We Need to Mobilize for Good Governance, By Femi Falana, SAN

Date:

(Keynote address by Femi Falana, Senior Advocate of Nigeria, during the public presentation of Dis Life No Balance, held at Abuja on Thursday, 14 December 2023))

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Ladies and Gentlemen.

It gives me great pleasure to be invited to give the keynote address on the occasion of the public presentation of the book entitled Dis Life No Balance: An Anthology of Nigerian Diaspora Voices by three writers. After I had accepted the invitation to deliver this keynote address, a senior lawyer advised me to stop fraternizing with Professor Kperogi and his friends for attacking the highest court in the land.

Indeed, not a few in high places see Farooq Kperogi, Professor of Journalism and Emerging Media at Kennesaw State University, Georgia, USA, as a troubler of Israel on account of his newspaper articles! I salute the courage of Ochonu, a Professor of African History at Vanderbilt University, Nashville, Tennessee, USA. The ability of Agbo to multi-task is legendary. He is a newspaper columnist, medical doctor and social justice advocate based in Houston, Texas, USA.

It is not surprising that the triumvirate chose Professor Toyin Falola, a professor of History, of the University of Texas at Austin who has married the town with the gown to write the Foreword to Dis Life No Balance. Indeed, in The Chat: A Conversation by the authors, they address the issues of japa phenomenon, restructuring of Nigeria, and what system of government suits our country, American Presidential system or the Parliamentary-Westminster type? In congratulating the authors, I note that they have not put themselves on a pedestal of analytical finality. As far as they are concerned, the views and arguments articulated in these essays “are necessarily tentative, provisional and self-critical.”

I salute the courage, patriotism and intellectual prowess of the writers who put together Dis Country No Balance. I welcome their intervention. I know they should appreciate what people are going through at home. In the Western world where they live, it is possible to put pressure on government on certain issues by collecting signatures all over. However, in Nigeria or some other African countries, you collect signatures as an academic exercise! Here, the language the oppressors understand is to organize and mobilize for civil action.

Our people in the Diaspora are encouraged to make contributions by drawing attention to the plight of Nigerians at home. However, nothing can change Nigeria unless people of progressive ideas are prepared to unite and organize the people for genuine change.

Ladies and Gentlemen, things are hard in Nigeria right now. People find it difficult to feed. Prices of food have gone up to the stratosphere. Those in government do not seem to care in the way they live ostentatiously. As of April 2023, N655 billion was distributed by the Federal Government to the three tiers of government. After the removal of subsidy, the figure jumped to N1 trillion monthly. But the people have generally been ignored inside their cocoon of poverty.

In November 2022, the National Bureau of Statistics (NBS) released a report to the effect that 130 million were “multidimensional poor”. The figure has since increased phenomenally since fuel subsidy was removed by the Tinubu administration. In the North, South, East and West, the masses are groaning. Unemployment is compounded by the sad news that some companies are pulling out of Nigeria.

This is going on despite the frequent trips of the President abroad seeking investments. A few weeks ago, the Senate President, Godswill Akpabio, advised President Bola Tinubu to restrict Ministers and Heads of Ministries Departments and Agencies of the Federal Government from travelling outside the country during the period of budget defence. Having regards to the parlous state of the economy, the demand should be extended beyond budget presentation and should include all public officers including legislators.

This takes me to the issue of ASUU and strikes and what Ochonu writes about it on page 70: ASUU strikes “have become counterproductive in several ways. The government usually waits them out until fatigue (and hunger) sets in and ASUU is desperate for a deal…ASUU leaders are not victims to be pitied. They are willing participants in a predictable theatre…”

We must admit that ASUU members have not been embarking on strikes just for fun! In other words, their strike is not an end in itself but a means to an end. The issues they raised were (and still are) legitimate. This is because government has abandoned tertiary institutions over the years, a state of affairs that made many academics to “japa”, looking for where the grass is greener. I know that if conditions at home were better, the writers of Dis Life No Balance would not have relocated.

The main curse of the perennial strike is that the federal Government entered into agreements with ASUU in 2009 and 2013 to inject a total of N1.3 trillion for the revitalization of public universities in six tranches, starting from 2013. But only N200 billion has been released since 2013. In 1992, the Education Tax Fund was established at the instance of ASUU. Today, all capital projects in public tertiary institutions are funded from TETFUND. The writers should be reminded that TETFUND is a product of the industrial action embarked upon by ASUU in 1992.

