Being the paper presented by FEMI FALANA, SAN at the 50th-anniversary interactive session held by the Abeokuta Club on August 2, 2022, at Abeokuta, Ogun State
The Abeokuta Club was founded on August 2, 1970 by the creme de la creme of Egbaland to contribute their quota to the development of their fatherland. In celebrating the 50th anniversary of the prestigious club the members have assembled us to have an interactive session to discuss “Good governance or misgovernance: The contract called democracy”. The topic of our discourse has come at the right time as the nation prepares for the 2023 general elections. It is in doubt that misgovernance has replaced good governance in Nigeria, while the majority of public officers have breached the contract called democracy.
Mine is a simple task as I am only required to examine the crisis of insecurity in the country. Since the acquisition of security equipment alone cannot guarantee peace, law and order, the Constitution has prescribed that the security and welfare of the people shall be the primary purpose of government. In examining the topic of our discourse, we shall review the crisis of insecurity and the mismanagement of the economy which has frustrated the realisation of the objective of establishing a welfare state in the country. In doing justice to the topic, we shall look at the relevant provisions of the Constitution with a view to pointing out that the members of the ruling class have no fidelity to the rule of law. We shall challenge advocates of restructuring for failing to take advantage of loopholes in the 1999 Constitution to ensure power devolution in the overall interests of the Nigerian people.
Democracy or plutocracy?
As part of the fundamental objectives of the neo-colonial State, the participation of the people in their government is guaranteed in accordance with the provisions of the Constitution and the Electoral Act. The implication is that elected officials are mandatorily required to have their mandate renewed periodically through fair and free elections. Nigeria is said to be a state that is based on the principles of democracy and social justice. The federal, state and local governments are under a legal obligation to promote the happiness, freedom and prosperity of the people. But in view of the monetisation of the electoral process by the political class, Nigeria cannot be said to be a democratic society. It has become a plutocratic society where only a few rich people can contest and win elections. In other words, democracy is no longer a government of the people but a government of a few rich and powerful individuals.
It is common knowledge that the wealth with which the democratic process is sabotaged by members of the ruling class has been traced to the coffers of the government. A public officer and his cronies have just been charged with the criminal diversion of N109 billion from the Federation Account and bribes received from Governors, Finance Commissioners and heads of parastatals who had to jump the queue that was artificially erected in the office of the Accountant-General of the Federation. I am also aware that the sum of N4.5 billion has just been found in the bank account of the Surveyor-General of Ogun State. The Abeokuta Club should lead a campaign for the recovery of the stolen fund and prosecution of the suspect and his collaborators. The recovered loot should be invested in one of the sectors calling for urgent attention of the State Government. If we fail to monitor the movement of the fund it may turn out to be a case of “ole gbe, ole gba.” (A thief steals something, another thief divests him of it).
A situation whereby corruption is fought, even though partially, by the Federal Government alone should stop. In view of the duty imposed on the State by section 15(5) of the Constitution to “abolish all corrupt practices and abuses of power”, the authorities of the 36 state governments and the Federal Capital Territory should establish anti-graft agencies to fight the menace of corruption, recover looted funds and prosecute indicted individuals, groups and organisations. In addition to the recovery of looted public funds from all criminal elements, serving and retired public officers who wish to contest elections should be thoroughly investigated. Those who betrayed the public trust by looting the treasury should not be allowed to pollute the electoral process with stolen money. Nigerians must stop the dangerous culture of “owo Abu lafi se Abu lejo” (we used Abu’s money to entertain Abu as a visitor).
Mismanagement of the Nigerian economy
The National Economic Council established pursuant to section 153(1) and Paragraphs 18 & 19 of Part I of the Third Schedule to the Constitution has the mandate to “advise the President concerning the economic affairs of the Federation, and in particular on measures necessary for the coordination of the economic planning efforts or economic programmes of the various governments of the federation.” The NEC, chaired by the Vice-President, is comprised of the governor of each state of the Federation and the Governor of the Central Bank of Nigeria.
Notwithstanding the establishment of the NEC by the Constitution, successive regimes have ignored its advice. They prefer to rely on the advice of the Presidential Economic Council on the one hand and the International Monetary Fund and the World Bank on the other. As a matter of fact, the government has swallowed hook, line and sinker the neoliberal economic policies dictated by the Bretton Wood institutions. Even though such policies have turned Nigeria into the headquarters of global poverty, the Federal Government has not plucked up the courage to abandon them in the interest of the national economy. I wish to submit without any fear of contradiction that the economic policies of the government are in conflict with section 16 (3)(d) of the Constitution, which provides that the state shall ensure that “suitable and adequate shelter, suitable and adequate food, a reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens.”
To guarantee adequate resources to meet the basic responsibilities of the government the Constitutional has prohibited the concentration of wealth or the means of production and exchange in the hands of a few people or of a group.
