The desire to be remarkable is inherently embedded in the nature of mankind. Everyone wants to excel, to be a star, if not a moon, in the path they choose for themselves. There is nothing wrong in being ambitious. But being overambitious is fatal. It makes one’s motive questionable, their sincerity a subject of doubt. It makes one desperate, pushing them to do just everything, no matter how unreasonable and foolish, provided it would give them the cheap popularity and a sense of relevance they so much desire, and inordinately so.
Nigeria is a conglomeration of characters. Some have their roles determined for them by fate, by the circumstances of their evolution. They did not create scenes where there ought to be none just for them to satisfy their ego by featuring in. They are the products of their time, not vice-versa. Some other characters are the complete opposite of these. They seek to impose themselves even where the situation on ground could not support that imposition. Such characters are oblivious of one of the cardinal principles of history: history chooses its own characters for itself. There cannot be, for instance, another Zik because there would not be another politics of decolonization; there cannot be another Mandela because apartheid could never make a return; we cannot have another Aminu Kano because the era of Native Authorities and powerful emirs has completely died out. The circumstances of these characters made them become what they became. It could hardly be said to be their own choosing.
There was no dearth of lawyers in the pre-independence Nigeria. The first Nigerian lawyer, Alexander Sapara Williams, was given the wig in 1898. Rotimi Williams, Timi the Law, was called to the bar in 1945. His own father and uncle, unless my memory fails me, were lawyers. Yet we did not notice the presence or impact of lawyers in the Nationalist Movements. But that does not mean no lawyer participated. There are a few that did, not in their capacity as lawyers, though, but as individuals concerned with the affairs of their emerging state. The explanation for this is simple. The lawyers, truly learned as they were, understood that political problems need nothing but political solutions. It would be incongruous and futile to try anything else. They therefore left politics to the politicians. I’imalu ala makanikum inniy aamil.
Then came the era of military rule. The first thing the jackboots did was banning any elements of democracy and civil liberty. Political parties, programs and activities were all banned. The only door left open for challenging the powers that be was the courts, the only democratic institution that could not be directly and completely eliminated even by the monstrous military.
It is this era that gave rise to the emergence of the so-called ‘human rights’ lawyers, the most prominent of whom is Gani Fawehinmi. Such lawyers did what was demanded of them by their circumstance and time. Their ‘activism’ was countered by the notorious and obnoxious ouster clauses. They suffered untold hardship. They were persecuted. They were imprisoned, without trial in most cases. They answered the call of their time and believed in what they were doing. They are not spotless, however.
The reactionary regimes of Buhari, Babangida and Abacha saw to the emergence of more ‘human rights’ lawyers. The Falanas, the Agbakobas, the Shehu Sanis, made their debuts around this time. The era equally gave rise to the proliferation of ‘human rights organizations’ like the Civil Liberties Organization, the Network for Justice, Constitutional Rights Project, Civil Rights Congress, to mention a few.
With the return of civilian rule at the dawn of the present century, most of the constraints and restraints brought about by military rule, especially in the political and legal realms, were done away with by the new constitution. Section 4 of the constitution, for instance, outlaws ouster clauses. All that is required now is democratic consolidation. For every political problem a relevant and suitable political solution is shopped.
The ‘human rights’ lawyers found themselves in a sort of a dilemma. The whole of their active life was spent under the military. They got habituated to rushing to court over everything they felt dissatisfied with. Old habits, they say, die hard. And sabo turken wawa. The activists want to remain relevant, among the performers on the stage. But the new situation does not, so to speak, favor that. A few of them tried the old tricks. It failed. Those of them that are still alive are suspected of having changed. But change they did not. It is the time that changed. Even the indomitable Gani had his landmarks, all of them, under the military. He could not have attained them in a civilian setting. I will give an instance.
At the height of the Zamfara State-initiated Sharia Implementation debacle, Olisa Agbakoba (SAN), one of the frontline human rights and civil society activists, and a one-time President of the Nigerian Bar Association, rushed to the Zamfara State High Court inviting the court to determine the constitutionality or otherwise, vis-à-vis section 10 of the 1999 Constitution, of what the then state governor, Ahmad Sani, set out to do.
The Zamfara State government responded by challenging Agbakoba’s right to challenge its action, his right to institute the action in the first place, what in legal parlance is called the capacity to sue, the locus standi, to use the Latin term used for it. Agbakoba is a Nigerian and a lawyer. But that does not entitle him to meddle in the affairs of Zamfara State. He is not a Muslim and cannot therefore complain about what is specifically and exclusively for Muslims. And even if he happens to be a Bazamfare and Muslim, the logic of the law says he must convince the court that he has an interest over and above other Zamfarawa.