I, therefore, wish to join issues with them in proffering solutions to the problems of our country. Even though I will not attempt to usurp the job of the reviewer by going into details of the themes and sub-themes, I will take the liberty of a keynote speaker to talk on some salient burning issues in our country including the post of the Minister of Petroleum Resources, right to criticize decisions of courts, Failure of NNPCL to remit $35.3 billion collected from NLNG to Federation Account and refusal of federal government to recover of $62 billion from IOCs.

President Tinubu is not the Minister of Petroleum Resources

A former Governor of the Central Bank of Nigeria, Sanusi Lamido Sanusi, has advised President Bola Tinubu against occupying the office of the Minister for Petroleum Resources, saying such arrangement will make it difficult for the country to hold the Nigerian National Petroleum Corporation Limited accountable. According to him, “The exchange rate needs to be stabilised and we have to address the fundamental question, why is there no money coming in? Why is the NNPCL not able to bring in dollars? … Where are the dollars? We need to shine a light on the NNPCL. The finance minister cannot tell you because he doesn’t have a monitoring system that reports to him. The finance minister can’t tell you how many barrels of petrol we produce and export. It is only the NNPCL that can give those figures.”

In August, President Bola Tinubu split the Ministry of Petroleum Resources with the appointment of Ekperipe Ekpo as Minister of State, Gas Resources; and Heineken Lokpobiri as Minister of State, Petroleum Resources. So, President Bola Tinubu is not the Minister of Petroleum Resources as his nomination was never forwarded to the Senate for screening as mandatorily required by section 147 of the Constitution. Therefore, the President should not appoint himself as Petroleum Minister like former Presidents Olusegun Obasanjo and Muhammadu Buhari. However, I must point out that NNPCL is now a limited liability company while the President is empowered to appoint the members of the NNPCL Board under the Petroleum Industrial Act.

Failure of NNPCL to remit $35.3 billion collected from NLNG to Federation Account

On April 27, 2019, the Senate Committee on Public Accounts held a public hearing on revenue generation drive for the 2021-2023 Medium Term Expenditure Framework and Fiscal Strategy Paper (MTEF/FSP). During the hearing, the NLNG General Manager, External Relations and Sustainable Development, Mrs. Eyono Fatai-Williams, disclosed that from 1999 to 2019 the company paid dividends of over $18 billion to Nigeria through the NNPCL from 2004 to 2020. She also revealed that the NLNG paid $9 billion tax to the federal government from 2011 to date while $15 billion had also been remitted for feed gas to the NNPC since the inception of the company.

Based on the disclosure, the Senate Committee on Public Accounts asked the suspended Accountant-General of the Federation, Mr. Ahmed Idris who was in attendance, to confirm if the said sum of $33 billion was actually remitted to the Nigeria National Petroleum Corporation Limited that represents the interest of Nigeria in the NLNG. Mr. Idris said that the funds paid by the NLNG were not remitted to the Federation Account but warehoused by the NNPCL.

Consequently, the Public Accounts Committee of the Senate directed the Accountant-General to determine how much was actually remitted to the Federation Account, and if there was any deduction by NNPC; how much was deducted and who authorized the deductions and the exchange rates applied for the amount that was remitted over the years under review.

It may interest this distinguished audience to note that in 2020, 2021 and 2022, the NNPCL equally received the sums of $545.13m, $722.44m and $1.10 billion respectively as dividends from the NLNG. The total sum for the three years is $2.267 billion. From the information at our disposal, the said sum of $2.267 billion was not remitted to the Federation Account by the NNPCL. Therefore, the NNPCL is withholding a total sum of $35.3 billion from the Federation Account.

Refusal of federal government to recover of $62 billion from IOCs

Under the now repealed Deep Offshore and Inland Basin Production Sharing Contracts Act (the Act), IOCs were mandated to pay royalties to the Federal Government of Nigeria. Collection of these funds from the IOCs was not executed to the letter giving rise to an action at the Supreme Court by the Governments of Rivers, Akwa Ibom and Bayelsa States seeking to compel the Federal Government to collect all outstanding royalties under the Act. The Federal Government of Nigeria was by the decision of the Apex Court delivered in October 2018 ordered to collect the royalties for the past Eighteen (18) years.