It is crystal clear that the economy will soon enter into another recession due to unprecedented importation of fuel and other goods from Western countries and China, grand corruption, dollarisation of the economy and implementation of neoliberal economic policies in the Nigerian economy. The mismanagement of the economy has been confirmed by top officials of the regime of the President, Major General Muhammadu Buhari (retd.). While the Comptroller-General of Customs, Colonel Hamid Ali, has accused the Nigerian National Petroleum Corporation and Directorate of Petroleum Resources of involvement in the smuggling of fuel into neighbouring countries, the Governor of the Central Bank of Nigeria, Mr Godwin Emefiele, has blamed the NNPC for not remitting dollars into the Federation Account. Whereas the sum of N443 billion was provided for fuel subsidy in the 2022 budget, the National Assembly has passed the supplementary budget which increased the fund to N4 trillion. Based on the massive devaluation of the naira through dollarisation the Minister of Finance, Mrs Zainab Ahmed, has disclosed that fuel subsidy may gulp N6.5 trillion this year.
Meanwhile, the NNPC has been unbundled in accordance with the provisions of the Petroleum Industry Act. But President Buhari has single-handedly reorganised the oil and gas industry by appointing members of the Boards of the NNPC and new companies. Although the NNPC, CBN and scores of other parastatals and enterprises were established with funds from the Federation Account, they are managed by the Federal Government alone. The investment of Nigeria in the Nigerian Liquefied Natural Gas Limited was paid from the Federation Account. But the huge return of over $20 billion on the investment of the Federation in the NLNG has been cornered by the Federal Government. Electricity companies and other parastatals and enterprises owned by the people of Nigeria have been privatised, commercialised or concessioned by the Federal Government without the consent of the state and local governments. Even the Federation Account is exclusively managed by the Federal Government. Thus, a token of the revenue generated by over 100 public enterprises belonging to Nigeria is remitted to the Federation Account by the Federal Government.
In light of the foregoing, it is suggested that the Nigeria Governors Forum and the Association of Local Governments of Nigeria should demand an urgent review of the Petroleum Industry Act to ensure the joint management of the natural resources of the nation, which has been vested in the Government of the Federation by section 44(3) of the Nigerian Constitution. In the same vein, the NGF and ALGON should demand the joint management of the NNPC and other parastatals and enterprises which were established with funds from the Federation Account. In order to prevent another economic recession, both NGF and ALGON should demand the immediate removal of the CBN Governor, Mr Emefiele. It is indisputable that the monetary policies of the CBN under his watch have ruined the economy while he has failed to resolve the conflict of interest arising from his membership of the ruling party. The CBN should be run by professionals of integrity and supervised by a Board constituted by representatives of the Federal, State and Local Governments. To achieve the objective the CBN Act should be amended to protect the interests of the states and local governments. In particular, the board of the CBN should be constituted by the accredited representatives of the three tiers of government.
Why Nigeria is not secured
By virtue of section 214 of the Constitution, there shall be the Nigeria Police Force and no other police force shall be established for the Federation or any part thereof. But contrary to the clear and unambiguous provision of the Constitution, President Olusegun Obasanjo decided to establish the National Defence and Security Corps in 2003. As soon as a bill was forwarded to the National Assembly for the establishment of the Corps, I called on state governments to demand the creation of state police agencies. The call fell on deaf ears at the material time. Apart from enacting the law to establish another police force, the Federal Government has since authorised certain agencies like EFCC, ICPC, SSS, NDLEA, Customs, Immigration, Correctional Centres and Federal Road Safety Corps to bear arms and perform the duties of the police. In spite of the decentralisation of police powers at the centre, the Federal Government has continued to kick against the creation of state police service on the grounds that it is unconstitutional!
No doubt, based on the virtual collapse of the security architecture of the neo-colonial state, the Federal Government has grudgingly allowed state governments to create state or regional security outfits. But they are not allowed to bear arms. Thus, the personnel of the regional security outfits who are armed with cutlasses and dane guns are expected to commit suicide by confronting AK 47-bearing terrorists, bandits, kidnappers, herders and robbers. In view of the fact that the civilian Joint Task Force operatives are given licences to bear arms and ammunition, I have asked state governments to sue the Federal Government for refusing to grant licences to the personnel of regional security outfits, for allowing dangerous criminals to breach the constitutional rights of unarmed citizens to life and dignity. Furthermore, it is discriminatory to deny licences to 5,000 state security personnel to bear arms to protect millions of unarmed citizens while a few individuals are granted licences to acquire weapons to protect themselves and their family members.
