Appraising the Role of the
Legal
Profession in Creating an Ideal Democratic Society
By Femi Falana
Monday, 22 February 2010
Introduction:
I thank the entire staff and students of the Faculty of Law, Adekunle
Ajasin University for inviting me to be the Guest Speaker at the 10th
Anniversary Lecture of the Faculty. I am indebted to the Dean,
Professor Yemi Akinseye- George for the indulgence to address this
distinguished audience on Appraising the Role of the Legal Profession
in creating an ideal Democratic Society. In view of the controversy
surrounding the resolution of the National Assembly which made the Vice
President the Acting President I intend to address the intervention of
lawyers in the resolution of the programmed constitutional confusion
that we are currently witnessing in the country.
Lawyers and the resolution of political crisis in Nigeria.
The first Nigerian lawyer, Christopher Sapara Williams was called
to the English Bar in 1886. He identified the historic role of lawyers
in a colonial environment when he said that “the lawyer lives for the
advancement of his society”. Regrettably, Nigerian lawyers of his era
concentrated on their legal practice without getting involved in the
struggle of the Nigerian people for political freedom. Even when the
Nigerian Bar Association was inaugurated in the early 1950s its
objectives did not include playing any meaningful role in defence of
the interests of the Nigerian people.
However, Chief Obafemi Awolowo and a handful of lawyers took active
part in the nationalist struggle. H.O. Davies was a member of the
defence team of lawyers who stood for the Mau Mau fighters in Kenya.
Alao Aka-Bashorun collaborated with President Kwame Nkrumah of Ghana in
the struggle for the decolonization of the African continent.
Regrettably, the Nigerian Bar Association (NBA) stood aloof when its
services were highly required in challenging gross human rights
violations under the British colonial regime. As I said elsewhere:
“In spite of the special placement of lawyers in the socio-economic
matrix the NBA distanced itself from the anti-colonial struggle of the
Nigerian people. Even when political independence came under threat in
the first republic and some of its leading members became victims of
state repression the NBA failed to speak out in defence of human
rights”
The content of the legal education in post-colonial Africa failed to
take cognizance of the law as a reflection of the society. Nkrumah was
compelled to task African lawyers to apply and interpret the law to
meet the yearning and aspirations of the African people. According to
him:
“In my view, legal education in Africa should be founded on a grasp of
the systems of law which exist in our continent to-day. It must also be
based upon a sound knowledge of progressive economic and social theory.
We must avoid the tendency to suppose that the form in which law is
administered is more important than the content of the law. Law is
conception, which is in some mysterious way universally applicable
without regard to the being to the economic and social conditions of
the country in which it is being applied. The reserve is true. The law
should be the legal expression of the political, economic and social
and condition of the people and of their aims for progress. It is the
height of absurdity to attempt to assess the legal institutions of any
country by adopting a formalistic yardstick which completely disregards
the material content of the law and measures justice or injustice
solely by procedural rules. Unfortunately such an approach too often
marks the attitude of even the most eminent lawyers towards people with
whose economic needs and social and political aims they do not see eye
to eye.”
Out of 50 years of political independence Nigeria experienced about 30
years of brutal military dictatorship. Civil rule of barely two decades
was characterized by gross abuse of office by the political class. The
democratic rights of the people were violated with impunity. A key
impediment to the consolidation of democracy has been the manipulation
of the electoral process. The rule of law has been treated with disdain
by governments which engage in executive lawlessness and disobedience
of court orders. Apart from activist lawyers who have consistently
resisted authoritarian rule the NBA has failed to put up a stiff
resistance against the subversion of the rule of law in the country.
While the NBA had a symbolic one day boycott of courts to protest the
unprecedented rigging of the 2007 General election the role of many a
senior lawyer in justifying electoral malfeasance has undermined the
democratic process. Through dilatory tactics, riggers of election have
been kept in office for 3 or 4 years. On many occasions the Supreme
Court has been requested to reverse itself without any justification in
a manner that has further exposed the law to ridicule.
Attorneys-General who are the official leaders of the bar have
terminated cases of serious criminal offence and electoral malpractice
filed against thugs and other anti-democratic forces. In particular,
the office of the Attorney-General of the Federation was until
recently, taken over by highly influential criminal suspects who are
wanted at home and abroad to answer charges of fraud, money laundering
and corruption. In the process, the legal profession became a laughing
stock among Nigerians. The failure to discipline Attorneys-General and
senior lawyers who have sabotaged the rule of law has called the
integrity of the NBA to question. However, the NBA deserves
commendation for its vigorous campaign for electoral reform,
constitutional review and defence of the rule of law in recent time.
