A puzzled exigent glance at the rule of unlawfulness

Nowhere is it required that the luxury of uninterrupted sleep should be
accorded to a dog or any creature for that matter, when energetic
barking, excited tail-wagging and sniffing become urgent necessities. All
winsome spectacles and qualities, when accompanied by retrieval. We know,
hibernation is a natural and key element of the lives of many deserving animals
and organisms but frankly, this is not the time to allow any sleeping dog to
lie!

World Cup setbacks and an allegedly reviewed constitution notwithstanding, we
really have to talk and act; we must act on the problematic issue of the rule
of law, before we all get side-tracked into some worthless nonsense and
forget. Indicted and yet to be indicted ex-governors, ex-military men and
assorted crooks waddling back into the governing PDP fold, enboldened by the
absence of effective censure for embezzlement, has left Nigerians painfully
puzzled.

Law courts, national and state assemblies, local councils and public
institutions, are now openly places incapable of successfully disguising the
shameful legal and financial intrigues and inanities that consume
those adherents of inequipoise conditions in national affairs. The effects of
debilitating illegalities and a chaotic legal system on society are
profound. The Aondoakaa effect must be neutralised and expunged.

We feel that before the barrage of declarations and opinions on the impending
half century commemoration of Nigeria ‘s existence as a colonial amalgam, are
unleashed, it would be timely to draw in, again, the important subject of
the Rule of Law. Our intention is to keep the alarm bells ringing, for
President Ebele(sounds much better than Goodluck Jonathan) to
pursue rigorously a historic cleansing of his rotten party, the legislature and
the judiciary; it can be done. This act would change the other parties and
society and remove the deep suspicion and the almost complete loss of respect
and interest in the judiciary, political parties, the armed forces and
legislature that currently afflicts our national life.

Sound and fair rules make it possible to forsee with some certainty how the
authority or the state will use its powers in given circumstances to come to
(a)decisions. The rule of law is not to be confused with democracy. Given the
promiscuous use made in recent times of the expression, ‘the rule of law’,
and mainly in certain privileged circles where they feel threatened, it is
hardly surprising that a tussle has ensued over faithfulness to the
concept. But false conflation of legal legitimacy and conceptions of law have
exposed the shallow grasp and dishonest practice of the entire system of the
rules of legality. It is not whether there is rule of law in Nigeria , but can
there be.

An act of treachery was committed by Yar’Adua by his undermining of the value
and impact of the evidence stacked against a number of ex-governors and other
villains. What was abundantly clear though was that the evidence against those
ex-PDP governors Attah, Odili, Ibori, Alamieyeseigha, Igbinedion, who
incidentally were from the Niger Delta area, apart from Dariye and Kalu, were
made available nationally and internationally and not disputed .

Evidence of theft stretches from Maiduguri to Liechtenstein and back
through London , New York , Rio de Janeiro , Paris , Berlin , Johannesbourg
and Abu Dhabi . Corroborated and independently authenticated proofs are
publicly available and their proper use should not be impeded. We question
though, whether action should be restrcited only to those listed high profile
names such as Ibori. Surely there are others and they must be brought to book
too.

While people in the real parts of the Niger Delta, dripping with sickening
poverty, were killing each other, the wealth of their land was zig-zagging its
way into their governors’ pockets with full knowledge of all those well-placed
blockheads . Military dictators and members of civilian regimes were making
criminal gifts of our oil blocks to one another. Sadly, some of the poor
and abandoned people obtained greater satisfaction from being
armed and influenced into acts of brutality than question the long
running deterioration in their well-being. Serious crime was met with the
government’s customary cavalier response and more empty words. In truth, as we
have often stated, by raiding their people’s assests, they criminally
penalise and direct away from their citizens the resources for Bayelsa, Edo ,
Akwa Ibom, Delta, Rivers. In consequence we are left with joblessness, poorly
paid policemen and the bad state of our environment. It is shocking to
remember that Yar’Auda was prepared to live with or was at ease with the
stupendous amount of money flaunted by his thieving party members, infact ,
so were his predecessors, because they all understood its illicit origin.

By purporting to avoid confusion Yar’Adua dropped poisonous ethical fallacy of
legality to cloud the issues and damage the hope of sanction against criminals
in high office and shady places. Fuzzy and superficial appeal to the rule of
law was dishonest and cynical when the law had been openly broken by members of
his mob. There were growing reasons to begin to view that Yar’Adua and his
gang were unfit for office. President Ebele take note!

