra State (2009) 18 NWLR (Pt.1172) pg.13.

[xi] Iowa State Univery, “What is a Constitution?” <https://www.ndscs.edu/sites/default/files/2019-07/PDF/clubconstitutionandbylaws.pdf> accessed October o2, 2021.

[xii]  the Constitution of the Federal Republic of Nigeria, 1999.

[xiii] See the Constitution of the Federal republic of Nigeria (CFRN), 1999, section 6(c).

[xiv] Op Cit., section 14(1).

[xv] Op Cit., section 14(3).

[xvi] section 15(2)

[xvii] section 15(4)

[xviii] See: “David Cameron Calls Nigeria and Afghanistan ‘Fantastically Corrupt’” (BBC NewsMay 10, 2016) <https://www.bbc.com/news/uk-politics-36260193> accessed October 2, 2021; channelsweb, “Nigeria Is ‘Fantastically Corrupt’ – British PM, David Cameron” (YouTubeMay 11, 2016) <https://www.youtube.com/watch?v=Surmq5Uu0YY> accessed October 2, 2021

[xix] See: Sahara Reporters, “Nigeria Lost $32bn To Corruption Under Former President Jonathan – DFID” (Sahara ReportersDecember 12, 2017) <http://saharareporters.com/2017/12/12/nigeria-lost-32bn-corruption-under-former-president-jonathan-–-dfid> accessed October 2, 2021; “Presidency Releases Details of Alleged Grand Corruption during Jonathan Administration” (Premium Times NigeriaMay 10, 2018) <https://www.premiumtimesng.com/news/top-news/267592-presidency-releases-details-of-alleged-grand-corruption-during-jonathan-administration.html> accessed October 2, 2021

[xx]See: “Criminal Politics: Violence, “Godfathers” and Corruption in Nigeria: Historical Background and Context” (Criminal Politics: Violence, “Godfathers” and Corruption in Nigeria: Historical Background and Context) <https://www.hrw.org/reports/2007/nigeria1007/3.htm> accessed October 2, 2021

[xxi] See: Agboluaje R, “How Murtala/Obasanjo Government Engendered Graft in Civil Service” (The Guardian Nigeria News – Nigeria and World NewsNovember 20, 2020) <https://guardian.ng/news/how-murtala-obasanjo-government-engendered-graft-in-civil-service-by-olaopa/> accessed October 2, 2021

[xxii] See: Frankel G, “Nigerian Leader Promises Crackdown on Corruption” (The Washington PostJanuary 3, 1984) <https://www.washingtonpost.com/archive/politics/1984/01/03/nigerian-leader-promises-crackdown-on-corruption/0c0695f6-2b9b-45ca-9c59-7cf8b484c72f/> accessed October 2, 2021

[xxiii] (Nigeria – The Babangida Government) <http://countrystudies.us/nigeria/73.htm> accessed October 2, 2021

[xxiv] García LPV, “Political Corruption in Nigeria: Sani Abacha” (Streiner) <https://streiner.mx/en/case_study/political-corruption-in-nigeria-sani-abacha/> accessed October 2, 2021

[xxv] McGrill C, “Military Drains Nigeria’s Coffers” (The Guardian, May 18, 1999) <https://www.theguardian.com/world/1999/may/18/chrismcgreal> accessed October 2, 2021

[xxvi] See: Punchng, “Obasanjo Is Grandfather of Corruption in Nigeria –Reps” (Punch NewspapersNovember 25, 2016) <https://punchng.com/obasanjo-grandfather-corruption-nigeria-reps/> accessed October 2, 2021; “CORRUPTION: Obasanjo’s Eight Years Worse than Abacha’s – Ribadu” (Vanguard NewsSeptember 5, 2011) <https://www.vanguardngr.com/2011/09/corruption-obasanjo’s-eight-years-worse-than-abachas-ribadu/> accessed October 2, 2021

[xxvii] See: Omorogbe P, “Corruption ‘Massive, Widespread, and Pervasive’ under Buhari ― US” (Tribune OnlineApril 2, 2021) <https://tribuneonlineng.com/corruption-massive-widespread-and-pervasive-under-buhari-―-us/> accessed October 2, 2021; “Corruption under Buhari Is Worse, Says Babangida” (The Guardian Nigeria News – Nigeria and World NewsAugust 6, 2021) <https://guardian.ng/news/corruption-under-buhari-is-worse-says-babangida/> accessed October 2, 2021

[xxviii] Criminal Politics, Op Cit.

[xxix] The CFRN, 1999, section 23.

[xxx] Which is an adaptation of a famous statement by Suzy Kassem, American writer, poet, philosopher, and multi-faceted artist of Egyptian origin, in the book, Rise Up And Salute The Sun (2011) <https://www.goodreads.com/work/quotes/14994756-rise-up-and-salute-the-sun-the-writings-of-suzy-kassem> site accessed October 02, 2021.

