By Muiz Banire, SAN

The story of today revolves around a wise man that knows the limit of his strength. Most times, people crash because they fail to appreciate the limit of their capacity. This applies to leadership and, by extension, government. To situate the gist of this piece properly, I am taking a brief and elementary excursion into the concept of social pact.

Recall that, during the state of nature, all individuals had their natural rights, which they exercised maximally. There was no restriction as to the way and manner in which individuals exercised their rights. Consequently, conflicts and chaos characterised that era, and it was a reign of the survival of the fittest. This Thomas Hobbes captured in his famous statement that life during the state of nature was “nasty, brutish and short.” Due to the attendant anxiety and suspicion trailing this era, society then realised that the only means to peaceful co-existence was the curtailment of their natural rights.

In furtherance of that, each member of the society then agreed to shed a portion of his rights in a pool for the benefit of all. This pool of rights was exercised on behalf of all by the selected or elected few that constituted the representatives of the people. Their mandate was essentially the promotion of the welfare of the people and the provision of security for all. This arrangement is what, in political theory, is known as the social pact. In modern times, it has metamorphosed into government and governed relationship, and manifests in various forms and shapes across the globe. In some societies, it operated in a democratic form; in others, as oligarchy; in some, as totalitarianism, etc. The import of this is that whichever system of government is chosen in a republic or country, the fact is that the representatives are under the social pact of providing security for the people and making provision for their welfare. Even under authoritarianism, the leaders are obliged to respect the pact.

The import of the above is that rights or powers exercisable by political leaders in any society are donated or conceded by the people to them. “Conceded” in the context of autocratic regimes like the military administrations. This is because, should the people resist their reign, there is little or nothing the military leaders can do. The implication of the above is that the people can always recall the donated powers anytime they are uncomfortable with the mode of the exercise of the power by their representatives, particularly where such exercise fails to meet the objectives of the social pact.

In the Nigerian context, the Constitution provides that the country can only be run in a democratic manner through the election of the leaders of the people. As a corollary, the Constitution further provides that those elected leaders can be removed by the people at any time before the expiration of their mandate, if the people feel their leaders are not meeting their expectation of good governance. This is achievable through the power of recall in the case of parliamentarians, and impeachment in terms of the executive. This underscores, again, that power and sovereignty belong to the people always. I have gone this far to explain the relationship between the government and the people to appraise their respective strength and weaknesses. Remember that I have once contended elsewhere that ignorance constitutes another major bane of Nigeria’s development. See my column in the Daily Sun of September 10, 2020, “Impact of illiteracy on public office (https://www.sunnewsonline.com/impact-of-illiteracy-on-public-office)”. If this point is taken, can we then proceed to analyze the respective positions of the political leaders and the people in the context of the aftermath of the #EndSARS protest?

Recall that the youth had gathered on the streets to protest the rot in the system, denoted by the atrocities of the defunct SARS operatives. In the process, alleged hoodlums, in my view, the deprived lots, hijacked the protest and wreaked havoc on society in most parts of the nation other than Lekki toll gate and Alausa. Prior to the criminality provoked, in my view, by the premature attack on the protesters, as the attack took place prior to the curfew time, the youth had provided security cover for themselves in default of police protection for such protests. The consequences of the indiscretion of the attack by the Army, though allegedly through the use of blank bullets, eventually led to the unimaginable. In the aftermath of this, there has been controversy around what the government’s approach should be in addressing the developments. This is in the wake of information that some of the arrowheads of the protests have since become victims of travel restriction, freezing of accounts and indiscriminate arrests. As per the passport seizure, the fact, as revealed, exonerated the Immigration Service who I found out was not only civil in the process of the impoundment on the confused strength of information from another agency of state but was prompt in resolving the issue through the release of the passport to the victim.

With respect to the various arrests, I seem not to have any reservation with the security agencies’ acts. I know that any person can be invited, arrested and interrogated over any alleged crime. What must not happen, however, is the torture and illegal detention of the suspects. I am not aware of such iniquity in this regard. The only worrisome area is the rumored denial of bail by the court, coupled with the long adjournments. This wrong, as alleged, cannot be put at the doorstep of the executive, as the court is still presumed independent of the executive.

