By Dr. Brian-Vincent Okey IKEJIAKU
A test case as conceptualised in this article is a case or action that sets positive or negative precedent for other cases or actions involving the same or similar action or question of law.
Recently (June 2018), President Buhari awarded the late Moshood Abiolo, posthumously the Grand Commander of the Federal Republic (GCFR). This was after twenty (20) years of Abiolo’s ‘untimely’ death in 1998 – death that was connected to his widely accepted victory of 1993 (freest and fairest) presidential election that was annulled by the former military dictator Gen. Ibrahim Babangida (rtd.). In the same manner Gani Fawehinmi, a celebrated human rights crusader and the champion of June 12 democracy struggle relating to Abiolo’s victory was also awarded Grand Commander of the Order of the Niger (‘GCON’ Posthumously).
While it is generally accepted by both the President’s allies and opponents alike that his action in this respect deserves a pat at the back; however, good actions are expected to be in agreement with the laws of the land. In other words, the actions of President must be in accordance to the Constitution of the Federal Republic of Nigeria and/or other legislations (in this case, the National Honours Act 1964).
A cross section of the well-meaning Nigerians have voiced out their opinions in response to the President’s action. A brief review of these opinions is helpful in sending across the right message of this short commentary-article to the Nigerian masses:
– Mr. (Senator) Dino Melaye by citing Chapter 43(2) of the National Honours Act (NHA) argued that the Act does not allow for conferment of the said honours on non-Nigerians. While, this author does not agree with Senator Melaye that Abiola is no longer a Nigeria because he is dead; he supports his view that Chief Abiola is a true patriot and philanthropist; thus, deserves more, but only ‘if’ the action of the President is in consonant with the law of the land.
– Mr. Belgore, the former Chief Justice of Nigeria (CJN, 2006-2007 and the Chairman of the 2016 national honours committee) posits that the national honours cannot be awarded posthumously because it is for people living and therefore it is not done. The validity of this opinion depends on the provisions of NHA 1964.
Other notable Nigerians aired out their opinions on this salient issue, while some support the action of President Buhari, others completely opposed such action:
On one hand;
– Mr. Abdul Mahmud (Abuja based Lawyer), while frowning at Belgore’s position, suggests that the action or decision of the President is absolutely legal because the NHA allows the President (that is all the Nigeria Presidents) to exercise discretionary powers to honour the dead. Mr. Mahmud made a comparative reference to former President Jonathan failure to honour Stella Adadevoh (the Nigerian doctor that died gallantly while helping cure the dreaded Ebola virus patients). This issue remains, does the NHA actually gave such discretional powers to the President(s).
– Mr. Oshoma, a Lawyer based in Lagos described the action of the President as a fulfilment of an overdue pleasant expectation, since the Act under sub-section 3 makes his action valid. Arising from the foregoing, there is no controversy over the pleasant nature of the President’s action, but whether it is actually valid looking at the provisions of the NHA.
– Mr. Keyamo’s statement that nothing in the law expressly barred the President from conferring national award on those deserving Nigerians that were dead, relying on the basis of ‘political expediency’. However, the issue is whether the word ‘expedient’ that appears in section 3 NHA 1964 was meant also to serve the interest of the demised Nigerians.
On the other;
– Mrs Lilian Eroni, another Lagos-based Lawyer (just like the general public) opines that though the honour of the memory of Chief Abiola is significant, but the manner the President handled it is illegal – she thereby echoes the opinion of Belgore (former CJN). The issue for the Nigeria is to give proper and accurate interpretation of the law.
– Mr. Ahmed Raji (SAN) supports the view of Belgore (former CJN) as the most lucid.
– Mr. Chris Uche is of the view that the President must have gone too far in stretching the section of the law that allows a President to give national honours to persons in absentia. Uche submits that the flexibility of the relevant section of the law is inadequate to satisfy posthumous award.
– Mr. Oghenovo Otemu (a constitutional lawyer), while commending the courage of President Buhari for revisiting the June 12 presidential election issues positively, however showed his deep concern that the steps taken in a bid to please the people, are steps in a wrong direction because they are illegal.
It is necessary to make reference to the provision of the relevant section(s) 1-3 of the NHA 1964;
- The President shall by notice in the Federal Gazette signify his intention of appointing a person to a particular rank of an Order.
- Subject to the next following paragraph of this article, a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose,
- the insignia appropriate for that rank; and
- an instrument under the hand of the President and the public seal of the Federation declaring him to appointed to that rank
- If in the case of any person it appears to the President expedient to dispense with 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.