[xxxi] See: Udemezue SC, “A Nation’s Greatness Depends on the Quality of Its Leaders & Followers By Sylvester Udemezue” (BarristerNG.comOctober 11, 2018) <https://barristerng.com/a-nations-greatness-depends-on-the-quality-of-its-leaders-followers-by-sylvester-udemezue/> accessed October 2, 2021

[xxxii] See: Udemezue, S.C., “Why Nigeria Must Always Have a Minimum of Thirty-Seven (37) Ministers for the Government of the Federation” (kelechukwuuzoka.wordpress, January 25, 2017) <https://kelechukwuuzoka.wordpress.com/tag/buhari/> accessed October 02, 2021

[xxxiii] See: “2023 Gov’ship: Kogi Central Group Supports Power Shift to West” (Obervertimes, 16 July 2021) <https://observerstimes.com/2021/07/16/2023-govship-kogi-central-group-supports-power-shift-to-west/?> accessed October 02, 2021.

[xxxiv] See: Oguntola T, “Kogi West Elders Want Power Shift To Zone” (Leadership News – Nigeria News, Breaking News, Politics and moreAugust 20, 2021) <https://leadership.ng/govship-group-seeks-power-shift-to-kogi-west/> accessed October 2, 2021

[xxxv] Jimoh Y, “Kogi: Will Power Shift in 2023?” (Tribune OnlineSeptember 7, 2021) <https://tribuneonlineng.com/kogi-will-power-shift-in-2023/> accessed October 2, 2021

[xxxvi] My answer is: “God forbid”.  See:  the Bible book of  Romans 6:2

[xxxvii] See for example Tattersall N, “Q A: Nigeria’s Presidency and the North-South Question” (Reuters, July 27, 2010) <https://www.reuters.com/article/us-nigeria-president-rotation-idUSTRE66Q2ZD20100727> accessed October 2, 2021: It was reported thus“Uncertainty over whether Nigerian President Goodluck Jonathan will stand in elections next year is largely due to a nebulous understanding that power rotates between the Muslim north and Christian south. Although not formally set in writing, there is an agreement among the political elite in the ruling People’s Democratic Party (PDP) that the presidency should alternate between north and south after every two four-year terms. Jonathan, a southerner, took over as head of state earlier this year after the death of President Umaru Yar’Adua, a northern Muslim who was part way through his first term. Some northern power brokers say what should have been his second term can only be taken by another northerner and that Jonathan should therefore not stand. Other northerners say it is time for the “zoning agreement” to be jettisoned.” See also: Owen O and Usman Z, “Briefing: Why Goodluck Jonathan Lost the Nigerian Presidential Election of 2015” (OUP Academic, June 29, 2015) <https://academic.oup.com/afraf/article/114/456/455/24831> accessed October 2, 2021

[xxxviii] <ttps://www.courtroommail.com/mr-uwais-leave-diatribes-and-mudslinging-and-lets-focus-on-the-rotational-presidency-provisions-of-the-nba-constitution-by-udems/> accessed October 02, 2021.

[xxxix] Per Matshona Dhliwayo

[xl] See: Udemezue, S.C., “Warning Alert to Political Leaders: Compliance with the Federal Character Provisions of the 1999 Constitution  of Nigeria Is Not Dependent on Voting Patterns during Elections” (BarristerNG.comMarch 18, 2019) <https://barristerng.com/warning-alert-to-political-leaders-compliance-with-the-federal-character-provisions-of-the-1999-constitution-of-nigeria-is-not-dependent-on-voting-patterns-during-elections-sylvester-udemezue/> accessed October 2, 2021

[xli] Udemezue SC, “A Catholic Cogitation On The Freeze Order Against Bank Accounts Of Alleged #EndSARS Protest Promoters -By Sylvester Udemezue ” (BarristerNG.comNovember 8, 2020) <https://barristerng.com/a-catholic-cogitation-on-the-freeze-order-against-bank-accounts-of-alleged-endsars-protest-promoters-by-sylvester-udemezue/> accessed October 2, 2021

[xlii] Quoted by Chinua Achebe in Arrow of God. See: “A Quote from Arrow of God” (Goodreads) <https://www.goodreads.com/quotes/1132116-the-fly-that-no-one-to-advise-it-follows-the> accessed October 2, 2021. See also: Chic African Culture Blog, “A Fly That Does Not Heed Advice Follows the Corpse to the Grave” (African cultures express, encourage, and communicate energyJune 3, 2021) <https://www.theafricangourmet.com/2014/07/a-fly-that-does-not-heed-advice-follows.html> accessed October 2, 2021.

The Illegality And Breach Of Collective Fundamental Right Of The People Of Southern Nigeria Of Freedom From Domination For Another Fulani Man Or Northerner To Succeed President Buhari In 2023 – An Analysis

Recently, there have been passionate and clarion calls beginning with the Nigerian Southern Governors Forum on the 16th September 2021 and Southern and Middle Belt Alliance (SAMBA) for Southern Nigeria to produce the next President of Nigeria come 2023. In an opposition style, the Northern States Governors’ Forum held a meeting on the 27th September 2021 to express a contrary position to the call of their colleagues in the South. Pockets of legal experts from the South and North have also expressed opinions on the rotation of the President or otherwise.