A series of disgraceful and outright criminal incidents by public office
holders past and present, made it harder than ever to understand what has
happened to the justice system. The sequence of expedient judgements and
subsequent setting down of convictions which had incontrovertible evidence,
showed alarming disregard for legal and constitutional
responsibilities. Yar’Adua made his own singular variation on the Faustian
bargain. The regime over which he presided was an anthem of crude financial and
political loutishness, initially instituted by the thieves in khakhi uniforms
and given extended lease of life by civilian regimes that have
followed, including even the Obasanjo era.
Too much effort was put into defending men who stole our money and
companies that exploited the lax laws, that it is too shameful to recall.
Accountancy Age, reported that France , Germany are launching attacks on tax
havens. Barack Obama, the U.S president, is among the sponsors of the proposed
United States ‘ assault on tax havens. They understand that tax havens allow
multinationals and local kleptomaniacs to siphon off Africa ‘s wealth to these
places. So widespread has the looting by the African elite become, that a
study for Tax Justice Network, concluded that the hell-holes of the sub-Sahara
were a net creditor to the rest of the world. The dismantling of
off-shore dealings is a necessary pre-condition for African development.

The global financial crisis began with the collapse of structural investment
vehicles, which accountants and lawyers working off-shore put together. The
new financial system that will emerge from the ruins will require
toughness, sharper transparency and openness, – virtues off-shore banking hates
with a passion.

We have a common view with the late Yar’Adua and it is that, the EFCC was set
up to apprehend and cleanse society of economic crimes. In the public
understanding of events and issues of a financial nature linked to our
politicians and ex-military men, records showed that the ex-governors did not
obey the rules. Both Obasanjo and Yar’Adua were aware of this and chose
different responses.

Pandemonium ensued when Nuhu Ribadu attempted to ensure that the EFCC acted
like it knew what it was set up to do. Although not entirely prefect in its
operation, it was nevertheless a much welcome organ. In Yar’Adua’s hands and in
his rattled mob’s mind the rule of law became an argument rather than a fact.
What matters to the legal perception is that there was legally established
power to set up the EFCC and let it get on with its role.

The rule of law seem to have disappeared when the coffers of the country and
states were being emptied by ‘ our’ leaders and their cronies. In
producing it, Yar’Adua was encouraged by Aondoakaa the so-called
attorney-general and fellow villains,to indulge in a suspicious practice of
denying certainty, whilst the accused reigned. Hardly did the Chief Justice
Legbo Kutigi ever feel it his duty to rescue the judiciary from an ignominous
image and existence. They were all mired and the stench was agreeable to them
because it came laced with our money.

Deficiencies in the rule of law concept in Nigeria is due to insufficiencies
and institutional inadequacies. There are matters of strange
interpretations of how individuals and state can lay claim to
rights, ineptitude in incorporating a modern conception of laws which operate
under the watchful eyes of an informed and educated public and free and
independent institutions. Failure to achieve or enjoy the effective and open
rule of law is due to these particular deficiencies which condemns the whole
system as inappropriate to the present and future levels of development.

It does not matter how big your babanriga is or how stuffy your jacket and tie
are or how grotesque the sight of a damn cowboy hat on top of your traditional
attire might conjure, the rule of law means what is says; the rule of law.
Taken in its broadest sense, this means that the people should obey our
generally agreed law and be ruled by it. Igbinedion, Ibori. Odili,
Alamieyeseigha and Attah, Kalu, Dariye and other villains, should be arraigned
before the law courts to answer questions about the origin of the wealth linked
to their persons and take back what is ours. After all, they came pleading for
electoral legitimation of their political whims, which included ‘ managing ’
our public affairs. None of them should be exempted from providing proper
answers to the questions relating to their performance in office. Even so, when
an unprincipled member of the British parliament Tony Baldry allegedly
paid by the accused James Ibori, tabled objections to charges of money
laundering on the floor of the house, we began to understand the scale of the
stealing and the extent of the web.
Those who Yar’Adua used his nationally conferred position as President to
defend were grouped in the disgusting thieves gallery, the whole country knew
it. The more Yar’Adua, his followers and his lawmaking lapdogs shouted about ‘
our values’, ‘ rule of law ‘, the more vacuous the phrases sounded .
Outsiders see through our illusions quicker than we can. They see the brittle,
episodic relationships which constitute many sad poor lives; the lack of
respect for the legal and human rights of Nigerians, the lack of opportunities
for affordable legal representation, the general applicability of legality,
reform of prisons and the treatment of prisoners.