Curiously, some state governors have also complained about the refusal of the National Security Adviser to approve the applications for End Users Certificates for the importation of drones to monitor and expose terrorists and kidnappers hiding in the forests. With respect, such sabotage of security ought to be challenged in the Federal High Court as the National Security Adviser has not been conferred with the power by any law to grant or reject the requests of governors to acquire equipment to secure the areas that have been exposed to danger by the Federal Government. The governors should have directed the requests to President Buhari who has publicly challenged them to adopt all necessary measures to secure the states since he has asked them to stop rushing to the Villa to complain about insecurity or killings by criminal gangs. In the Attorney-General of Rivers v Attorney-General of the Federation, the Federal High Court has held that it is the sole responsibility of the Federal Government to fund the Nigerian Police Force. Therefore, the executive should submit a supplementary money bill to the National Assembly for the funding of the police since it is the constitutional duty of the police to maintain law and order in the country.
No doubt, by virtue of section 217 of the Constitution, the President is empowered to invite members of the armed forces to aid civil authorities when there is insurrection which cannot be suppressed by the police. Neither the Constitution nor the Armed Forces Act justifies the deployment of the armed forces to maintain internal security in a democratic dispensation. In other words, the deployment of troops in the Federal Capital Territory and the 36 states of the Federation to perform police duties should be stopped while the police should be adequately funded to guarantee law and order in the country. However, the President should be stopped from further deploying troops without the approval of the National Assembly. It should be recalled that between 2014 and 2015, some concerned APC members filed three cases in the Federal High Court against the deployment of troops by the Goodluck Jonathan administration without the approval of the National Assembly. The cases were won by the plaintiffs. Even though the current Speaker, Femi Gbajabiamila, was a plaintiff in one of the cases, the National Assembly members have not deemed it fit to draw the attention of the President to the illegality of deploying the armed forces without legislative endorsement.
Furthermore, section 305 of the Constitution requires the President to declare a state of emergency wherever there is a breakdown of law and order in any part of Nigeria or in the entire Federation. Such a declaration is subject to the approval of the National Assembly. The President ought to have declared a state of emergency in Borno, Zamfara, Niger, Katsina, Kaduna, Imo and Anambra states to facilitate the deployment of troops to restore law and order which have broken down completely. It is disturbing to note that since 2015, President Buhari has not been questioned by the National Assembly for deploying troops in several states without declaring a state of emergency in accordance with section 305 of the Constitution.
However, it is pertinent to point out that the purpose of declaring a state of emergency is to enable the President to adopt extraordinary measures to restore law and order in the affected areas. It does not empower the President to dismantle democratic structures, as was the case in Plateau and Ekiti states, where elected governors and legislators were suspended while Sole Administrators were imposed on the people by President Olusegun Obasanjo. It is submitted that there is no provision in the Constitution for the replacement of elected officials with interim rulers appointed by the President. Hence, I commended President Goodluck Jonathan for not removing the Governors of Adamawa, Borno and Yobe States when a state of emergency rule was imposed on the three war-torn areas in 2012.
Some members of the National Assembly have threatened to impeach President Buhari over his alleged failure to address the crisis of insecurity. But National Assembly members are equally guilty of negligence in the performance of their oversight functions over security and defence. For example, about N5 trillion has been earmarked for defence in the past 7 years. But the sundry allegations of corruption in arms procurement have not been investigated by the National Assembly. Whereas the meetings of the National Defence Council and National Security Council are held regularly, the Committees on Police Affairs in both chambers of the National Assembly have not challenged the President for not allowing the Nigerian Police Council to discharge its constitutional functions of administrating, organising and supervising the Nigeria Police Force
In frustration, the Governor of Zamfara State recently directed the helpless people in Zamfara State to acquire arms in self-defence since the armed forces and the police have failed woefully to stop terrorist attacks and kidnapping of women and children. While not addressing the concerns of the governor, the police and military authorities criticised the call on the people to defend themselves. In view of the dangerous effect of uncontrolled gun possession, the Governor is advised to request the President to provide military training for young men and women in Zamfara State. This suggestion is in line with Section 220 of the Constitution which provides as follows:
“(1) The Federation shall establish and maintain adequate facilities for carrying into effect any Act of the National Assembly providing for compulsory military training or military service for citizens of Nigeria.
(2) Until an Act of the National Assembly is made in that behalf the President may maintain adequate facilities in any secondary post-secondary educational institution in Nigeria for giving military training in any such institution which desires to have the training.”
In the second republic, the Federal Government made adequate provisions for the police. In fact, the police had acquired sophisticated weapons to secure the country against criminal gangs and other dangerous elements. But as soon as the civilian regime was brought to an abrupt end on December 31, 1983, the Buhari military junta confiscated all the equipment from the police. Since then, the Federal Government has refused to fund the police to the detriment of national security. The neglect of the police cannot continue in view of the worsening security situation in all states of the Federation. On their part, each State House of Assembly should strengthen the security agencies that have been established to complement the efforts of the Nigerian police. The Committee on the Judiciary in the Legislature should monitor Attorneys-General with a view to ensuring that all indicted criminal suspects are prosecuted in line with the applicable Administration of Criminal Justice Law.