Further to the judgment, an audit firm was appointed by the Federal Government of Nigeria to calculate the outstanding royalties. The result of this task showed that a whooping sum of $62 Billion was outstanding as royalties payable to the Federal Government by these IOCs. We are also aware that a request was made to the defaulting IOCs by the Federal Government to pay the outstanding royalties was ignored.

Right to criticize decisions of courts

From time to time, the Justices of the Supreme Court subject the judgments of their brethren to harsh criticism which are expressed in dissenting opinions. For instance, in Abacha v The State, Olufemi Ejiwunmi J.S.C. was peeved that his colleagues decided to discharge the appellant in spite of what his Lordship regarded as the overwhelming evidence of his involvement in the brutal murder of the Late Mrs Kudirat Abiola. In a critical dissenting opinion, his Lordship referred to the judgments of his colleagues as “the tyranny of the majority.”

The Honourable Justice Cletus Nweze who passed on a few months ago never hesitated to write dissenting judgments whenever he feels that the decision of the Supreme Court could not be justified on legal grounds. Occasionally, his Lordship does so with some caustic words for his learned brethren in the Court. For instance, in the controversial case of Uzodinma v Ihediora, Nweze predicted that the majority judgment would hunt the Supreme Court for several year to come. Truly, the judgment has been haunting the Court since then and may continue until the judgment is revisited in future.

In the same vein, in Oghenovo & Anor v Governor of Delta State & Anor (2022) LPELR-48062(SC) the Supreme Court Court dismissed the appeal for want of locus standi. Convinced that the majority judgment was wrong the Honourable Justice Nweze delivered a dissenting judgment where he held that: “It would, in my view, be a grave lacuna in our system of public law, if a pressure group, like the federation, or even a single public-spirited tax payer, were prevented by outdated technical rules of locus standi, from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped.

Incidentally, the leading judgment in the case of APC v Machina was read by the Honourable Justice Nweze. No doubt, the judgment was anchored on technicalities as the appeal succeeded on the ground that the respondent ought to have commenced the pre-election case by filing a writ of summons instead of originating summons. Out of the 5-member panel of the Court, Agim and Jauro JJSC vehemently disagreed with the majority judgment on solid legal grounds that are devoid of sentiment. In particular, the Honourable Justice Jauro stated that he had painstakingly read the affidavit in support of the originating summons and cannot identify any reference to crime to warrant the filing of a writ of summons in the case.

It is submitted that the right to criticize the decisions of courts in a democratic society is part of the fundamental right to freedom of expression guaranteed by section 39 of the Nigerian Constitution and article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria, 2004. It has been observed that. In a democracy, the three arms of government and all institutions including the courts are necessarily the subject of criticism. No public institution maintained with public fund is excepted from criticism scrutiny.

It is submitted while the general right to criticize decisions of courts is not disputed, lawyers and members of the public are not permitted to scandalise Judges or accuse them of corruption or misconduct without proof. In reacting to the controversial judgment of the court in Machina’s case, Kperoggi referred to the justices of the Supreme Court as “shameless judicial bandits.” With respect, Professor Kperoggi ought not to have engaged in such vulgar abuse in criticizing the judgment of apex court.

It is however pertinent to note that the media may report proceedings of a court, provided that the report is accurate. To preserve the integrity of court, section 133 of the Criminal Code provides that: “any person, who while a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceeding, or capable of prejudicing any person in favour of or against any party to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being heard or taken; or commits any other act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken, is guilty of a simple offence and liable to imprisonment for three months”

Rule 33 of the Rules of Professional Conduct for Legal Practitioners, 2007 stipulates that: “a lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter, or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any extra-judicial statement that is calculated to prejudice or interfere with, or is reasonably capable to prejudicing or interfering with, the fair trial of the matter, of the judgment or sentence thereon”.