That leaves me with the freezing of the accounts of some of the protesters at the instance of the Central Bank of Nigeria (CBN). Although it would appear, by the relevant provision of the Banks and other Financial Institutions (Amendment) Act, the CBN can trigger the freezing of accounts on suspicious ground of criminality, I am of the view that the power vested in the governor under the provision does not extend to terrorism, as bandied in the public. Terrorism-related issues are governed by the Terrorism Act. In the said Act, where any financial or non-financial institution suspects movement of money in relation to terrorism, it is meant, within 72 hours to notify the Financial Intelligence Unit who is under obligation to notify any of the appropriate security agencies for action. It will interest you to know that the said financial unit is domiciled in the CBN. Beyond this, 60 days is the maximum period permissible under the Terrorism Act for accounts freezing. Now, for whatever it is worth, if we assume, without conceding, that the CBN is so empowered to seek the freezing order, the relief sought must be with a view of transferring the investigation to the police or any other relevant security agency. It cannot be to enable the CBN to carry out any investigation and inquiry as sought and ordered. This is buttressed by the provision of the same Act under which it acted; the provision mandates immediate referral by the governor of CBN to the Nigeria Police Force or any other appropriate authority. To the extent that the order fails to do that, I consider the order a nullity. Beyond this, I reckon from the core mandate of the CBN as encapsulated in the CBN Act, it is not a crime investigation agency.

Freezing accounts ex parte for a period of up to six months again will appear to me as an infraction of the constitutional right of the protesters who enjoy fair hearing under the Constitution. I am not unaware that the court provided the window of challenge, but the question is, who funds the legal process and where do they get the fund from when their accounts are already frozen? Remember, these are struggling youth propelled in the first instance by economic frustration. During this period of freezing their accounts, what happens to their constitutionally guaranteed right to private and family lives? Further, the act of the CBN is a decimation of the role of the security agencies. What expertise does the CBN have in investigating terrorism and other crimes? In my strongest view, I believe Nigerians, particularly the lawmakers, must, as a matter of urgency, rise to repeal this barbaric provision, failure of which the bad precedent will, in the nearest future, come to haunt them and other Nigerians. They must know that they are victims in waiting. The political manner in which it is presently being applied will fester during political periods. In this regard, history is replete with records.

At this juncture, it is my counsel that government must re-engage the youths in good faith. The need to engender confidence in the government cannot be over-emphasized, particularly when we appreciate the distrust of the people for the government and, by extension, the political leaders. An aggravating factor of the protest itself stemmed from the same mistrust between the parties. The ignoble acts of the overzealous government officials responsible cannot but continue to widen the gulf between the government, the youths and the people in general. This is not a laurel for any administration. The earlier, the better the leaders wake up to the reality that no degree of intimidation can suppress any idea that is ripe. The truth remains that conditions warranting the protests are still prevailing and need to be tamed in order to engender confidence in the youths and Nigerians in general. Conducive and peaceful atmosphere is sine qua non to development.

The nation cannot afford a repeat of any protest of this or higher magnitude. The only way to forestall such is to negotiate with the youth in good faith. The truth remains, as widely acknowledged, that those who make peaceful negotiation impossible, render violence inevitable.

Government must, as a matter of urgency, drop all these dictatorial acts and embrace dialogue with the youth to douse the tension in the country. Therefore, I am of the view that the government should review its alleged steps, if it truly initiated them. We certainly do not want to grow youth that are docile and passive. Whatever be the gaps in their reactions, they can be reformed by the leaders under their leadership obligation. While not condoning criminality in any guise, the government ought to separate the genuine protesters from the criminals who used the opportunity to loot, maim, kill and destroy. Appropriate penalty should be meted out to those who actually deserve same and not to victimize genuine protesters. Leaders should not be seen as setting a precedent for victimization and vindictiveness. This takes us back to the theory of state formation and social pact discussed earlier as the government must realize that its existence and legitimacy depend on the donation of power voluntarily made by the people. Where the people feel that the exercise of the power is no longer to the ultimate benefit of their lot, the consequence is revolt which may take any form and foist negative consequences on society. A careful management of the situation can put the youths in confidence that the necessary reforms that can guarantee a better future for them would emerge. Failure to do that can lead to the more active among the youths going underground and thereby becoming more revolutionary than expected. The example of the Russian revolution of February and October, 1917 is not incapable of repetition in history. Those who fail to learn from history are bound to repeat it.

Editors Note; Written By Muiz Banire, SAN and originally published in Sunnewsonline

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