Noteworthy, the Nigerian President is the alpha and omega in the country as ALL executive powers are vested in him. See Section 5 Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as the “Nigeria Constitution”). As such, it is a given that a Nigeria President is domineering, as all frightening powers of the State including that of the Armed Forces, State Security Services, Police Force, Economy and Finances and even the power to appoint the Chief Justice of Nigeria are in the sole hand of the President, amongst other numerous powers.

Furthermore, Nigeria like most other African countries is composed of heterogeneous ethnic groups. This is the upshot of colonialism which strung together different unrelated peoples for administration convenience and economic exploitation of the colonial master. Hence, is the reality of Nigeria as a country with over 250 ethnic groups falling either in the North or South geography of the country.

Fully aware of the rampant heterogeneous ethnic groups comprising most African States, the Assembly of the Heads of State and Government of the Organization of Africa Unity (now African Union since 2002) in Banjul in 1981 adopted the African Charter on Human and Peoples’ Rights (hereinafter referred to as the “Banjul Charter”) and consciously provided against the domination of a people by a people in article XIX thereof. It is no news that in 1983 the National Assembly pursuant to a similar Section 12 of the incumbent Nigeria Constitution transformed to the Nigeria municipal jurisdiction verbatim the provisions of the Banjul Charter now African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, LFN, 2004 (hereinafter referred to as the “African Charter”), hence a domestic law in Nigeria.

It is trite that the provisions of the African Charter are enforceable as fundamental rights together with Chapter IV of the Nigeria Constitution. See Order II Rule 1 Fundamental Rights (Enforcement Procedure) Rules 2009. In Ogugu v. State (1994) 9 NWLR (Pt 366) 1 at 26-27 the Supreme Court per Bello CJN held that by virtue of its transformation, the African Charter has become part of Nigeria’s domestic laws and “the enforcement of its provisions fall within the judicial powers of the courts as provided by the Constitution and all other laws relating thereto”. Furthermore, the Court of Appeal held similarly as above in the case of Fawehinmi v Abacha (1996) 9 NWLR (Pt 475) 710 thus:

The African Charter is enforceable by the several High Courts depending on the circumstances of each case and in accordance with the rules, practice and procedure of each court.

Having abundantly established that the provisions of the African Charter are enforceable in our courts, same prohibits none dominance of a people by a people and such constitute a collective fundamental right of a people in the Nigerian jurisprudence. Article 19 of the African Charter provides thus:

All people shall be equal; they shall enjoy the same respect and shall have the same rights. NOTHING SHALL JUSTIFY THE DOMINATION OF A PEOPLE BY ANOTHER.

Having noted at the beginning of this article that the office of the Nigeria President is domineering since ALL executive powers are vested in the President, it goes against the collective fundamental right of freedom from domination of the people of Southern Nigeria for another Fulani man or Northern Nigerian to become the next Nigerian President in the obvious bid to DOMINATE the people of Southern Nigeria.

I hereby use this medium to call upon the two main political parties, to wit, APC and PDP, to zone the presidential tickets to Southern Nigeria to avoid their candidates being on a collision course with the law and the collective fundamental rights of the people of Southern Nigeria and hence illegal with the clear consequence of holding such candidacy null and void. I would also use this medium to remind the North that in 2019 PDP entirely zoned the presidential ticket to the North without a single Southern Candidate. APC did same by adopting President Buhari as a consensus candidate.

The consequences of a Northern President emerging in 2023, apart from being illegal, national unity and loyalty of Southern Nigeria would be endangered, as rightly envisaged in Section 14 (3) of the Nigeria Constitution. This is because no section of the country would agree to act as a slave to the other concomitance of DOMINATION.

Lastly, I want to call on credible candidates of Southern Nigeria extraction to begin to warm up for office of the Nigerian President in 2023 as follows: Dr Okonji Iweala, Mr Peter Obi, Prof. Yemi Osinbajo, Governor Rotimi Akeredulu, Governor Nyesom Wike and Mr Akinwunmi Adesina.

Othniel A. Ikpibako holds Master of International Law and Diplomacy, Master of Laws, Associate Member Chartered Institute of Arbitrators (UK) and an International Law Consultant.

Did Peter Obi Actually Break The Law?

I had the privilege to stumble on a report titled: “Pandora Papers: Inside Peter Obi’s secret businesses — and how he broke the law”. It was written by one Taiwo-Hassan Adebayo and published in Premium Times Newspaper on the 4th day of October, 2021. Most Nigerians and indeed my humble self, had perceived Peter Obi to be an epitome of transparency, good governance, patriotism and economic astuteness. This perception heightened my curiosity to read through the article in order to discover the hidden secrets which the article had to bear against the former two term Governor of Anambra State and the vice-presidential candidate of the Peoples Democratic Party (PDP) in the 2019 general election. Having read through the article, my lawyerly self queried whether Peter Obi actually violated the law as alleged in the article. This prompted my decision to dispassionately test the allegations against Obi against the provisions of the law.