Bola Ige, the then Attorney-General of the Federation, was a lawyer-politician, indeed more of the latter than the former. He therefore understood that the Sharia issue was more political than legal. In an interview with TheNews Magazine he told the journalists that as the AGF there was nothing he could do over the Sharia Question for while trying to challenge it, the supposed victim will chant ‘Allahu Akbar’! Obasanjo, another politician, from the very beginning dismissed the whole project as purely political: political Sharia, he called it. And so it came to pass. I am quite sure nobody in the present Muslim North will be deceived again with Sharia. It is nothing but a political gimmick, a mere ploy and play.
In a country that is enveloped in ignorance, a society that relies totally on media for everything, it is herculean to be rational. You can know things by reading newspapers or listening to radio. But the things the media can never teach you is critical thinking and analytical reasoning. Consequently, things fail to be understood the way they should be. There is misinformation all over the place. In most cases deliberate, and people consume and absorb it, thereby continue living in wilderness and obfuscation.
The Nigerian mass media has always been problematic. It misinforms, miseducates and misleads. It triggers up violence in some instances, fans the ember of primordial sentiments in others. It emphasizes rights without duties, power without responsibility. Virtually every Nigerian will now boast of having some rights under the constitution but when you ask them what corresponding duties they owe to the country, chances are you will get no response.
The constitution is not a document for the insane. It has antecedents and context. That is what explains why it is produced by not only lawyers but experts from other fields: economics, sociology, history, anthropology and so on. The media, however, gives people the impression that it is just a book like any other. You can just pick it up, flip through it and you can then authoritatively talk about it. From what one will hear on the streets, one will begin to think that the constitution is all about those rights. Few people know that these so-called belong to different cadres. Some are for everyone while others are for citizens only. A few are absolute while the rest are qualified, subject to various restrictions and limitations.
People do not care to know that it is not for nothing that the constitution speaks of citizenship, indigenship and residenceship. To each of these categories are specific rights and duties. Only a Nigerian citizen by birth, for instance, can contest for the post of president or a governor of a state. The president is required to appoint at least one minister from each state of the federation and such an appointee must be an ‘indigene’ of such state.
The Constitution is not a for-lawyers-only document. Other experts have a stake in it. The upstart lawyers think that the scanty stuff they were taught in university is enough to make them ‘Constitutional Lawyers’. Nothing can be more simplistic and ridiculous. There is a need of having some knowledge of political history and culture. In fact, there is an unending debate within the jurisprudential circle as to whether a constitution is a legal or political document. Yours sincerely is inclined to the view that it is the latter. But that point is esoteric.
Constitutionalism is a dynamic concept. And students of Comparative Constitutional Law are aware of the fact that some provisions of the constitution become obsolete with time, some prove to be problematic when it comes to the issue of implementation.
One such problematic provision in the Nigerian Constitution is section 271, particularly subsections 4 and 5. The section deals with the appointment of Chief Judge, Judges of State High Court as well as the appointment of an Ag. Chief Judge in the event of a vacancy in that office. The stages of effecting the appointment is a recommendation from the National Judicial Council and appointment by the governor acting on that recommendation. There is an additional stage in the case of Chief Judge: the appointee has to be confirmed by the State House of Assembly.
The problems associated with this provision are many. Most prominent is the position of the NJC’s recommendation. Does the governor have to follow and act on the recommendation of the NJC? If he has to then it is no longer a recommendation but an obligation or a command. And does the House of Assembly have to confirm such an appointment? If it has to, what the hell then is the meaning of democracy? What happens to the principle of separation of powers? If the recommendation handed down by the NJC cannot be deviated from or disregarded, it then ipso facto becomes the sole appointing authority, and the governor and the assembly, elected directly by the people, become less than a rubber stamp.
The reality of the situation is that the appointment of judges, the Chief Judge especially, is a political problem, not a legal one. The House of Assembly has no power to query a governor over the non-appointment of a judge or a chief judge. For the legislators to do so will amount to their going beyond the power conferred upon them by the constitution that brought them into existence. It is at variance with the principle of checks and balances. But once the governor decides to make the appointment, he then has to follow the due process of law, and the legislature will be free to confirm or reject the appointment. The issue is as intricate as it is interesting and funny. Time and space will not permit me to delve into some of those intricacies.
‘Da muguwar rawa’, a Hausa proverb says, ‘gwara kin tashi’. Lawyers are aware of all these, and that is why they do not normally make an issue out of it. We are aware of what will be the end-result. But people differ. Some want to do things to play to the gallery, to impress those that are not in the system and do not therefore know how it works.
