The breakdown of due process
- By Tony Momoh
We are regressing into anarchy. Anarchy is a situation where there is no
order or control in a country or government or institution. It is a strong indictment to say that we are
regressing into anarchy. I have three
cases to illustrate what I am saying. One is the indiscipline that is manifesting in the verbal war between
two former heads of
state, Generals Obasanjo and Babangida which showed clearly
that in a state of anomie, the well-known esprit de corps of the men in khaki,
whether serving or retired, can be publicly ignored. 
 
The second is the poor showing the whole world is watching
at the mountain peak of the judiciary in which the two top heads of the two top
courts of the land have been shamelessly
exchanging blows clearly lacking in judicial finesse. The third is the obfuscating measure being
taken by a party to a petition questioning the conduct of the April elections
in redefining what amounts to national security.
 
Let us take them one by one. First, Obasanjo vs Babangid. 
 
Chief Olusegun Obasanjo was Head of State of Nigeria twice,
1976 - 79, and 1999 - 2007. Gen Ibrahim
Badamasi Babangida was head of State of Nigeria between 1985 and 1993. Obasanjo was 70 many years ago, but Babangida
joined the club on August 17 when he spoke to the press of the past and thus touched
the tail of the tiger that Obasanjo has been known to be for years. 


In reviewing the past to the press at his home in Minna,
Babangida (IBB) said, like the lizard would in self-praise, that during his
tenure as Head of State, he was able to manage poverty to achieve success while
someone else, for eight years, managed affluence and achieved failure. If anyone was in doubt about who was there
for eight years, and managed affluence and achieved failure, IBB fired another
shot from the hip when he said the administration of his former boss lacked
creativity and innovation. Who but
Obasanjo was he referring to when he again said that if he had had his hands on
$16 billion that was squandered on the independent power project, he would have
given Nigeria not just electricity but nuclear power.
And who else earned $180 per barrel of oil
for years while he, IBB, was struggling with making do with only $10 a barrel. 
 
When Obasajo (Obj) was informed that IBB had insinuated that
he lacked vision and foresight, he was on fire. He took time to be sure that
IBB did question his capacity to see the future. He reached out to the time he left, in 1979,
and the time he returned, in 1999, and spoke of the near absence of any major
achievement that those who came after him had to show. He was emphatic that of
the 20 years of his absence, IBB was there for eight years, and made no impact
in the supply of power. 
 
He spoke some verses of the Bible (Proverbs chapter 26) that
provide options on what to do when you are confronted by a fool. One says you should ignore him so that you do
not become one yourself; and the other, that you answer a fool so that he will
not think that he is a wise man. He said
IBB must be a fool to be so mindless as to associate him with lacking in
visioning. 
 

He put it this bluntly, 'Babangida should be pitied and
shown sympathy rather than anger or condemnation because (of) the old saying
(that) … a fool at 40 is a fool forever; … and I would say a regret at 70 is
regret too late. Well, a regret at 70 is a regret to the grave.' 
 
What IBB said and what Obj said that got me thinking was the
one referring to having foresight or not having one. My mind went back to January 2007 when Obj,
(he was our president then) made a statement to the same effect, that he
ignored Abacha's Vision 2010 project because he found it difficult to depend on
someone who had no sight. Looking at Shonekan who was the power behind the
Vision 2010 Programme, easily the most comprehensive socio-economic re-engineering project in our history, from
independence to now (they were seated on the same high table at the outing), he
said, 'How can you have vision when you have no sight?' 
 
I took exception to that statement, not because I was
defending Abacha but that I know as a fact that you can have vision without
sight, that vision is spiritual and sight is physical. Don't the blind 'see'? I wrote a piece on it entitled Between Sight and Vision, in my column
in the Sunday Vanguard of January 28, 2007 (See Vol 2, Democracy Watch, A Monitor's
Diary, pages 269 -292). 
 
Imagine Obasanjo who never ever conceded that anyone but he
had answers to all problems of man, being told by someone he terrorised with that much taunting that may have played part in
his stepping aside, that that Obasanjo, lacked vision! His reaction, to me, was understandable, but
as former head of state and a general, did he have to throw decorum to the
wind? 
 
But looking without emotion into the statement that IBB
made, I read signs of things to come into it. It is very much unlike IBB to speak that volume of 'truth' about his
military colleagues, least of all those who were his bosses.
That he would come out this bluntly, is what
must be analysed. Time will be the
witness of where this open breakdown of due process will lead.
 
The second example I want to give of our regressing into
anarchy is what has been happening in the organ of government that interprets
our laws, the laws they are now themselves observing more in the breach than
the observance. And, with more guile than
shame, the gladiators, two bosses manning our two apex courts, the Supreme
Court and the Court of Appeal, are destroying the very foundation of our
judicial system. The body that should
bring sanity and order, and impose due process, the National Judicial Council
whose work is unambiguously settled in the Third Schedule to the Constitution,
is the body setting examples that will forever remain in the black book for
those who ought to have built their country, but through greed, compromised the
values that would have grown it. 
 
