Posthumous “GCFR” National Honour for late Chief M.K.O Abiola: A Legal Pitfall? By: Dr Abdullahi Ishola

I. BACKGOUNDS On Wednesday, the 6th Day of June 2018, the President of the Federal Republic of Nigeria, Muhammadu Buhari, GCFR, declared that the highest National Honour, Grand Commander of the Federal Republic, “GCFR”, would be conferred posthumously on late Chief MKO Abiola on 12th June 2018. Similarly, the next highest National Honour, Grand Commander of Niger, “GCON”, was equally declared to be similarly posthumously, as well, conferred on the late Human Rights Activist of international repute, Chief Gani Fewehinmi, SAN. This was contained in a Press Statement of that date, personally signed by the President himself. As contained in the said Press Statement, the posthumous conferment was informed “after due consultations”. Also, the Press Statement further explained that, “in the views of Nigerians, June 12th, 1993, was far more symbolic of Democracy Day in the Nigerian context than May 29th or even the October 1st” (NB: 29th May has been celebrated by Nigerians for the past 18 years as Democracy because it was the date, for the second time after October 21st, 1979, an elected civilian administration took over from a military government. The 1st October was the date Nigeria got its independence from British government in 1960). While the award was to be conferred on Abiola as the “presumed winner of the June 12th, 1993 cancelled elections”, Fawehinmi was to be so honoured as “the tireless fighter for human rights and the actualization of the June 12th elections and indeed for Democracy in general” (see paragraph 4 of the Press Statement). As expected, the declaration was greeted with mixed reactions from different quarters and stakeholders. Of unique concern, however, was the reaction that came from a former Chief Justice of Nigeria (CJN), Hon Justice Alfa Belgore who opined that the conferment of the highest honour of the land on late Chief M.K.O Abiola, posthumously was illegal. As it was reported, the learned retired CJN was credited with this view on the ground that, there is no legal permission for the President to confer a National Honour posthumously and especially so when it is GCFR, the highest honour of the land (see Samuel Ogundipe, “Buhari’s award of GCFR to M.K.O Abiola is illegal – Ex-CJN Belgore”, Premium Times, June 6, 2018 at:  https://bit.ly/2JfzpON; The Cable, 6^th June, 2018: “Ex-CJN says Buhari’s award of GCFR to MKO Abiola is illegal” at:  https://bit.ly/2xVSP62). These sources revealed that the ex-CJN expressed this view in an interview granted to the PREMIUM TIMES via a telephone conversation. The issues arising from the view of the former CJN are two-fold, namely; i) whether any civil National Honour (as different from the Military honours which the CJN also agreed can be conferred posthumously) can be conferred posthumously and ii) whether the award of GCFR, specifically, can be so conferred posthumously. It is deducible from the opinion of the learned retired CJN that, he seems not to see anything illegal in the conferment of any other civil National Honour, below the GCFR. Therefore, through a critical review of the law, this article appraises the correctness or otherwise of the view of the learned retired CJN. In essence, this essay examines the legality of the posthumous award of the National Honours to both Chief M.K.O Abiola and Chief Gani Fawehinmi, SAN, respectively, as declared by the President in his Press Statement of 6^th June 2018. The analysis also appraises the legal propriety of the declaration of the awards in a “Press Statement” rather than in an official Gazette. II . LEGAL BASES FOR NATIONAL HONOURS The history of the award of National Honours in Nigeria dates to the year 1964. The institution of the awards was made for laudable purposes. As observed by the PM News in its Editorial of six years ago, 2012, “when the national honours were instituted by the National Honours Act No. 5 of 1964 during the First Republic, it was meant to honour Nigerians from all walks of life who have rendered special and outstanding services in their various callings to the benefit and progress of the nation” (PM News: “Who Deserves a National Honour” at: https://bit.ly/2HqGRRH). Thus, the primary legal basis for the award of National Honours is the “National Honours Act, CAP N43, Laws of the Federation of Nigeria (LFN), 2004”. The 1999 Constitution of the Federal Republic of Nigeria (as altered) is also a legal instrument relevant to the issue of National Honours in the country. The Constitution assumes the relevance on two grounds; first as the Supreme law of the land; implying that if the National Honours Act is contrary to any of the Constitution’s provision, it would be null and void to the extent of the inconsistency (Section 1(1) and (3), 1999 Constitution). Second, there are specific provisions in the Constitution on the award of National Honours. And expectedly, the National Honours Act has subjected the power vested in the President to award the Honour to those provisions of the Constitution on the matter. Interestingly, the relevant