In March 2000, the then Chief Judge of Kano State, Honorable Justice Saleh Minjibir retired from service. Honorable Justice Saka Yusuf was appointed as the Ag. Chief Judge. Early 2001, a certain Ado Mallam Bello instituted an action before the Kano State High Court asking the court to compel the governor of Kano State to appoint a substantive Chief Judge. The case number is K/111/2001, and was reported in the Law Report of Northern Nigeria (2002). Ado Mallam Bello is legal practitioner, an indigene of Kano State from Dumbulun, Tsanyawa Local Government. He is now a Senior Lecturer at the Faculty of Law, Bayero University, Kano.
Just like it happened in the case of Agbakoba with the Zamfara State Government, the right of A. M. Bello to institute that action was questioned. The Court agreed that he had no business challenging the non-appointment of a substantive Chief Judge for it did not harm him in any way, nor did it harm anyone else for that matter, as all that a substantive CJ can do, an Acting One can equally do it. There does exist no vacuum. The Court, per Aboki J. (as he then was) let him go home with the following:
‘Section 6(6)(b) of the Constitution of Nigeria does not manufacture locus standi or standing on a plaintiff who in law has none. The section does not clothe locus standi on every Nigerian to institute all types of actions against persons, government or authority because the preamble to the constitution says: WE THE PEOPLE of Nigeria make, enact and give to themselves (sic) the constitution containing the provisions of section 6(6)(b).
‘The said section 6(6)(b) does not permit BUSYBODIES to parade the corridors of the courts instigating litigations here and there with a view to instituting an action because it is convenient to do so for fun or in order to boost the ego of a gluttonous litigant.
[Being] a Nigerian, an indigene of Kano State and a legal practitioner in Kano are not attributes peculiar to the plaintiff alone so much so that the absence of an incumbent (sic) Chief Judge of Kano threatens his legal rights adversely.’
I do not know so much law because I am more interested in justice. But certain things are so elementary and basic. The issues discussed in that case are among those basic things. And a lawyer that does not know them can well be called a dickhead. It is not an insult. It is a description. And if such a lawyer is aware of all these but goes ahead with histrionics in the media, then it logically follows public attention is all that is sought. Or, worse still, it is a sponsored project.
I will next talk about the issue of giving ultimatum to the governor and/or the State House of Assembly. But before I do that, I would like people to read section 188 of the Constitution. It will reveal a lot.
Nigeria is a conglomeration of characters. Some have their roles determined for them by fate, by the circumstances of their evolution. They did not create scenes where there ought to be none just for them to satisfy their ego by featuring in. They are the products of their time, not vice-versa. Some other characters are the complete opposite of these. They seek to impose themselves even where the situation on ground could not support that imposition. Such characters are oblivious of one of the cardinal principles of history: history chooses its own characters for itself. There cannot be, for instance, another Zik because there would not be another politics of decolonization; there cannot be another Mandela because apartheid could never make a return; we cannot have another Aminu Kano because the era of Native Authorities and powerful emirs has completely died out. The circumstances of these characters made them become what they became. It could hardly be said to be their own choosing.
There was no dearth of lawyers in the pre-independence Nigeria. The first Nigerian lawyer, Alexander Sapara Williams, was given the wig in 1898. Rotimi Williams, Timi the Law, was called to the bar in 1945. His own father and uncle, unless my memory fails me, were lawyers. Yet we did not notice the presence or impact of lawyers in the Nationalist Movements. But that does not mean no lawyer participated. There are a few that did, not in their capacity as lawyers, though, but as individuals concerned with the affairs of their emerging state. The explanation for this is simple. The lawyers, truly learned as they were, understood that political problems need nothing but political solutions. It would be incongruous and futile to try anything else. They therefore left politics to the politicians. I’imalu ala makanikum inniy aamil.
Then came the era of military rule. The first thing the jackboots did was banning any elements of democracy and civil liberty. Political parties, programs and activities were all banned. The only door left open for challenging the powers that be was the courts, the only democratic institution that could not be directly and completely eliminated even by the monstrous military.
It is this era that gave rise to the emergence of the so-called ‘human rights’ lawyers, the most prominent of whom is Gani Fawehinmi. Such lawyers did what was demanded of them by their circumstance and time. Their ‘activism’ was countered by the notorious and obnoxious ouster clauses. They suffered untold hardship. They were persecuted. They were imprisoned, without trial in most cases. They answered the call of their time and believed in what they were doing. They are not spotless, however.