No law of a country is beyond given contradictory, dubious, or double interpretations; it all depends on the level of civility of the people, the activeness of the rule of law and the citizens’ obedience to the rule of law. Based on a dynamic approach to the understanding of meaning and interpretation of the law; in Nigeria, negation of the rule of law is a common place, even by some of the legislators and other national leaders. This is achieved by given a deliberate (formalistic and anti-formalistic approaches) to legal interpretation, by wrongly interpreting the law; rather than pragmatic approach to legal interpretations (see Villa’s work in Journal for constitutional theory and philosophy of law, 2010).
This author of this short piece refuses to concur that there is a legal vacuum or gap created by the presumed silence (if any) of these sections of NHA 1964 in relation to the eligibility of awarding the said national honours to the dead. The language of the sections is very clear and unambiguous; the reliance of some people on wrong interpretation of section 3 of NHA 1964 – to mean that it is a discretion President(s) could extend to the dead posthumously is simply unreasonable and nonsensical.
The phrase ‘in person’ in section 2 means ‘physical presence’ that is receiving the honour in person physically from the President and the phrase in section 3 ‘dispensed with’ means ‘in absentia’ that is awarding the honour to a person who is not physically fit (ill or bedridden) to receive it in person. Strictly speaking and pragmatically interpreted, it denotes honours to a person who is living not dead.
There are legal and political implications of President Buhari’s action of posthumous (GCFR & GCON) awards. Legally, the posthumous award breaches the relevant sections of the NHA 1964 and therefore may be a bad precedent for the future leaders of Nigeria. It might not appear surprising if any future leader withdraws the award on the ground that it was illegally awarded. The opinion of Mr. Belgore, the former Chief Justice of Nigeria (CJN, 2006-2007 and the Chairman of the 2016 national honours committee) should be taking seriously. He is not just a big voice in the legal circle, but also one of the corner-stone on law relating to national honours.
The division of lawyers on such an important legal issue and the continuing legal debate on a matter that was codified or written down in the Act suggests that there is problem of legal interpretation in Nigeria, and this appears to ridicule the legal system and the stability of the nation. This is because the executive could control the nation on their own whims and caprices. One does not see anything wrong in amending the relevant law to accommodate such an action – an amendment that would have quickly received the support of the legislative organ. The assertion of Mr. Keyamo (SAN) with due respect is more political oriented than legal in character and should be distanced – his comparative analysis with Presidential pardon or amnesty to convicted criminals is highly faulted; this is because the former is on strict legal issue and the later is about justice and fairness. Mr. Tofa of Social Democratic Party (Abiola’s opponent) in the election has this to say “While I do not begrudge the president his power to bestow favour on whomsoever he pleases, it is also important, especially for history, for all actions from the highest authority in the country to be based on fair play and Law” (Times 10 June 2018).
There has also been an argument put forward in some quarters that President Jonathan, President Yaradua, and President Obasanjo (all past leaders) failed to do what President Buhari did (including the case of demised Ebola Medical Doctor). However, the reality is that these leaders had some more respect to the letters of the law, as the conferment of posthumous national honour is an act of illegality. In the same angle, the attention of Nigerians should be drawn to the fact that May 29 is legally recognised by the law as the formal handover date (commonly referred as democracy day), as a mere Presidential declaration cannot take the force of law to subvert the already existing law without the consent of the National Assembly.
Politically, the President’s posthumous award came at a time when Buhari is facing serious opposition by other parties, many Nigerians, and some former leaders; the award seems to be a path-way to silence his political critics irrespective of whether it breaches the law or not. Also, President Buhari knows that even his critics will support his action since Chief Abiola was widely acclaimed as the winner of the 1993 presidential election.
Generally, the action might have been packaged in order to win back the dwelling support of the people of the Southwest (the main constituency of Chief Abiola), the part of the country where Buhari had overwhelming majority votes during 2015 election. The package appears to represent a positive way to ask the people of Southwest to reciprocate the good gesture in 2019 election.
The author humbly concludes this short piece by stating that Nigerians, particularly the learned, the political class and the influential should not be prone to supporting whatever favours them politically or otherwise, irrespective of the negative impact on the progress of the nation. This is the cardinal problem setting the wheel of Nigeria’s progress backwards.
Short Bio: Dr. Brian-Vincent Okey IKEJIAKU
Is a Nigerian trained Lawyer (a notary public) & Political Scientist, who holds a PhD from the Keele University, UK. He is an international interdisciplinary scholar who has taught Law & Politics/IR in both Nigeria and the UK, and presently teaches Law at the Coventry University United Kingdom – where he is the Deputy Director of Postgraduate Law Programme; and Research Associate at the Centre for Trust, Peace & Social Relations (CTPSR).
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