provisions of the Constitution, contained in Part One (B) of Third Schedule to the 1999 Constitution merely vests an advisory power in the Council of State Part I (B), Council of State to “advise the President in the exercise of his powers with respect to the award of national honours”, among others [see Paragraph 6 (a) (iii), Part One (B) of Third Schedule to the 1999 Constitution]. Thus, there is no big issue to arise about whether the President followed the advice of the Council of State or not in declaring of the Honours on the specified deceased personalities. It is enough and highly informing that the President made it clear in the Press Statement that, the declaration was made after wide consultations. The wide consultations can be presumed to have included getting an advice from the Council of State, if they so choose to exercise the power conferred on them by the Constitution in that regard. Based on the above, with the greatest due respect, it would appear pointless for the reputable and distinguished highly learned retired CJN Belgore to have claimed that he was not consulted. There is no legal responsibility on the President to consult an individual before exercising that power. More so, the learned CJN can also not be heard to complain or feign ignorance on this because, by virtue of the constitutional provisions, he, like all other former Chief Justices of Nigeria, is a member of the Council of State [see Paragraph 5 (d), Part One (B) of Third Schedule to the 1999 Constitution]. His complaint that he was not consulted could rather give an impression that he has not been constant or actively involved in the activities of the Council of State. He could not validly paint the President wrong for his own abdication from the constitutional privilege of being a member of the body empowered to advise the President on the issue of award of national honours. Be that as it may, other important legal instruments relevant to the award of the National Honours are (1) Honours Warrant; (2) Honours (Armed Forces) Warrant; (3) Honours (Police) Warrant; (4) Honours (Prison Services) Warrant; and (5) Honours (Fire Services) Warrant. All these are the Subsidiary Legislation to the National Honours Act. Consequently, they also have the force of law just like their Principal Act, though subjected to the Principal Act. As regards the award of GCFR and GCON, only the Honours Warrant is relevant. Therefore, subsequent analysis shall be made with substantial reference to it (hereinafter called “the Warrant”). Before proceeding to the next issue, it must be quickly pointed out that, “National Honours” are different from “National Merit Awards” and “National Heroes Awards”, respectively. The National Merit Award, officially called the “Nigerian National Merit Award” (NNMA), is regulated by the “Nigerian National Merit Awards (NNMA) Act, CAP N122, LFN 2004”. The Nigerian National Merit Award is defined by the Act as: [an award] “given to deserving citizens of Nigeria for intellectual and academic attainments that contribute to national endeavours in science, technology, medicine, the humanities, arts and culture and any other field of human endeavour whatsoever.” [section 1(1), NNMA Act]. On the other hand, National Heroes Awards are regulated by the “Nigerian National Heroes Register (NNHR) Act, CAP N121, LFN, 2004”. The essence of the National Heroes Award is to maintain a special Register “in which shall be inscribed in a permanent form, the names of citizens of Nigeria (whether alive or dead) deserving a place of honour in Nigeria’s history”. Apart from the general requirement of being a Nigerian citizen, there are four (4) conditions to be fulfilled before eligibility for the NNHR Award. These are spelt out in section 3(1) (a) – (d) to the effect that, for any person to be nominated for the award:  “(a) he shall have rendered continuous service of a public nature (whether or not in the public services in the Federation) for a period of not less than ten years; (b) he shall be or have been a person of undoubted integrity; (c) he shall have achieved distinction in his chosen occupation, profession, calling or in any field of human endeavour whatsoever; and (d) if alive, he shall not be less than fifty years old and, if dead, he shall not have died before 1st January, 1914”.      The National Honour Award is conferred absolutely at the discretion of the President. The only legal eligibility is for the person to be a citizen of Nigeria, though non-citizens can also be awarded the honorary status of the award (Article 2 of the Honours Warrant). It therefore follows that what remains to be clarified now is the procedure for the conferment of the Honour. After this, the legality of awarding the honour posthumously will be addressed. III. PROCEDURES FOR THE CONFERNMENT OF NATIONAL HONOURS By Article 1 of the Warrant, two main Orders of Dignity are established to be awarded by the President to deserving citizens as National Honours. These are “Order of the Federal Republic” and “Order of the Niger”. Each of these two main Orders are also furthered divided, in ranks, into four (Article 1 (1) and (2) of the Warrant). Thus, in all, the National Honours that can be awarded by the President are:

1. Grand Commander of the Order of the Federal Republic (GCFR)
2. Grand Commander of the Order of the Niger (GCON)
3. Commander of the Order of the Federal Republic (CFR)
4. Commander of the Order of the Niger (CON)
5. Officer of the Order of the Federal Republic (OFR)
6. Officer of the Order of the Order of the Niger (OON)
7. Member of the Order of the Federal Republic (MFR)
8. Member of the Oder of the Niger (MON)

It should be stated that the above initials have become conventional to signify each rank of the Orders of Honours. Article 5 of the Warrant permits the holder of the Honour to use the letters appear in the exergue of the medal of the rank, usually in the above initials. Procedurally, it is mandatory for the President to indicate his intention to appoint any person to a particular rank of an Order by notice in a Federal Gazette. This is because of the use of the word “shall” in Article 3(1) of the Warrant which spells out the “Mode for appointment to Orders”. The law is long settled that the use of the word “shall” indicates mandatorily and lack of discretion. Therefore, the President cannot legally yet be taken to have validly indicated his intention to award the honours of GCFR to late Chief M.K.O. Abiola and GCON to late Chief Gani Fawehinmi, posthumously, respectively, as indicated in his “Press Statement” of Wednesday 6^th June 2018. The legal reason for this is too obvious and needs no further clarification. Certainly, the “Press Statement” is not the Federal Gazette required by the law. Therefore, the “Press Statement” merely remains a political message that still requires legal perfection pursuant to Article 3(1) of the Warrant. The next legal requirement for a valid conferment of any of the honours, the awardee is required to receive the award from the President in person. This is to be done at an investiture held for that purpose [Article 3(2) of the Warrant]. A flimsy reading of this Article would suggest that any person that cannot be personally present at the investiture cannot validly be conferred with honours. Reasonably, this can make one conclude that posthumous award of any of the honours cannot be legally valid. It is therefore apt at this stage to address this issue.  IV. VALIDITY OF POSTHUMOUR HONOURS: GCFR AND GCON To determine the legality of posthumous National Honours in Nigeria, reference must still be made to the Warrant. A careful reading of Article 3(2) thereof indicates that that paragph (2) is subject to the paragraph (3). Paragraph (3) of Article 3 unequivocally provides that: “If in the case of any person it appears to the President expedient to dispense with the requirements of paragraph (2) of this article, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the direction”.   The foregoing is very clear. The law therefore allows the to confer the National Honours on any person (male, female, living or dead) even when such a person cannot be personally present at the relevant investiture. It is not opened for arguments that when the person to be honoured is dead, it becomes expedient for the President to dispense with his personal presence as stipulated in paragraph (2) of Article 3. Also, the President is vested with the power to direct any person who cannot be personally present, such as the dead, to “be appointed to the rank in question in such a manner as may be specified in the direction”. Now, has the President not acted in accordance with this stipulation of the law? Certainly, he has. He has directed that late M.K.O Abiola should be awarded the rank of GCFR. He has specified that the way the honour shall be conferred on him is posthumously. So, where does the issue of legality arises? A well-known principle of statutory interpretation is that what is not expressly stated shall not be read thereto. Thus, since there is no provision that any of the honours cannot conferred posthumously, and the law permits the President to confer it on any person, it follows that posthumous National Honours in the country, including GCFR, is not illegal. To hold otherwise will amount to reading into the law what is not contained there. V. CONCLUSION This article has examined the position of the law on the legality of posthumous National Honours in Nigeria. The discussion has especially focused on the validity of awarding the highest rank of honour, GCFR, in the country. It has been shown that the President is legally fortified in declaring to award GCFR to late M.K.O Abiola who is the acclaimed winner of the June 1993 elections which were annulled by the then government. The analysis however observed that the declaration of the President’s intention to award him the honour in a “Press Statement” is not legally valid. As a condition precedent, the President is required to give the notice in a Federal Gazette. This is therefore a legal condition that must be satisfied to make the process legally tenable. Once this is done, the issue of legality of the posthumous award will be laid to rest. By: Dr Abdullahi Ishola, Kwara State University Malete (KWASU)]]>