The allegations in the article basically border on allegations of tax evasion and non-declaration of certain jointly owned assets by Obi. It was argued that Obi committed the offence of tax evasion by establishing a company outside the shores of Nigeria in “havens where little or no taxes are paid”. It was further argued that Obi committed a crime by non-declaration of some of his jointly owned assets outside the shores of Nigeria and failure to resign from the board of directors of those companies 14 months after assuming the office of the governor in Anambra State. These allegations shall be addressed seriatim.

It must be stated there is a world of difference between allegation, facts and evidence. Allegations are mere claims and assertion of a person’s wrongdoing that are not yet proven. Facts are events that are confirmed or verifiable. While evidence are concrete facts used to support an assertion or a claim. At the moment, the claims of Adebayo against Obi are still within the realm of mere allegations. However, this article will proceed with the assumption without necessarily conceding that Adebayo’s claims against Obi are factual, as the said Obi still enjoys the presumption of innocence in his favour as protected by the Constitution of the Federal Republic of Nigeria. This presumption stands unshaken until otherwise proven.

A cursory look at Adebayo’s article would reveal that the author seems to have confused tax avoidance for tax evasion. It is appreciated that both terms may easily be mistaken one for another or erroneously used interchangeably except for persons who are well informed about tax laws. In simple terms, tax evasion is an offence, whereas tax avoidance is not an offence. At this point, it must be stated that on the authority of Section 36 (12) of the Nigerian Constitution, a person shall not be held liable for an offence except such offence is expressly defined by a written law and a sentence specifically prescribed thereto. The case of George v. FRN (2015) All FWLR (Pt. 718) 879 is apt in this regard.

In Nigeria, tax evasion used in two sense. First, as a specific offence. Second, as generic expression for acts of tax non-compliance or violation of tax laws. Section 26 Value Added Tax Act 1993 and Section 164 Custom and Excise Management Act 1959 are the two known tax law provisions that specifically provide for tax offence. Every other tax offence including omitting or understating income in order to make incorrect return; failure to keep the required records; refusal or neglect to pay tax; dishonest declaration of income, earnings or assets; fraudulent tax returns, etc. are loosely referred to as tax offences. However, the definition of the “tax evasion” in the two aforementioned tax law provisions has nothing to do with a business man deciding which part of the country to invest his legitimately earned money. It would be preposterous and despotic for any government to even prevent any entity from making such business decision, when the same government do solicit for foreigners to invest in the Nigerian economy. Why should a Nigerian be penalised for deciding to invest his resources in other countries irrespective of the prevailing tax rate in that country? Indeed, the question to ask is: is there any Nigerian law that prohibits and penalises a Nigeria from investing in any jurisdiction outside Nigeria? Adebayo did not mention any. My guess is, he could not find any.

Business owners and entities ordinarily direct their business undertakings in such a way as to avoid financial liabilities including payment of tax. This is what is also known as tax planning. To quote Lord Clyde in the case of Ayrshire Pullman Motor Services and D. M. Ritchin v. Commissioner of Inland Revenue, (1920) 14 Tax Cas 754, 763–764: “No man in this country is under the smallest obligation moral or otherwise so to arrange his legal relations to his business or to his property as to enable the Inland Revenue to put the largest possible shovel into his stores. The Inland Revenue is not slow and quite rightly to take every advantage, which is open to it under the taxing statutes for the purpose of depleting the taxpayer’s pocket. And the taxpayer is in like manner entitled to be astute to prevent so far as he honestly can the depletion of his means by the revenue. Every company has the option of carrying out tax planning in order to minimize tax liability within the law of the territory in which it operates”.

There are tax avoidance schemes that is even recognized by tax laws. Individuals or companies may avoid payment of tax by simply increasing its capital expenditure in order to reduce its taxable profit. In this instance, the company would be said to be taken advantage of section 24 of the Company Income Tax Act (CITA) which includes certain capital expenditures as allowable deductions. This would be regarded as measures taken to reduce its tax liability. Provided such act is not prohibited by law, the company cannot be said to have committed any tax offence.

Provided that a particular scheme to avoid or reduce tax liabilities are not prohibited by law, they are still within the realm of tax avoidance and no criminal liability can accrue thereto. The best the government can do to address the incidence of tax evasion is to identify tax avoidance schemes and then get the legislature to criminalise it. Then again, the legislative enactment criminalising such act has effectively moved from tax avoidance into the realm of tax evasion. Until there is a law prohibiting a Nigerian from investing outside the shores of Nigeria, Peter Obi cannot be said to have committed the offence of tax evasion or any other tax offence(s), however so called.

On the issue of non-declaration of jointly or partly owned foreign asset: the law which addresses this subject is majorly the constitution and the Code of Conduct Bureau and Tribunal Act. Section 11 (1) (b) Part I Fifth Schedule to the Constitution Adebayo referred to requires a public officer to declare his properties, assets, and liabilities. The said provision did not specifically require the declaration of jointly or partly owned assets. It is appreciated that a public officer is required to declare his assets in view of the public trust reposed in the office they occupy. It would be irrational to expose assets that are partly owned by other individuals, when they are not the ones occupying the public office in question. Some business investors actually prefer to invest quietly, hence, a declaration of their jointly owned assets breach that business trust which they expect from their business partners. This otherwise could amount to a breach of the right to privacy and quiet enjoyment of the property of these individuals.