In an oppressed society like Nigeria it is the duty of lawyers to
defend the defenceless, protect the rights of the people, guide against
all forms of oppression and inhuman treatment. The lawyer as an
individual or body of lawyers in any nation must live up to his or its
responsibilities as a dogged fighter of the oppressed, as a beacon of
light that will penetrate the darkness of the environment, as a
courageous voice of the hopeless and heartless and, perhaps, the sane
and lonely voice that will bring powers and principalities to the path
of rectitude whenever they go wrong. Notwithstanding whose ox is gored
the NBA has rightly spoken against the manipulation of the Constitution
by the Federal Government with respect to the prolonged absence of
President Yar’adua.
The President’s Health and the Subversion of the Democratic
Process.
On November 23, 2009 President Umaru Musa Yaradua was rushed out of the
country to the King Faisal Specialist Hospital in Jeddah, Saudi Arabia.
Even though the Federal Government urged Nigerians to pray for the
speedy recovery of the President, information concerning his state of
health has since been shrouded in secrecy. In the circumstances, the
President’s health has remained a subject of speculation in the local
and foreign media. Some of the dangerous rumours which have been
circulated on the matter have threatened the security and political
stability of the nation. Even when the President was in coma at the
Intensive Care Unit of the foreign medical centre the Executive Council
of the Federation declared that the President was not incapacitated to
govern the country!
In order to avert a major constitutional crisis a Group of 53 Nigerians
called on President Yaradua to resign or allow the Executive Council of
the Federation to pass a resolution to the effect that he was incapable
of discharging the functions of his office. Such a resolution, argued
the G53, would enable the Senate President to appoint a medical panel
to confirm the fitness or otherwise of the President to continue in
office pursuant to Section 144 of the Constitution.
The President ignored the call while the Peoples Democratic Party, the
Governors’ Forum and the Executive Council of the Federation condemned
the patriotic stand of the G53. Instead of complying with the extant
provisions of the Constitution Nigerians were directed by the Federal
Government to engage in prayer sessions for the speedy recovery of the
President. Meanwhile, presidential powers were hijacked by a
triumvirate of unelected persons who hijacked power and illegally ruled
the country on behalf of the President who has been held incommunicado.
However, in his January 12, 2010 interview in the BBC Hausa Service
President Yaradua thanked Nigerians for their prayers and disclosed
that his doctors were yet to determine when he would be discharged from
the hospital to return home “to resume duty”. Thus, by his own
admission the President has denied the official lie that he has been
ruling the country from his sick bed in Saudi Arabia.
When it became public knowledge that pressure was mounting on the armed
forces to stage a coup I filed an action at the Federal High Court with
a view to compelling President Yaradua to transfer power to the Vice
President in line with the provisions of the Constitution. Two other
concerned citizens and the Nigerian Bar Association equally challenged
the refusal of the President to observe the provisions of the
Constitution.
In a desperate bid to prevent the Vice President from assuming the post
of the Acting President the Attorney-General of the Federation caused a
fresh suit to be filed on the same subject matter. Barely a week later
the case was heard and determined. In granting the reliefs sought by
the Plaintiff the presiding judge, the Honourable Justice Dan Abutu,
the Chief Judge of the Federal High Court held:
“Before the Vice President can perform the functions of the President
under the Constitution as Acting President, the requirement of section
145 of the 1999 Constitution relating to transmission by the President
to the President of the Senate and the Speaker of the House of
Representatives must be complied with. As Acting President the Vice
President performs the functions of the President under the
Constitution in his own right as the Acting President. The power which
he exercises is not the power delegated to him by the President.”
The application to have my case transferred to another judge on the
ground of likelihood of bias was granted by the Chief Judge.
Nevertheless, he proceeded with the other two cases. Curiously, the
Court held that the President was not under an obligation to transmit a
written declaration to the Senate President and the Speaker of the
House of Representatives. However, the Court later realized the
absurdity of such interpretation when it turned round to hold that
there is no provision for offshore presidency in the Constitution.
As the constitutional crisis was not resolved by the Court the Save
Nigerian Group staged protests at Abuja, Lagos, London and New York.