The right to criticize the Supreme Court and to question the finality of its decisions on political problems cannot be questioned in view of its preeminent role in the resolution of political, economic and social problems plaguing the society. Therefore, judges of the apex court should take solace in the case of ADEGOKE MOTORS LTD v. DR. BABATUNDE ADESANYA & ANOR (1989) 3 NWLR (Pt 109) 250 at 274; (1989) 5 S.C 113 at 129 where Oputa JSC who read the leading judgment, while adopting the statement of Justice Jackson of the United States Supreme Court, said, “We are final not because we are infallible; rather we are infallible because we are final”.

It is pertinent to note that the Justices of the Supreme Court have continued to welcome criticism of their judgments. Two years ago, while speaking in Abuja on the occasion of the 40th anniversary of his call-to-bar along with some Justices of the Supreme Court, Court of Appeal, Judges in other courts and senior lawyers in the country, the immediate past Chief Justice of Nigeria, Justice Ibrahim Tanko Muhammad said, “As critical stakeholders in the task of justice delivery, you have the responsibility of drawing our attention to where things are going wrong or on the verge of going wrong.”

Justice Muhammad was emphatic when he said that It would not be out of place for lawyers to subject Justices in the country to criticism where necessary as a step to ensuring improvement in the justice delivery system. Justice Mohammad however said that such criticism must be offered in good faith and objectivity that will propel judicial officers on the bench to enhanced performance. I concur with the retired Chief Justice.

Liberal democracy or afro democracy?

Another issue treated in this book is the type of government that fits Nigeria. Let me extend this debate further by reviewing the call by former President Olusegun Obasanjo that Africans should abandon liberal democracy and adopt Afro Democracy. He has opined that the Western liberal democracy has not worked because it was “forced” on the continent and does not take into account the view of the majority of the people.

I make bold to say that Nigeria has never practiced Liberal Democracy which is a democratic system of government in which individual rights and freedoms are officially recognized and protected, and the exercise of political power is limited by the rule of law. What we have been practicing is Afro Democracy that allows a President to behave like a traditional ruler, who is the leader of a political party, imposes candidates on the electorate, disobeys court order, turns an election to a “do or die affair”, turns anti-graft and security agencies to tools of selective prosecution.

An Afro Democrat is a leader who manipulates the Constitution in order to transmogrify into a life President. He is a leader who sells the nation’s assets to himself and his cronies, a leader who heads the oil ministry and diverts public fund from the Federation Account, a leader whose contempt for the rule of law.

It is submitted that the concept of African democracy is neither new nor original. There was a huge debate about it in the 1970s and 1980s in Africa. In 1974, Dr. Nnamdi Azikiwe suggested a diarchy to replace liberal democracy while the Kutu Acheampong military junta attempted to impose union government (uni gov) which would make Ghana a non-party state. In a rigged referendum, over 60 per cent of the voting population supported the uni gov in 1978. The concept was developed to justify authoritarian rule and wanton corruption by generals and civilian despots. Some misguided intellectuals supported the concept before it was defeated.

African dictators had insisted that they should be judged by the standard of the West because of the peculiarities of African countries. In West Africa, Ghana attempted to experiment with uni government or diarchy under the pretext that the liberal democracy was alien to the African environment. In 2015, Gardner Thompson, who had taught in Uganda as a history teacher, published a 446-page book on it entitled AFRICAN DEMOCRACY: Its Origins and Development in Uganda, Kenya and Tanzania.

It is submitted that the campaign for African democracy is diversionary as Section 14 of the Constitution provides that the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice while the participation by the people in their government shall be ensured as sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority. Furthermore, the security and welfare of the people shall be the primary purpose of government.

But members of the ruling class have deliberately failed to observe the provisions of section 14 thereof since 1999 on the ground that it forms part of the fundamental objectives and directive principles of state policy are not justiciable. That is a misleading position as section 224 of the Constitution has imposed a legal obligation on all political parties to adopt the fundamental objectives as part of their programmes. Since all governments in Nigeria are constituted by members of political parties they are bound to implement the provisions of the fundamental objectives. However, the socio-economic rights of the Nigerian people outlined in Chapter two of the Constitution cannot be actualized by a peripheral capitalist government. I am compelled to call on the trade unions and other progressive forces to mobilize the Nigerians to fight for the socialist reconstruction of Nigeria.

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