The reactionary regimes of Buhari, Babangida and Abacha saw to the emergence of more ‘human rights’ lawyers. The Falanas, the Agbakobas, the Shehu Sanis, made their debuts around this time. The era equally gave rise to the proliferation of ‘human rights organizations’ like the Civil Liberties Organization, the Network for Justice, Constitutional Rights Project, Civil Rights Congress, to mention a few.
With the return of civilian rule at the dawn of the present century, most of the constraints and restraints brought about by military rule, especially in the political and legal realms, were done away with by the new constitution. Section 4 of the constitution, for instance, outlaws ouster clauses. All that is required now is democratic consolidation. For every political problem a relevant and suitable political solution is shopped.
The ‘human rights’ lawyers found themselves in a sort of a dilemma. The whole of their active life was spent under the military. They got habituated to rushing to court over everything they felt dissatisfied with. Old habits, they say, die hard. And sabo turken wawa. The activists want to remain relevant, among the performers on the stage. But the new situation does not, so to speak, favor that. A few of them tried the old tricks. It failed. Those of them that are still alive are suspected of having changed. But change they did not. It is the time that changed. Even the indomitable Gani had his landmarks, all of them, under the military. He could not have attained them in a civilian setting. I will give an instance.
At the height of the Zamfara State-initiated Sharia Implementation debacle, Olisa Agbakoba (SAN), one of the frontline human rights and civil society activists, and a one-time President of the Nigerian Bar Association, rushed to the Zamfara State High Court inviting the court to determine the constitutionality or otherwise, vis-à-vis section 10 of the 1999 Constitution, of what the then state governor, Ahmad Sani, set out to do.
The Zamfara State government responded by challenging Agbakoba’s right to challenge its action, his right to institute the action in the first place, what in legal parlance is called the capacity to sue, the locus standi, to use the Latin term used for it. Agbakoba is a Nigerian and a lawyer. But that does not entitle him to meddle in the affairs of Zamfara State. He is not a Muslim and cannot therefore complain about what is specifically and exclusively for Muslims. And even if he happens to be a Bazamfare and Muslim, the logic of the law says he must convince the court that he has an interest over and above other Zamfarawa.
Bola Ige, the then Attorney-General of the Federation, was a lawyer-politician, indeed more of the latter than the former. He therefore understood that the Sharia issue was more political than legal. In an interview with TheNews Magazine he told the journalists that as the AGF there was nothing he could do over the Sharia Question for while trying to challenge it, the supposed victim will chant ‘Allahu Akbar’! Obasanjo, another politician, from the very beginning dismissed the whole project as purely political: political Sharia, he called it. And so it came to pass. I am quite sure nobody in the present Muslim North will be deceived again with Sharia. It is nothing but a political gimmick, a mere ploy and play.
In a country that is enveloped in ignorance, a society that relies totally on media for everything, it is herculean to be rational. You can know things by reading newspapers or listening to radio. But the things the media can never teach you is critical thinking and analytical reasoning. Consequently, things fail to be understood the way they should be. There is misinformation all over the place. In most cases deliberate, and people consume and absorb it, thereby continue living in wilderness and obfuscation.
The Nigerian mass media has always been problematic. It misinforms, miseducates and misleads. It triggers up violence in some instances, fans the ember of primordial sentiments in others. It emphasizes rights without duties, power without responsibility. Virtually every Nigerian will now boast of having some rights under the constitution but when you ask them what corresponding duties they owe to the country, chances are you will get no response.
The constitution is not a document for the insane. It has antecedents and context. That is what explains why it is produced by not only lawyers but experts from other fields: economics, sociology, history, anthropology and so on. The media, however, gives people the impression that it is just a book like any other. You can just pick it up, flip through it and you can then authoritatively talk about it. From what one will hear on the streets, one will begin to think that the constitution is all about those rights. Few people know that these so-called belong to different cadres. Some are for everyone while others are for citizens only. A few are absolute while the rest are qualified, subject to various restrictions and limitations.
People do not care to know that it is not for nothing that the constitution speaks of citizenship, indigenship and residenceship. To each of these categories are specific rights and duties. Only a Nigerian citizen by birth, for instance, can contest for the post of president or a governor of a state. The president is required to appoint at least one minister from each state of the federation and such an appointee must be an ‘indigene’ of such state.
The Constitution is not a for-lawyers-only document. Other experts have a stake in it. The upstart lawyers think that the scanty stuff they were taught in university is enough to make them ‘Constitutional Lawyers’. Nothing can be more simplistic and ridiculous. There is a need of having some knowledge of political history and culture. In fact, there is an unending debate within the jurisprudential circle as to whether a constitution is a legal or political document. Yours sincerely is inclined to the view that it is the latter. But that point is esoteric.