These events led to the renewal of pressures on the Executive Council
of the Federation and the National Assembly to address the crisis of
power vacuum in the presidency. While the federal cabinet continued to
insist that the President was not incapacitated it was confirmed that
he was on life support machine. In a bid to divert the attention of
Nigerians the National Assembly embarked on a voyage of discovery. The
Senate summoned the Secretary to the Government of the
Federation,
Alhaji Yayale Ahmed for briefing on the state of the President’s
health. On its own part the House of Representatives passed a
resolution to constitute a panel of 6 members to visit the President in
Saudi Arabia. Since neither Alhaji Yayale Ahmed not the visitation team
of legislators could speak authoritatively on the president’s health
why did the National Assembly not ask for a medical report prepared by
the President’s physician?
On the interpretation of Section 145 of the Constitution.
In order to have a grasp of the constitutional crisis occasioned by the
prolonged absence of the President it is pertinent to call attention to
Section 145 of the Constitution which states:
“Whenever the President transmits to the President of the Senate and
the Speaker of the House of Representatives a written declaration that
he is proceeding on vacation or that he is otherwise unable to
discharge the functions of his office, until he transmits to them a
written declaration to the contrary, such functions shall be discharged
by the Vice President as Acting President”.
In total disregard of the provisions of Sections 145 and 190 of the
Constitution President Obasanjo and the governors who were in office
from 1999 – 2007 did not transmit written declarations to the leaders
of the various legislative houses whenever they were proceeding on
vacation or unable to discharge the functions of their respective
offices. Hence, when President Yaradua disappeared from the country for
17 days in September 2008the National Assembly did not protest such
brazen violation of the Constitution. Not only was the President not
called to order the Deputy Senate President was recently quoted as
saying that President Yaradua could be on medical vacation for a year
or more!
From the foregoing you will agree with me that Section 145 admits of no
ambiguity. But the Federal High Court has stated that the transmission
of a written declaration to the National Assembly leaders is at the
discretion of the President. Curiously, the Court based its position on
the power of the President to assign duties to the Vice President and
Ministers of the Government by virtue of Sections 5(1) and 148(1) of
the Constitution.
The proposition that Section 145 is discretionary suggests a vacuum in
the presidency whenever the President is on vacation or otherwise
unable to discharge the functions of his office. Assuming without
conceding that duties have been assigned to the Vice President and the
Ministers, the Court has failed to take cognizance of certain powers of
the President which can only be exercised by him directly or the Vice
President in an acting capacity.
For instance, by virtue of Section 147 of the Constitution the
President is empowered to appoint Ministers to serve in the government.
The President cannot assign that duty to the Vice President. Neither
can the President delegate to the Vice President the power of assigning
duties to the Ministers. The power to appoint the Chief Justice of
Nigeria vested in the President can also not be delegated to the Vice
President or any Minister in the Government. In the same vein, the
President who is required by section 148(2) of the Constitution to
regular meetings with the Vice President and the Ministers cannot
delegate that power to the Vice President.
It was further held that Section 5 of the Constitution does not
delineate the scope of the powers that may be assigned by the President
or the manner of such assignment. With respect, this position is
completely untenable as the executive powers vested in the President
may be exercised by him directly or through the Vice President and
Ministers or offices in the public service of the Federation subject to
the provisions of the Constitution and the provisions of any law made
by the National Assembly.
It has also been argued in some quarters that if President Obama could
govern America while on vacation in Hawaii in the United States,
President Yar’Adua is competent to administer Nigeria from his sick bed
in Saudi Arabia. As the comparison is misleading it is germane to
examine the relevant provisions of the constitutions of both Nigeria
and the United States. It is common knowledge that President Obama held
meetings and consultation with Ministers and Security Chiefs on the
attempted bombing of a North West airline bound for Detroit, USA by a
Nigerian, Umar Farouk Murtalab last December. Even though, President
Obama was on vacation, he took effective charge of the situation.
He
was able to do that because the American President is not required to
transfer power to his Vice President while on vacation by virtue of
section 3 of the 25th Amendment.
The Application of the Doctrine of Necessity
When it became clear that the President and the Executive Council of
the Federation were not prepared to comply with the provisions of
Sections 144 and 145 of the Constitution both Chambers of the National
Assembly accepted the BBC interview granted by President Yaradua on
January 12, 2010 as the transmission of a written declaration.