It is to be noted that Section 6 (b) of the Code of Conduct Bureau and Tribunal Act did not prohibit a public officer from holding an interest in a company. It only prevents the said public officer not to personally “engage or participate in the management or running of any private business, profession or trade”. To my mind, this does not preclude a public officer to shut down his hitherto existing business or profession simply upon his assumption of public office. It would be unreasonable for the law to expect that of such public officer. Provided the public officer is not personally involved in administering the business while in office, he is in the right side of the law. The appointment of nominee directors by companies are legitimate and well known corporate law practice recognised by the Companies and Allied Matters Act. More so, Nigerian law recognises that companies have distinct personalities different from its shareholders and directors. As such, it is legally incorrect to say that a person owns a company. Adebayo failed to tie down Obi’s personal involvement in the administration of the companies while occupying the office of the governor of Anambra State.

  • Mr. Herbert, a legal practitioner and legal research consultant, writes from Ibadan, Oyo State

Separation Of Powers, Checks And Balances (2)

By Mike Ozekhome SAN

Last week, we started this discourse, the doctrine of separation of powers, the present Nigerian judiciary vis-à-vis the government’s anti-corruption fight. A true government of separated powers assigns different political and legal powers to the legislative, executive and judiciary branches. Today, we shall further x-ray the doctrine of the rule of law and the concept of separation of powers as it relates to the doctrine of judicial review.

realm and amenable to the jurisdiction of the courts (equality before the law); secondly, no man can be made to suffer either in body or goods except for a distinct breach of the law established in the ordinary process of the courts; and, thirdly, there is the principle of legality, which requires that those exercising state power or political authority must be able to justify their actions as authorised by the law.

It is this third aspect of the rule of law that courts seek to enforce. In the exercise of its executive authority, the government must not infringe the limits which the legislature has ordained. The courts will invalidate any order, if the government has gone beyond the province of its executive competence. The doctrine of judicial review was invented to check and control governmental power and to limit the application of the principle “quod principi placuit legis habit vigorem” (the sovereign’s will has the force of law) that gave the government unrestricted discretionary powers so that everything they did was within the law. It is this missionary spirit of the quest for administrative justice and the need for improvement of the technique of government that is the connecting thread throughout the doctrine of judicial review in pursuit of a harmonious whole.

Similarly, the basis of parliamentary sovereignty is the constitutional authority of legislature to positively legislate. In exercising that political sovereignty when positively legislating, Parliament is not so bound. Parliament is sovereign not by statutory device or grant, but through political reality and, in essence, the common law. However, the rule of law dictates that there is need for balancing the coercive authority of Parliament in terms of positive legislative competence against the need for that authority to be limited and justified. Therefore, if Parliament acted without reason, the courts have the power to review Parliament’s decision and declare it null.

The case most commonly associated with the origin of the power to strike legitimately and properly enacted legislation under judicial review is Marbury v. Madison. Marshall, J. examined the constitutional structural arrangement created by the founding fathers of the American Constitution and reasoned from three premises that, in America, under the Constitution, the judiciary has the power to refuse to apply legislation: the Constitution is the “superior para- mount law” over “ordinary legislative acts,” and when in a conflict with any other law, the Constitution must prevail. The judiciary, in its role of applying and interpreting the law, must be the organ charged with the final determination of the law against the Constitution.

The Nigerian judiciary, in a bold defence of its constitutional role to adjudicate, challenged the ousting of its jurisdiction by various decrees in the famous and historic case of The Attorney General (Western State) & Ors. v. Lakanmi & Ors. The separation of powers provided for under the 1963 Constitution, though not as sharp as that of the 1979 Constitution, was relied upon by the court in this popular case, which was considered the primus inter pares of the cases against ouster of court’s jurisdiction and executive usurpation of judicial power. In that case, the Supreme Court had the opportunity of having a clear interpretation of the provisions of the 1963 Constitution and made adequate pronouncement on the principle of separation of powers contained therein, when it held thus:

“We must here revert once again to the separation of powers, which, the learned Attorney General himself did not dispute, still represents the structure of our system of government. In the absence of anything to the contrary, it has to be admitted that the structure of our constitution is based on the separation of powers, the legislature, the executive and the judiciary, our constitution clearly follows the model of the American constitution. In the distribution of powers, the courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the state.”

However, to prevent the judiciary from overreaching its constitutional mandate, the doctrine of stare decisis has been used to limit the courts. If the court rules that a law is unconstitutional in a particular case and then different parties petition the court with another challenge on the same legislation, a court bound by stare decisis must again rule that the law is unconstitutional. If the court lacked the command of stare decisis, perhaps the court might feel more inclined to rethink its decision, but a court limited in its discretion does not have the luxury. Therefore, judicial review is claimed as a right of the court to limit the legislature and executive, and stare decisis is imposed as a political product of the common law limiting the court. The jurisdictional competence

of the courts to review the decisions of the executive and the legislation of the National Assembly can be seen as the limitation of stare decisis on the court being extended by structural necessity to the co-equal branches. If all the three branches are co-equal and co-sovereign, and yet one branch is bound by precedent, by necessity that constraint must also limit the co-equal branches to the extent that the court will review the other branches actions.

