2011: RULE OF MEN AGAINST RULE OF LAW
In every civilized society, whenever the whims and caprices of men (rule of men) challenge the authority of an extant law, there is always a reasonable, fair, conscientious, equitable and just expectation that the law being challenged will prevail.
This is the reason that worshipers in the Temple of Justice profess the creed: fiat Justitia ruat caelum (May Justice be done though the heavens fall). Alas! Not in the Nigerian political firmament. The powers that be would rather profess a sinister counter-creed: May Injustice be done though heavens fall. Coups would be executed; constitutions would be brazenly subverted; public treasuries would be looted; thousands would perish, maimed or displaced; elections would be rigged or annulled and such other sinister acts of injustice would be perpetrated against citizens with obscene impunity.
The latest in the acts of 'May-injustice-be-done-though-heavens-fall' is the willful attempt by a handful of Nigerian political elites to subvert the 1999 Constitution in respect of the right to vote and be voted for in a presidential election. For avoidance of doubt section 132 (4) of the 1999 Constitution provides: For the purpose of an election to the office of President, the whole of the Federation shall be regarded as one constituency.
This means that: all constituents (that is, all Nigerians) who are not any under any legal disability are free to participate in the election. Any attempt to further divide Nigeria into constituencies or zones with a view to excluding some zones and taking control of the government of Nigeria will be contrary to constitutional provision of one constituency and a violation of section 1(2) which says: The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
Indeed, the masterminds of this imminent act of injustice have given three major reasons for their subversive campaign. Namely: (1) An Agreement to waive constitutional provisions concerning the right to vote and be voted for. (2) The issue of Federal Character (3) Equity of Minority Protection under Zoning Policy.
Compatriots, let us consider their reasons seriatim. The purported Agreement is to the effect that Presidency would rotate between North and South after every eight (8) years. Firstly, any agreement such as this grimly reveals the level of contempt the parties to the Agreement have for the Nigerian Constitution. This is a sacred instrument which has been attributed to: 'We, the people of the Federal Republic of Nigeria…' They have not only accepted that their Agreement lacks Constitutional backing they are boldly asking the victims of their Agreement to disregard the Constitution.
If we could do this what, moral right do we have to arrest criminals for violating the law? Why should we say there is a 'conspiracy' to violate a law when average Nigerians are the parties to such conspiracy, but when it is the high mighty, it is not a conspiracy, it is a gentleman agreement! What could have happened if ordinary citizens abducted their governor as in the case of Chris Ngige? Little wonder, coup plotters suspend the Constitution at will. Little wonder elections are brazenly rigged or annulled!
The protagonists of the purported Agreement appear to be clinging to a principle of law that agreements must be obeyed. (Pacta sunt servanda). But the parties to the agreement are incompetent to make any agreement to modify the Constitution. Assuming but not conceding that they are competent, their Agreement would be subject to customary principles of international law, which principles include the right of a citizen to participate freely in the government of his or her country (See Article 13(1) of the African Charter on Human and Peoples Rights (Enforcement and Ratification Act) 1990). This is, to all intents and purposes, the right to vote and be voted for. This freedom is part of jus cogens against which no form of derogation is permitted.
Ordinarily, we should not proceed to discuss the issue of federal character at all because the first issue above is conclusive in proving the illegality of Zoning Policy. However, we shall endeavour to enlighten the proponents further. The concept of federal character under the Fundamental Objectives and Directive Principles of State Policy as enshrined in Chapter 2 of 1999 Constitution is not binding on anybody unless they are enacted into law. For ease of reference, the part of our constitution relating to federal character reads:
Section 14 (1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. (2) It is hereby, accordingly, declared that: (a) sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority; (b) the security and welfare of the people shall be the primary purpose of government: and (c) the participation by the people in their government shall be ensured in accordance with the provisions of this constitution (d) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.
Unless we are reading these provisions upside down, sovereignty of the people, their welfare and security and their right to participate in government are pivotal principles of democracy and social justice in no less important ways than federal character. In fact, you cannot purport to evolve federal character or exercise any power of government without acknowledging the sovereignty of the people. For a few people to arrogate to themselves the sovereign power to decide where our president comes from is a contempt for our sovereignty and a brazen disregard for our federal character itself.
•Olufemi Akinbule Aduwo
Rights Monitoring Group