Accordingly, the Vice President, Dr. Goodluck Jonathan was directed to
assume the post of the Acting President. Since the action of the
National Assembly was predicated on the doctrine of necessity it has
continued to generate controversy across the broad political spectrum.
Those who criticized the action of the National Assembly have failed to
appreciate that a “written declaration” may not be in writing at all
times. In the case of Obafemi Awolowo University v. Dr. Onabanjo (1991)
5 NWLR (PT 191) 549 the appointment of the respondent as a lecturer was
subjected to a written confirmation after a probationary period of 3
years. Even though he was allowed to work for 4 months after the
probation the appellant fired him on the ground that his appointment
had not been confirmed in writing. In rejecting the position of the
Appellant the Court of Appeal presided over by Mustapha Akanbi JCA (as
he then was) held that the lecturer was deemed to have been
re-appointed and confirmed since after the probation, he was allowed to
continue working and duly paid for his service.
While it may be said that the Respondent’s employment was confirmed on
the basis of estoppel by conduct it was also established that a written
confirmation might be deduced from the circumstances of a given case.
It is therefore grossly misleading to say that the written declaration
of the President to the leadership of the National Assembly has to be
in writing even when he is said to be in coma on a life support device.
In line with the provisions of Section 148, 214 and 217 of the
Constitution it is the President that is exclusively vested with the
powers to hold regular meetings with the Vice President and Minister,
give directives to the Inspector-General of Police and deploy members
of the armed forces to aid the civil authority in the maintenance of
law and order in any part of the federation.
The Vice President has presided over the weekly meetings of the
Executive Council of the Federation and received letters of credence
from foreign envoys posted to Nigeria. When religious riots broke out
in Bauchi and Plateau States last December the Vice President directed
the Inspector-General of Police and the Chief of Army Staff to restore
law and order. The order was promptly complied with and peace was
restored. Equally obeyed were the directives given to the
Inspector-General of Police to ensure that the Anambra State
gubernatorial election of February 6, 2010 was conducted without
violence. The aforesaid “illegal” directives which were carried out by
the Chief of Army Staff and the Inspector-General of Police prevented a
break down of law and order in the country. Not only were those
directives not challenged they were hailed by Nigerians. Yet they were
all justified under the doctrine of necessity.
The actions of Dr. Jonathan are not without precedent. It was common
knowledge that there was no love lost between President Obasanjo and
Vice President Atiku Abubakar. But the latter never hesitated to
exercise presidential powers whenever the former was out of the
country. Either by accident or design, President Obasanjo was outside
the country in 2004 when armed thugs with the connivance of the police
abducted Dr. Chris Ngige and removed him as the governor of Anambra
State. The Vice President ordered the Inspector-General of Police to
reinstate the embattled governor. When told that the President was
privy to the despicable conduct the Vice President made it clear to the
police chief that he was in charge of the presidency at the material
time. The governor was restored in line with the “illegal” directive of
the Vice President. If the reinstatement of the governor had been
challenged the Vice President would have rightly pleaded the doctrine
of necessity.
The doctrine of necessity has been said to be the act of making legal
what is otherwise illegal by circumstances. As far as the common law or
bourgeois jurisprudence is concerned all decrees promulgated by
revolutionary or military governments are justified by the doctrine of
necessity. The Constitution of the Federal Republic of Nigeria
(Promulgation) Decree No 24 of 1999 (otherwise called the “1999
Constitution”) is one of such laws. The rationale for the doctrine of
necessity was succinctly articulated in the case of Madzimbamuto v.
Ladihardner-Burke (1969) 1 A.C. 645 at 740 when Lord Pearce said:
“The principle of necessity or implied mandate is for the preservation
of the citizen, for keeping law and order, rebus sic stantibus
regardless of whose fault it is that the crisis had been created or
persists”.
As an integral part of the common law the doctrine has also been
applied in the cases of Phillips v. Eire (187) 6 L.R.Q. B 1, State v.
Dosso (1958) 2 P.S.C.R. 180 and Uganda v. Commissioner of Prisons
(1966) E.A.L.R. 514. On the power of the legislature to apply the
principle the case of Attorney-General of the Republic v. Mustapha
Ibrahim of Kyrenia (1954) 3 SC C.1. In that case due to the secession
of Turkey from Cyprus the members of the judiciary and the legislature
were unable to function in accordance with the Constitution. The Greek
members of Parliament passed a law which established a new Supreme
Court. In upholding the validity of the law Josephides J. held inter
alia:
“I have no hesitation in arriving at the conclusion that in these
exceptional circumstances it was the duty of the government through its
legislative organ, to take all measures which were absolutely necessary
and indispensable for the normal and unobstructed administration of
justice. I agree with the submission of Respondent’s counsel that the
measures taken should be for the duration of the necessity and no more.