The place of the judiciary

In some nations, under doctrines of separation of powers, the judiciary generally does not make laws (which is the responsibility of the legislature), or enforce law (which is the responsibility of the executive), but interprets law and applies it to the facts of each case. In other nations, the judiciary can make laws, known as common law, by setting precedent for other judges to follow, as opposed to statutory law made by the legislature. The judiciary is often tasked with ensuring equal justice under law.

Time again and again, the Nigerian judiciary has come to the aid of our democracy, churning out groundbreaking judgments to sustain democracy.

Charles Hughes (1862-1948), U.S. jurist and politician, echoed these famous words, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”

The Nigerian judiciary, since the inception of democracy in Nigeria in 1999, has stood out among other arms of government. For many years the Nigerian public has been inundated with corrupt practices of members of the executive and the legislative arms, excluding the judiciary. This is why the recent brutality on the judiciary has come as a shock to the majority of Nigerians.

The National Judicial Council, which is the apex body for the nation’s judiciary, is a creation of the 1999 Constitution of the Federal Republic of Nigeria, as amended, by virtue of Section 153. The powers and functions of the NJC are clearly specified in Paragraph 21 of Part 1 of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria, as altered.

Now this

The judiciary is assigned the delicate task of determining the extent and scope of the power conferred on each branch of government, what the limits on the exercise of such powers are and the determination of the question whether any action of any branch transgresses such limits. The judiciary is the guardian of the Constitution and of democratic values.

Secondly, the judiciary ensures that every exercise of power by other organs of government is in accordance and in compliance with the requirements of Rule of Law. In Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621, the Supreme Court held that: “The Nigerian Constitution is founded on the rule of law, the primary mean- ing of which is that everything must be done according to law.”

Thirdly, the judiciary, of the three arms of government, only has the competence to supervise and review
the actions of the other two and, where necessary, declare them null and void. This viewpoint was emphasized by Fatai Williams, CJN (as he then was), in Attorney General of Bendel State v. Attorney General of the Federation & 22 Ors. (1983), 3 NCLR 1 at 40, when he held that, “Courts of law in Nigeria have the power and indeed the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural as laid in the relevant provisions of the Constitution.”

This is the more reason why judges are highly revered in the polity.

Fourthly, the judiciary adjudicates on disputes between states, between the state and individuals, between individuals and corporations or corporate entities, among others. The judiciary determines the meaning of the laws of the country.

And this…

Sounds and bites

Week after week, henceforth, this column will deliberately include short bites on some sounds and bites. It would include jokes (to soothe our aching nerves), philosophical platitudes (to redirect our steps), and scriptural quotes (to pave the way to eternity). We commence this week.

“I sold my fridge of 130K for 35K, you come back dey tell me say the fridge dey shock. The price no shock you.”

– Anonymous

“To all husbands, 2 very important tips for a happy married life:

#1. Keep quiet when your wife is talking.

#2. Don’t talk when she is quiet.” – Anonymous

Thought for the week

“ON the mountains of truth you can never climb in vain: either you will reach a point higher up today, or you will be training your powers so that you will be able to climb higher tomorrow.”

(Friedrich Nietzsche)

Islamic Law And Divorce: The Tale Of The Northern Women

By IMRAN, Ridwan Anuoluwapo

Was there any obstacle in Aisha’s marriage or it was picture-perfect?.

“Aisha is the firstborn of her family but lost everything after her marriage to Aminu. The marriage only lasted 4months. Aminu turned out to be not much the gentleman he appeared to Aisha on their first meeting….”

The high rate of divorce in northern Nigeria has become a worrisome phenomenon. Some years ago, an organization of widows and divorcees tried to stage a massive march through the city of Kano to draw attention to their situation. Divorce is a solution to otherwise unacceptable pressures, particularly on young women, in a society that requires them to be subordinate and marginal within the extended family.

A firm union of the husband and wife is a necessary condition for happy family life. Islam, therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. In fact, Muslim couples are taught to see divorce as the very last option in settling marital discord. For Allah doesn’t love those who see talaq (divorce) as the first way to solving marital issues.

However, where negotiation to keep the marriage fails when one of the two wants out badly, Allah puts in place ways of severing the union without one of the parties, be it the female or the male, being cheated. This is done by the issue of talaq.

Under Islamic law, divorce is given in various ways: firstly, the man can decide to let his wife go by the pronouncement of one talaq. Secondly, one talaq is given by a sharia court in a circumstance where the woman wants out of the marriage, but the man won’t give her the talaq. The Shari’a court has the power to give one and only one talaq.

The main traditional legal categories are talaq (repudiation), khulʿ (mutual divorce), judicial divorce, and oaths. The theory and practice of divorce in the Islamic world have varied according to time and place.