The Chief Justice of Nigeria, Justice Aloysius Katsina-Alu,
is the chairman of the National Judicial Council which is a 23-member apex body
of the judiciary that is responsible for the recommendation of the appointment,
promotion and discipline of judges at both state and federal levels.
The President of the Court of Appeal, Justice 
Isa Ayo Salami, is a member of the council, of which a large number of the
members are directly appointed by the
Chief Justice. 
 
The problem between the two justices became public knowledge
when the ruling on the Sokoto governorship election petition was stopped by the
Chief Justice. A committee set up by the NJC asked for amicable resolution of
the degenerating relationship between the boss of the Supreme Court and that of
the Court of Appeal. 
 
But the NJC set up some other bodies that came up absolving the Chief Justice of
allegations that he had asked that the decision in the Sokoto case go the way
he wanted. Salami was asked to apologise
to the Chief Justice to let sleeping dogs lie. Salami did not think that was a neat thing to do, insisting that he owed
no one any apology in the face of obvious meddling that had been undeniable in
the Sokoto case. 
 
The NJC then met and without the presence of the chairman or
his deputy who should chair the council in the absence of the chairman, emerged
with two embarrassing conclusions - that Salami having failed to apologise
stands suspended as the President of the Court of Appeal.
He was also being recommended to the
President for retirement. Both decisions
were without even a thought for the fact that Salami had gone to court to
challenge the call on him to apologise; and to question the competence of the
body so to do.
 
The decision of the NJC is rousing people to varying
conclusions, one of them that Salami is being sent out of the Court of Appeal
because of what awaits the ruling party in the various election petitions in
the tribunals that would ultimately come to the highest court that would handle
them. Anyone who has heard the
revelations in tribunals where fake ballot papers were discovered to have been
used during the April elections at all levels, should read between the lines
when they hear that those who have been masters of vote manipulation are afraid
of any judge associated with uprightness. Salami is one such judge. His
refusal to go to the Supreme Court was disarming enough. His refusal to apologise for what he believed
he did not do was even smarter. Because having apologised for what he alleged
on oath, what other route would have been left for him if he had been asked to
retire or face charges for lying under oath. 
 
The way they have taken will lead us to undreamed-of
repercussions.
What powers has the NJC 
to take decisions so clearly shown to be the assigned roles of the President
and the Senate of the National Assembly, Whatever the NJC wants in the area of stopping a judge from performing
his functions will have to follow due process. The decision of the NJC to stop Salami from work when the matter of
which they are a defending party is before a court, is a choice for avoidance
if not direct boycott of due process. And the polity will lose.
 
The third illustration of our regressing into anarchy is the
reason INEC has given for denying the Congress for Progressive Change (CPC)
access to the direct data capturing machines which during the registration of voters late last year recorded
details of the 73 million voters for the
2011 elections. They say it is against
national security to open up the facility because the secrecy the registered
voter is entitled to would be revealed. By
letting people know who voted for what, their identity would be revealed and
that is not in the interest of national security. 
 
What is not in the interest of national security is failure
to perform the duties so clearly settled in Chapter 2 of the Constitution. They are political, social, economic, educational,
environmental, cultural and foreign policy.
Every political party seeking registration from INEC must reflect these
national duties on government in their manifestoes. The chapter does not mince words as to who
has sovereignty. It belongs to the
people of Nigeria
who documented what those who exercise legislative, executive and judicial
powers must do. The summary of that
assignment is that their priority is the security and welfare of the citizens,
150 million of us. Any act outside this
brief is not in the national interest and so is against national security. 
 
The access sought by the CPC and which the Court of Appeal,
chaired by Justice Isa Ayo Salami, granted after the senior lawyers representing
all the parties had met for some five hours and emerged with a consensus not to
oppose the request, is what INEC is now saying cannot be given because of
national security implications. 
 
What forensic experts are looking for are those votes that
are not valid because of multiple thumbing and other measures that would
disclose whether the votes in a particular unit were those cast by people
registered in that unit and had been accredited for the purpose.
If a vote in a box fails the test, then it is
not a valid vote. It is one cast by, for
want of a better word, a ghost, And what
is the name, the identity of a ghost?
 
So the pressure to deny access to the data in the possession
of INEC is a choice to move in the
direction of anarchy because it flies in the face of due process. 
 
The three illustrations are diverse but there is a unifying
thread - the movement is directly driven by vested interests. And it is vested interests, more than
anything else, that undermine the people's interest, the national
interest. We must gba break before we manipulate this country into a political ditch
it will be difficult to get out of.
 
 

Prince Tony Momoh, National Chairman, Congress for Progressive Change
(CPC), Plot 1132, Festus Okotie Eboh Crescent, Utako District, Abuja, August 19, 2011.