Every fair-minded citizen expects the judicial branch to offer remedy in
instances of legal headaches. The rule of law requires more than effective
crime suppression as a guiding principle in achieving law enforcement
objectives. If the relevant authority was building towards prosecution they
should have been allowed to conclude their task. This turned out to be an
unrealistic wish particularly with Kutigi and Aondoakaa on the loose and
throttling an enfeebled judiciary which singularly finds it difficult to
successfully bring ‘ big’ wrongdoers to justice.

Suspicion must then be that, something nasty was going on and perhaps still is.
We want President Ebele’s position on this. Criminal law ought to be used in
a manner that underline the fundamental values of our society. In our
experience, we can confidently insist that the Nigerian society does manage to
breed and retain many admirable values. The sort of alternatives which
Aondoakaa sought and which Mrs. Waziri was pushing, before the presidential
tables were turned, were contrary to these values; inconsistent with the
general perception of the rule of law and the constitution; unless Aondoakaa
and Mrs. Waziri had both concluded that our society is lawless and is
generally criminally-inclined. But who were arrested in London or Dubai or
refused permission to enter the U.S. ?

Discarding normal legal and democratic principles creates two classes of
citizens and limits legal equality which is virtually absent anyway. We
affirm that the legislature failed to adhere to the concept of the rule of law
in discharging its duties as understood in the Nigerian constitutional law.
However it is not for the courts to second-guess the legislature and to assess
the relative merits of social policies underlying criminal prohibitions.
Society is not known to exempt officials or others from duty of obedience to
the laws which governs other citizens. For the citizens, there is strong
disquiet over issues such as Immunity and Perpetual Injunctions by former and
current public office holders. The view and expectation is that the integrity
of the law must be maintained and unlawful conduct of any member is not
concealed or permitted to continue.

The rule of law implies a sense of order insofar as all State action is
authorised by legal rules. Even a slight departure from a purely procedural
account of legality illustrates that the values inherent in legislative
process, which are the source of legality, cannot be neglected. What we saw and
read and acquired knowledge of was legally significant and went to the very top
of an unprincipled government and a judiciary which showed a lack of capacity
to assume responsibility for the system. These congeries drew up the infamous ‘
Senate Report’ , to criminalise El Rufai. The generality of the mandate
formulated by the legislature failed to understand that the rule of law is but
one of several virtues of the legal system, and it (the rule of law) was the
basis for the unconstitutionality of Aondoakaa’s ruling on Ibori and Justice
I.N. Buba’s on Odili, not its constitutional validity. These judges were toying
with our legal system. Spectacular scandals involving judges, lawyers,
politicians and the legal system has conferred legal notoriety on Nigeria .
In most instances these incidents exacerbate political crisis.

During Aondoakaa tenure we witnessed Nasir El Rufai’s courage in the face of
trumped-up charges and persecution without any hint of intervention from
Yar’Adua ; growth in fraudulent landholdings; the outrageous NITEL and other
privatisations crimes; the US justice matter with Enaboifo who was said to be
involved in a Sao Tome joint venture, the Rosehill affair; questionable
origins of the Oando, collusion by judiciary with government to initiate the
abuse of due process and much more.

The current Chief Justice, Katsina-Alu’s nonsense about the depth and extent
of corruption in the country must first be directed at his peers and his
profession. We do not accept that the whole country should be so tainted.
Nigerians are yearning desperately to escape all the legal uncertainties and
injustices.

There is clearly a public demand for an orderly society. According to the
general public responses, damage is done which have an immoral or anti-social
nature and openly indicative of heavy dependence on abnormal use of power. The
ex-attorney general Aondoakaa and the ex-Chief Justice Kutigi were united
with late President Yar’Adua on this insane approach. Using the resistance of
formal principles as a shield to hide objectives incompatible with legal order
could certainly appear, to put it concisely, an abuse of the rule of law.