The word “Saki”, is used to mean(Talaq) divorce in the northern part of Nigeria. I.e, it’s a way by which a husband will pronounce the word divorce to his wife or cut the tie of marriage, between the husband and wife. It’s a clear statement that, in our community today, 80 percent of Islamic personal law cases are divorce cases.

Today, the sad reality is, people no Longer follow the steps in pronouncing divorce. As a Muslim, your way and conduct of life have to be guided by the path of Islam as laid down by Allah. In some instances, whereby a husband will pronounce the word divorce to his wife without giving her an interval to purify herself. Even though, the husband can inform the wife that, if you do this I will divorce you. Islam is still loud about making divorce the right way and at the right time.

Again, we now have ugly happenings where women want to take charge in divorce. A wife squeezing her husband to divorce her without any justification is frowned at by Islam. But it now happens frequently. It has now been a tradition for husband and wife in northern Nigeria to dissolve their marriage within seconds base on will and desire with what they understand to be “Saki”

To what magnitude is it to confess that the word Saki is in line with the position of Islamic Law?

According to the Qur’an, the relationship between spouses should ideally be based on love ( mawadda was Rahma, 30:21)

“And it is among His signs that He has created for you wives from among yourselves, so that you may find tranquility in them, and He has created love and kindness between you. Surely in this, there are signs for a people who reflect.”

and important decisions concerning both spouses should be made by mutual consent. When marital harmony cannot be attained, the Quran allows and even advises the spouses to bring the marriage to an end (2:231)

“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things.”

although this decision is not to be taken lightly, and the community is called upon to intervene by appointing arbiters from the two families to attempt a reconciliation (4:35)

“And if you fear a split between the two of them, then appoint an arbiter from his relatives and an arbiter from her relatives. If they desire reconcilement, Allah shall reconcile them.1 Indeed Allah is all-knowing, all-aware”.

The Quran establishes two further means to avoid hasty divorces. For a menstruating woman, Al-Baqarah 2:228

“prescribes the waiting ( Iddah ) period before the divorce is finalized, as three monthly periods”.

Similarly for non-menstruating women, including post-menopause women and pre-menarche girls, At-Talaq 65:4

“And those women from among you who have despaired of (further) menstruation, if you are in doubt, their ‘Iddah is three months, as well as of those who have not yet menstruated. As for those having pregnancy, their term (of ‘Iddah ) is that they give birth to their child. And whoever fears Allah, He brings about ease for him in his affair.”

By the sunnah, by the dictates of Prophet Mohammad, consists of a single pronouncement of divorce made in the period of the (purity between two menstruations), or at a time if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period of iddah.

The requirement that the pronouncement is made during a period of the applies only to oral divorce and does not apply to talaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can be revoked at any time before the completion of the period of iddah, thus hasty, thoughtless divorce can be prevented. The revocation may be effected expressly or impliedly.

Thus, if before the completion of iddah, the husband resumes cohabitation with his wife or says “I have retained thee’’ the divorce is revoked. Resumption of sexual intercourse before the completion of the period of iddah also results in the revocation of divorce.

In principle, Husbands and wives should not seek divorce without making serious efforts at reconciliation amongst themselves. They are expected to sit and discuss together. Attempts at reconciliation may involve arbitration, whether formal or informal because Muslim law prefers reconciliation to adjudication.

In conclusion, it’s very important to note that, Islam is a religion of peace, and has not left anything on touch. That is, you can’t bring in any culture or practice into the religion of Islam. Allah says in (Qur’an, 5:3)

“I perfected for you your religion and completed My favor on you and chosen for you Islam as a religion.”

So, therefore, the practice of divorce in the northern community has not followed the procedure laid down by Islamic law. Because Islam enjoys reconciliation rather than dissolution of marriage, there is a need for restructuring and rebuilding of the practice of Islam and shariah law in the northern society to abolish some primitive, barbaric, age worm, and uncivilized culture under the umbrella of practicing Islamic law. Divorce is never a solution to a happy life, nobody is perfect. The paragon of perfection belongs to Almighty Allah. I rest my case.

Imran Ridwan is a law undergraduate from Faculty of Law, University of Maiduguri. He is reachable vide 08131077061 and [email protected]

References

1- Quranic verses

2- Sunnah

3- Family, marriage and divorce in Hausa community: A sociological model, By Luigi M. Solivetti

Anambra governorship election and candidates primed to win

By Law Mefor

Barring any dramatic turn of events, which includes security challenges truncating the guber election altogether, one of these four is most likely to succeed Chief Willie Obiano as the governor of Anambra state. The big four candidates, in the order of their surnames are: Chief Valentine Ozigbo, Prof Chukwuma Soludo, Senator Andy Uba and Senator Ifeanyi Ubah. Since the return of the country to democratic dispensation in 1999, election to the office of governor of Anambra state has been largely predictable. Only two political parties have produced the governor of the state since 1999.