This is also conceded by the Attorney-General of the Republic.”
Since the doctrine of necessity is not an alien concept in our
jurisprudence it is submitted that it was not out of place to have
invoked it in resolving the constitutional cauldron in which the nation
found itself. However, it is my view that the resolution of the
National Assembly ought not to have gone beyond the acceptance of the
BBC interview of the President as his “written declaration” to the
leadership of the National Assembly. In other words, it is not the
resolution of the National Assembly but the acceptance of the BBC
interview as the written declaration of the President in the
circumstances that enabled the Vice President to assume the post of the
Acting President. However, the invocation of the doctrine of necessity
by the National Assembly to justify its action cannot be faulted. In
Lakanmi & Anor v. Attorney-General of the West & Ors. (1970)
NSCC the Supreme Court held that the transfer of power by the Acting
President to the military high command on January 16, 1966 was
justified under the principle of necessity. In particular, the
apex
court stated:
“We think it wrong to expect that constitution must make provisions for
all emergencies. No constitution can anticipate all the different forms
of phenomena which may beset a nation. Further, the executive authority
of the Federation is vested in the President by Section 84 of the
Constitution and we think in a case of emergency he has power to
exercise it in the best interest of the country, acting under the
doctrine of necessity.”
The Supreme Court has also held that the principle of necessity may
permit an exception to the rule of nemo judex in causa sua (a person
should not be a judge in his/her own cause). Thus, in ex parte Olakanmi
& Ors. v. Obas Ogunoye & Ors. (1985) 1 NWLR (PT 4) 652 Mohammed
Bello JSC (as he then was) held:
“The rule of necessity permits an adjudicator to be a judge in his own
cause, if his participation is absolutely necessary to arrive at a
decision. Thus, in its decision of 15th December 1980, the Supreme
Court of United States of America invoked the rule of necessity and
nullified as unconstitutional two Statutes by which the Congress had
reduced the salaries of Federal Judges including the Justices of the
Supreme Court”.
Notwithstanding that the Vice President has begun to function as the
Acting President the Executive Council of the Federation should,
without any further delay, pass a resolution to the effect that
President Yaradua has become incapacitated to discharge the functions
of his office. The resolution will enable the Senate President to set
up a medical panel to ascertain the fitness or otherwise of the
President to continue in office pursuant to Section 144(2) of the
Constitution. If the President is declared medically unfit to
govern
the country by the medical panel he is required to resign or be removed
from office. At that stage the Vice President shall assume the post of
the President and then appoint a Vice President in accordance with the
provisions of Section 146 of the Constitution.
Conclusion
In spite of the so called imperfections in the resolution of the
National Assembly it has given Nigerians another opportunity to engage
in a genuine electoral reform that can lead to popular democracy. The
Constitution (Promulgation) Decree No 24 of 1999 otherwise called the
“1999 Constitution” ought to be comprehensively reviewed at a Sovereign
National Assembly or in a National Assembly peopled by legislators
elected by Nigerians in a fair and free election. This is the time to
lay a solid foundation for a democratic structure that can stand the
test of time.
No doubt, the intervention of the progressive segment of the civil
society led by the SAVE NIGERIA GROUP contributed significantly to the
resolution of the self imposed constitutional crisis. Since the
neo-colonial ruling class has consistently demonstrated its lack of
commitment to democracy the time has come for the mobilization of the
masses for the liberation of Nigeria. This can only be achieved if
Nigerians are involved in the planning and execution of people-oriented
policies and programmes. In this regard, the Nigerian Bar Association
and similar civil society organizations should renew the campaign for
the implementation of the report of the Electoral Reform Committee and
the Niger Delta Technical Committee chaired by the Honourable Mohammed
Uwais and Ledum Mittee respectively.
Finally, in resolving the current constitutional crisis in favour of
popular democracy the attention of Nigerians ought to be drawn to the
words of Shakespeare:
“There is a tide in the affairs of
men,
which taken at the flood, leads to fortune,
omitted, all the voyage of their life,
is bound in shallow, and in misery,
on such a full sea are we now afloat,
And we must take the current while
it serves or lose our ventures.”