Constitutionalism is a dynamic concept. And students of Comparative Constitutional Law are aware of the fact that some provisions of the constitution become obsolete with time, some prove to be problematic when it comes to the issue of implementation.
One such problematic provision in the Nigerian Constitution is section 271, particularly subsections 4 and 5. The section deals with the appointment of Chief Judge, Judges of State High Court as well as the appointment of an Ag. Chief Judge in the event of a vacancy in that office. The stages of effecting the appointment is a recommendation from the National Judicial Council and appointment by the governor acting on that recommendation. There is an additional stage in the case of Chief Judge: the appointee has to be confirmed by the State House of Assembly.
The problems associated with this provision are many. Most prominent is the position of the NJC’s recommendation. Does the governor have to follow and act on the recommendation of the NJC? If he has to then it is no longer a recommendation but an obligation or a command. And does the House of Assembly have to confirm such an appointment? If it has to, what the hell then is the meaning of democracy? What happens to the principle of separation of powers? If the recommendation handed down by the NJC cannot be deviated from or disregarded, it then ipso facto becomes the sole appointing authority, and the governor and the assembly, elected directly by the people, become less than a rubber stamp.
The reality of the situation is that the appointment of judges, the Chief Judge especially, is a political problem, not a legal one. The House of Assembly has no power to query a governor over the non-appointment of a judge or a chief judge. For the legislators to do so will amount to their going beyond the power conferred upon them by the constitution that brought them into existence. It is at variance with the principle of checks and balances. But once the governor decides to make the appointment, he then has to follow the due process of law, and the legislature will be free to confirm or reject the appointment. The issue is as intricate as it is interesting and funny. Time and space will not permit me to delve into some of those intricacies.
‘Da muguwar rawa’, a Hausa proverb says, ‘gwara kin tashi’. Lawyers are aware of all these, and that is why they do not normally make an issue out of it. We are aware of what will be the end-result. But people differ. Some want to do things to play to the gallery, to impress those that are not in the system and do not therefore know how it works.
In March 2000, the then Chief Judge of Kano State, Honorable Justice Saleh Minjibir retired from service. Honorable Justice Saka Yusuf was appointed as the Ag. Chief Judge. Early 2001, a certain Ado Mallam Bello instituted an action before the Kano State High Court asking the court to compel the governor of Kano State to appoint a substantive Chief Judge. The case number is K/111/2001, and was reported in the Law Report of Northern Nigeria (2002). Ado Mallam Bello is legal practitioner, an indigene of Kano State from Dumbulun, Tsanyawa Local Government. He is now a Senior Lecturer at the Faculty of Law, Bayero University, Kano.
Just like it happened in the case of Agbakoba with the Zamfara State Government, the right of A. M. Bello to institute that action was questioned. The Court agreed that he had no business challenging the non-appointment of a substantive Chief Judge for it did not harm him in any way, nor did it harm anyone else for that matter, as all that a substantive CJ can do, an Acting One can equally do it. There does exist no vacuum. The Court, per Aboki J. (as he then was) let him go home with the following:
‘Section 6(6)(b) of the Constitution of Nigeria does not manufacture locus standi or standing on a plaintiff who in law has none. The section does not clothe locus standi on every Nigerian to institute all types of actions against persons, government or authority because the preamble to the constitution says: WE THE PEOPLE of Nigeria make, enact and give to themselves (sic) the constitution containing the provisions of section 6(6)(b).
‘The said section 6(6)(b) does not permit BUSYBODIES to parade the corridors of the courts instigating litigations here and there with a view to instituting an action because it is convenient to do so for fun or in order to boost the ego of a gluttonous litigant.
[Being] a Nigerian, an indigene of Kano State and a legal practitioner in Kano are not attributes peculiar to the plaintiff alone so much so that the absence of an incumbent (sic) Chief Judge of Kano threatens his legal rights adversely.’
I do not know so much law because I am more interested in justice. But certain things are so elementary and basic. The issues discussed in that case are among those basic things. And a lawyer that does not know them can well be called a dickhead. It is not an insult. It is a description. And if such a lawyer is aware of all these but goes ahead with histrionics in the media, then it logically follows public attention is all that is sought. Or, worse still, it is a sponsored project.
I will next talk about the issue of giving ultimatum to the governor and/or the State House of Assembly. But before I do that, I would like people to read section 188 of the Constitution. It will reveal a lot.
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