(Vanguard of Sunday, August 31, 2008)
I was at Abuja during last week to give a paper at the annual general conference of the Nigerian Bar Association. Wednesday was the day set aside for various interest groups in the association to attend to their areas of interest. Mine was the media and I spoke at the Lawyers in the Media forum.
When earlier they asked me to pick a topic of my choice and I was informed that our former Chief Justice of Nigeria, Alhaji Modibo Alfa Belgore, was going to chair the occasion, I decided it was a serious enough forum to make a statement in respect of an area which the legal profession has never been very loud about, for obvious reasons. That area is chapter 2 of the constitution elaborately titled Fundamental Objectives and Directive Principles of State Policy.
Courts are asked not to pronounce on the performance or non-performance of the duties recorded for public officers to perform. But the press is told to monitor on behalf of the people what these officers are doing. I thought that with the unparalleled height we have elevated indiscipline in public life, I should use the opportunity to address, once again, the need for the judiciary to be more adventurous in the interpretation of the Constitution so that we can save a democracy that is crashing so fast we refuse to see the signs.
My decision to speak out in the presence of some of the accomplished legal icons in the land was even further powered by what had been going the rounds in respect of new packages for public officers announced when the people are groaning under grave denials and deprivations blamed on lack of funds!
The presentation was in seven parts. Part 1 summarized the national brief we believe the Constitution is. In Part 2, attention was drawn to the contents of chapter 2 and the role the media must play in fulfilling the dreams contained in them. In Part 3, I tried to establish the non-justiciability of the chapter not because of the reasons given by Mamman Nasir, then President of the Court of Appeal in Archbishop Okogie v Attorney-General of Lagos State (1981) 2NCLR 332, but because of the direct constitutional provision that the chapter is not justiciable, a provision which gives the press a role in governance.
In Part 4, I discussed section 308 which grants immunity to 74 personages in our arrangement, and recalled that the Supreme Court said in Gani Fawehinmi v Inspector-General of Police & 2 ors (2002) 7NWLR (Pt 740) 670 that the protected officers can be investigated. I drew attention to an area that seemed to be ignored in making claims to an iron-cast protective armour which I later argued is clearly not there and can therefore not be forced into there.
In Part 5, I presented a case for handling those who have the protection provided by section 308 but who must be treated in the way provided by sections 172 and 209 of the Constitution, being public officers as defined, and therefore subject to the clear provisions of the Fifth Schedule to the Constitution. In Part 6, I discussed the role of codes of conduct in professions and their place in the life of the public service.
I showed clearly that those listed to be bound by the Code of Conduct under the Fifth Schedule to the Constitution must be so bound and that interpreting the law in any other way is toying with the wish of the people that those they have given the mandate must be servants subject to discipline, not slave masters above the laws of the land. I therefore called on our courts to fight to be courts of law rather than instruments which those who have accessed political power can manipulate.
Part 7 was the concluding part in which I called on the media and the courts to work together to save our democracy if we must prevent the predictable outcome of the blatant abuse of public office which past rulings on the protection of those covered by the immunity clause obviously encourages. The presentation will soon be published under the title of Taming the Monarchs.
But let me share with you the concluding part which was a call to arms. I said: “All the issues raised hereinabove constitute a call for the Nigerian Bar Association, through Lawyers in the Media to show more interest in seeking ways to ensure that the democracy highway we have chosen to walk and which must be established on social justice is strengthened not only through the enjoyment of rights reflected in chapter 4 of the Constitution but also through the performance of duties settled in chapter 2.
The call is more urgent now that we have established a trend for making those who swore to serve to do what they like because of a narrow interpretation associated with words in the Constitution. We should be bold enough to hold that prosecution in the courts of law is not and cannot be the same as prosecution in the Code of Conduct Tribunal… Chapter 2 of the constitution is non-justiciable but that does not make it non-implementable.
Lawyers in the Media must take special interest in the chapter and wear the hat of media men to see clearly that duties and rights are two sides of a coin; that, like in our traditional institutions, were we to decide whether people should eat before they work or work before they eat, there would be no hesitation to choose the latter. Duties are settled for performance by those who take office and they are protected in the performance of those duties.
But the four located in section 308 as protected from professional gadflies should not be made plunderers of our national till under cover of immunity provisions which we seem to be unwilling to interpret either in the clear letters of its provision or in the spirit in which the constitution was fashioned. Instead of people quitting office because they are accused of wrong-doings, we have a whole generation of public office-holders who refuse to be bound by the oaths they took before they assumed office and even demand that they be protected from looting the treasury.
The mass media have a duty, aside of the constitutional one to monitor governance on behalf of the people, to leave no stone unturned and no turn unstoned in haunting down public officers who refuse to be bound by their oaths of office. We must accept that their tenure of office is protected but that is when they perform the functions of the office.
“The Nigerian Bar Association and other bodies that have etched their names in gold for fighting to entrench civilized behaviour in governance, should attend urgently to some major lapses thrown up by our experiment with democracy. One area is getting the National Assembly to, in line with the powers they have under the Exclusive Legislative List, strengthen the disciplinary arrangements in the Constitution that would enable the effective taming of the 74 untouchable monarchs.
The material is already there in the Fifth Schedule, but the current legal gimmicks should be attended to so that we leave no loopholes for those who want courts to tread in areas they have no business in. The Supreme Court can quickly come to the rescue through pronouncing on the obvious, which is that the Tribunal is no part of the judiciary and remains a body to call public officers to order.
But for the avoidance of doubt, certain changes are needed in the paper work that should reflect the status of the Code of Conduct Bureau and Tribunal as instruments for moderating discipline in public service. The Code of Conduct Bureau must have a strong assets investigation department that should work closely with the ICPC and EFCC to ensure that what public officers claim to have is what they have, and that what they have is earned through means that are verifiable and that do not breach the oath of the office they took.
The Code of Conduct Tribunal itself should be strengthened and the number of judges increased. There are three judges at present and the work load that our indiscretions generate should ensure that we have the manpower to deal with them. The press itself has access to training in the universities but the content of the qualifications we take out of those institutions should be relevant.
“There is a national call on the media to be day and night megads for the people, and the areas that are assigned for performance of duties are areas the universities must be interested in. Many other areas will open up as we walk the democracy highway, and it is the seriousness with which we tackle such problems that will give us pass marks as those willing to climb the ladder that takes people to a realm where they discover that there is more joy in giving that in taking; in serving than being served; and that giving is the Law of God, and taking, the misleading brief of Satan the tempter”.
The reactions the paper generated showed clearly that people are worried by the way we exercise the power which our people gave us through the constitution to serve them. We have enslaved them instead. The tons of money we pounce on without a care in the world is not money from the taxes we pay.
When I watch us propose fat allowances for ourselves and refuse to make governance a service instead of the business we have sentenced it to, I recall with trepidation what Gen Muhammadu Buhari once said at a meeting of his campaign council in March, 2007: “How many of you have thought of a Nigeria without oil for four years”?
At the rate we are going, when the wells in the Niger Delta dry up or it becomes impossible to access that oil we all gluttonously depend on, we won’t stand the pangs of hunger for six months! Meanwhile, we continue to eat the future in the present, establishing money-guzzling structures that do not add value to governance. Pity.
(Pages 147-152 of Vol. 3 of Democracy Watch, A Monitor’s Diary by Tony Momoh – OUT SOON).