Aondoakaa was not arguing that formalism of the rule would prevent justice in
the case before him, nor was he drawing attention to the likely inability to
control the legalistic abuse of power that could lie concealed in it. The
distinctive feature of Yar’Adua’s and Aondoakaa’s abuse-misuse of public powers
was the arrogant absence of the need to assess consequences(they did not
care), in factual terms and in particular if these consequences cause
unjustified damage or unjust benefit.

If the rule of law is meant as submission of power to rules, the abuse of the
rule of law does certainly depend on the infringement of the process by power
assuming and prejudicing outcomes in the narrow pursuit of its own corrupt
interests . Infringements and abuses became second nature. The president’s
reaction was to hide behind what might be termed legal formalism,
where correct judicial process is in train whose outcome was likely to be
unfavourable in the president’s view and gang’s interests.

Aondakaa’s recent forced exit from the his ministerial duties and susequent
grovelling could be interpreted as a sign of President Ebele’s
administration’s determination to fight corruption or arrest the tarnishing of
the judiciary or repair the messed-up legal system. Our perception is that the
departure of Aondoakaa is not really a victory or the triumph of
justice. Financial impropriety is still rife, judges are still intimidated and
Nigerians do not know where they stand on many matters in law.

The law must be accessible and as far as possible be intelligible, clear and
predictable. For long and even in the current periods the law has been
impervious to the legal needs of the poor. It has not acted impartially. It has
not defended the poor and victims of abuse. We insist that the law must
be effectively accessible and fair, so that the citizen can have an indication
that is adequate in the circumstances of legal rules applicable to a given
case. Unless it is formulated with sufficient precision and openness to enable
the citizen to regulate his or her conduct, a norm will find it difficult to be
regarded as ‘law’.

But what sort of judicial system allows the attorney-general as an
adjudicator and a civil servant to stand surety for the accused,
then entering a plea whose devious intention was to lead to the nation
forfeiting right to claw back its stolen wealth. Conflict of interest is
considered a virtue by politicians. In cases, the judge must adduce argument in
support of his conclusions. The question, then, is whether those arguments are
good justifying arguments. A valid deductive argument(as we have seen?), will
be one in which the truth of the premises necessitates the truth of the
conclusion. Judicial outcomes must be measured by the rate at which the country
secures just results, if necessary by convicting proven crooks, and getting our
money back.

A fever perpetual injunctions has suddenly gripped a section of our society
and there is wonder at what they might persist in hiding. Such injunctions are
repugnant and might exceed the power of the court to impose. President Ebele
should question the Justice Buba’s ruling in the Odili’s case and similar
decisions should not be binding. They constitute a violation of the precepts of
the rule of law and the misuse of courts. No such injunction by a public
officer should ever be made perpetual

Yar’Adua’s position or intervention was wrong from the point of law and
legality as it instantly undermined the formal procedural conditions associated
with the legal system. On dubious legality, Yar’Adua in collusion with
Aondoakaa and Kutigi and PDP unethical vultures flagged the red herring of the
rule of law. Aondoakaa’s role was to weaken the state and facilitate the
distortion and dishonest use of law to provide the powerful with advantages
over the weak.

In a very clear case before the nation they ignored the necessary moral and
democratic constraints. Their greed and dishonesty consumed them. So must those
involved in the $12.4million windfall and Halliburton be destroyed by their
actions.

Oshiomole’s eventual victory nineteen months after the governorship elections
in Edo State , stands out as one good sign of hope in the potential for
change in the judiciary and the legal system of Nigeria . This in no small
measure could be placed at the courageous desks of Justice Oriololunshe and
Justice Umaru Abdullahi and Justice Umeadi. Nigerians must support the correct
actions of these judges.

With cast iron and overwhelming evidence, there should be no need for the
lawyer’s dilemma. All that is required was for the system to ensure that the
truth is discovered. In law if you are in hand with or have knowledge that an
offence has been committed and assist the offenders in order to hinder or
prevent his or her apprehension, trial or punishment then you become accessory
after the fact. Aondoakaa, Kutigi, Mrs. Waziri and the government had
full knowledge. They perverted the course of justice in aiding the guilty to
escape responsibility for their misdeeds and thus unquestionably become
accessory to the fact. The guilty must not escape judgment.
What about the children?

Eno Usua
For the Co-ordinating Group

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