The political parties are: the Peoples Democratic Party, PDP, and All Progressives Grand Alliance, APGA, and the governors they have produced are: Dr. Chinwoke Mbadinuju (PDP) from 1999 to 2003), Dr. Chris Nwabueze Ngige (PDP) from May 2003 to March 2006; Peter Obi (APGA) from 17th of March 2006 to 2nd of November 2006, when he was removed and from 9th of February 2007 to 29th of May 2007 after his removal was overturned by the court.

The governorship election that was held on the 14th of June 2007, after the court ruled that Obi had to complete a four-year term, produced Senator Andy Uba as the winner. Senator Andy Ubah was in office only for 17 days, which was in June, 2007. Peter Obi won the 6th of February 2010 election for a second term as governor and was succeeded by Chief Willie Obiabo, who has been in office since 2014 to date.

There are age long traditions, which govern the election of the governor of Anambra State. The state is unique in many ways while obeying the flow of the dictates of the nation’s type of democracy. The factors deciding the winners of election in Nigeria vary in their impact in Anambra state. No doubt Money is a factor in elections in Anambra but not quite an overriding one in the state. What mostly happens is that most candidates have their own money, forcing the money factor to neutralize itself, thus allowing other factors to become more compelling.

Like in other parts of the country, elections are still rigged in Anambra state. In the past results have been brazenly manipulated, which formed the basis for the nullification of the election of Chris Ngige as governor as proved at the tribunal.

Then, coming to the current governorship election, the political parties cleared to contest the Anambra governorship election are 18. But beyond the identified four candidates flying their parties’ flags, the rest may just be contesting to make a statement and to add to their curriculum vitae as former governorship candidates.

The four men most likely to succeed Obiano, going by their antecedents, pedigrees, personality, and capacity of party platforms, in order of surname, are: Ozigbo, Valentine, Soludo, Chukwuma, Senator Uba, Andy, and Senator Ubah, Ifeanyi.

There are candidates equally with very impressive democratic credentials in the other political parties standing for the Anambra governorship election but party structures, grassroots spread and loyalty, which will play decisive roles are not much in their favour. However, though YPP is not much of a political party in terms of structures and grassroots spread, its flag bearer, Senator Ifeanyi Ubah, has over the years been setting up grassroots structures, which will compensate for grassroots spread and structures.

This is the first shot that Valentine Ozigbo is taking at governorship of the state unlike the other top three who have been in the race before. But though relatively unknown compared to his opponents, Ozigbo has inherited the PDP formidable structure in Anambra state with a strong possibility of the PDP at the national level offering support. Indicating that PDP at national level will offer Ozigbo both financial and moral support is underscored by the setting up a national campaign council for Anambra state governorship election, with a serving governor, Dr. Okezie Ikpeazu, as chairman. Equally significant is that Ozigbo is a protégé of Peter Obi the most successful governor of the state and vice presidential candidate of the PDP in the 2019 presidential election.

Professor Chukwuma Soludo the former governor of CBN and the candidate of the ruling party in the state, APGA, is also well positioned and enjoys the cover of incumbency and therefore is the candidate to beat. His support base is however being constantly assailed and eroded with spate of defections from the ruling APGA, mostly to the All Progressives Congress, APC.

Senator Andy Uba has quite a lot going for him too. He is the candidate of the All Progressives Congress, APC, which is the nation’s ruling party. President Muhammadu Buhari told Andy Uba after he won the party’s governorship primaries, “I am anxious for your success”. This sentiment of Mr. President suggests that the President and the APC at the national level are taking Anambra state governorship election seriously. The party has also constituted a national campaign council for Anambra governorship election, headed by Hope Uzodinma, the governor of Imo state. What is more, Andy Uba has been governor of Anambra state before, though briefly and certainly has a lot he forgot in the Anambra state government house for which he is running with so much determination.

Finally, Senator Ifeanyi Ubah has all the makings of a giant killer. Senator Ifeanyi Ubah, it was, who stopped both Andy Ubah and Price Nicholas Ukachukwu from going to the senate in 2019 and took the position instead to become the incumbent senator representing Anambra South senatorial district. What is most remarkable about Senator Ubah going to the senate may not be that he displaced the more preferred candidates to win the senate seat, but he did so from a relatively obscure political party, the Young Progressives Party. YPP has been so inconsequential that Ifeanyi Ubah is the only member of the party elected to any political office. His case was therefore like that of one running for the senate as an independent candidate. Repeating the same fit in the governorship election cannot be a surprise.

Apart from these top four candidates, there are candidates in small political parties who could become dark horses, especially Dr. Godwin Maduka running under Accord Party, Dr. Obiora Okonkwo running under Zenith Labour Party, and maybe one or two others.

The strengths and weaknesses of these main candidates most likely to succeed the incumbent governor will be analyzed in subsequent articles. They are indeed the real men standing in Anambra state governorship election, barring any surprise that could be sprung by a dark horse.

• Dr. Law Mefor is a Senior Fellow of The Abuja School of Social and Political Thought; Tel.: +234- 905 642 4375 E-mail: [email protected]; follow me on tweeter:@LawMefor1.

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