(Vanguard of Sunday, November 18,2007)
When the going gets tough… is part of the title of a book I read some years ago. The other part of the long title is that The Tough Get Going. Shooting directly from the hip, this means that life is a race in which only the fittest survive. The weak and the weakened are eliminated. Please don’t let’s get into the argument as to why they are weak or why they are weakened and arrive at the lazy conclusion that God ordained it.
So in my stubborn posturing that God only ordained sowing which we are empowered equally to do, but must bear the consequences of our acts, I have been thinking of a third set of people who can be born when the going gets tough. They were not tough when the going started getting tough. Nor were they eliminated by the going that went tough. They were born by the going that got tough, and they confronted the challenges that were thrown up by the going that got tough. That is that they did not throw up their hands and say God dey. They had a motto, Never Say Die.
Examples of those who refuse to give up because the going had gotten tough are all over the world. The Palestinians were in Gaza Strip for 25 years, being given only biscuits and blankets and no one noticing what they were saying, what they were going through. These children of deprivation, of denial, moved out of their prison camps and took to airports, airstrips, bus and train stations, and started making loud deadly noises in the language the world seemed to understand. We are all witnesses to the fact that the world has never been the same again and may never be unless the language of communication changes.
Even here in our home, in the Niger Delta, what have we not done to emasculate a people whose only fault is that God gave them land pregnant with oil? But by depriving them of the surface of the land through laws and that are discriminatory in the extreme, we relegated them to a status of those sentenced to die. The going had gotten tough but they were not tough enough to get going. It would however be a question of time before the deprivation would toughen them, thanks to Adaka Boro who seized a patch of land in the old Rivers State, declared a Rivers Republic and held ground until he was arrested, tried for treason and would have perhaps rotten in jail, but for the civil war which saw him being released to be part of the Rivers Battalion that helped to recover the area for federal troops because they knew the terrain.
The Senate of the National Assembly (God bless them) had the sense of going there the other day and visiting the desecrated land that has been laying the golden egg. Many of them held back tears. But the people had a choice to be weak and be weakened. Many were, and many still are, but some, and it is always a few who start the ball rolling, took up the challenge confronted by Adaka Boro in the 60’s. I have not read details of the budget, but if it is true that attention is being focused on the Niger delta, then we are taking one small, very small step to resolve the problems; though nothing short of a totally restructured Nigeria that will witness decongestion of the political space in which most of the powers at the centre will be downloaded to the regions will make sense.
But my concern is not the Niger Delta or any other trouble spot on earth. They are only pegs to hang activism on. Activism is born on necessity, of some pressing need. It may be positive or negative, as negative as what President Obasanjo did and as positive as what the judiciary is doing; but the end is that you got done what you set out to do. What Obasanjo did may have been negative when he reached out to outlandish weapons to dethrone the governors of Bayelsa State, Oyo State, Ekiti State, Plateau State and Anambra State.
He uses the same stick to size the local government allocations to Lagos State, entrench himself as the tin-god of the PDP and frustrate Vice President Atiku Abubakar from seceding him. The latest case of activism is what the Supreme Court in particular and indeed the judiciary had been doing – looking matters straight in the face and pronouncing death where the crime is death and the sentence is death. The truth of the matter is that law makes sense only when its end is justice. And one method of accessing justice is through the rule of law.
Once you have opted for that route, the route of the rule of law, you have no choice but to be held to account when you want to reach out to justice outside your chosen route, outside the rule of law. Since 1999 we chose to access justice through the route of the rule of law, and chose democracy as our way of governance in which those in office get there through the mandate we give them, on other way being available, nor acceptable. If we deviate from the rules and compromise those who are to interpret the law, then you need some activity to restore order.
Many will not deny that although many of us had been weakened by the boldness in which we deviate from our procedure to access justice, some others were toughened by that adventure and were not going to allow sleeping dogs to lie. But the judiciary, even this late in the day, came to the rescue – through restoration of due process procedures which many see as positive legal activism.
There is a lot of literature on legal activism. But the judges of the Supreme Court do not have to be revolutionaries to be activists in the sense of being progressive interpreters of the Constitution. They should bend over backwards, and they seem to be doing just that, to save our democracy. They have no choice. Of the three arms of government, the judiciary is the only one that has credible qualifications for performing at its post. You cannot be a judge without being qualified as a legal practitioner for ten year.
But what you need to be our President is the equivalent of a school certificate and age 40. It is the same educational qualification you need to be the President of the Senate or Speaker of the House of Representatives or the House of Assembly or the chairman of a council or even a councilor. Our judges are showing that they can be toughened when the going gets tough. The decisions they have come out with in answer to the arbitrary and mindless manipulation of the rules settled for walking the democracy highway are commendable. I will suggest that they go further. Not that they should not look at the laws, but that they must be more deliberately wide open in interpreting them.
I for example have no problem with the decision in the Amaechi case. I was excited by the arguments of Prof. Ben Nwabueze, Chief Gani Fawehinmi and Prof. Itse Sagay, all of them senior advocates of Nigeria. They are all looking at the elephant and reporting what they see. While Fawehinmi and Nwabueze are giving a clear picture of how the elephant looks, that is reporting the news and no more, Prof. Sagay is telling us, and you can’t fault him, that blood flows in the body of the elephant and that it has a life it leads. Yes, Amaechi did not stand any election but the one the people know had to stand election as governor of Rivers State is Amaechi. They voted for him in the primaries.
On the day he was to collect the flag, someone told him he could not have the flag because he had a problem with the EFCC. Such a scenario played itself out in Edo State. Elder Ogbesia thought his nomination was settled. But information came from above that he could not stand because he had some questions to answer from EFCC. Ogbesia, to my knowledge, has not been asked any questions by the EFCC. If he could not qualify to be governor of Edo State, why did he qualify to be senator of the federal republic representing Edo Central? These are few of the laws Obasanjo took into his hands and appied as he deemed fit.
He even opted to die than lose election, and he ensured he did not die by getting Prof. Maurice Iwu to do his bidding. As far as I am concerned, the one who stands election is the political party. If it is the individual, why must a political party sponsor him? Why can he not stand as an independent candidate? With the recent configurations, can anyone win an election as a person? All the allegations about rigging had never been hung on thumb printing of photographs of individuals but the symbols of the political party! It is the party people vote for, and it is the party symbol we all were pointing to when we went on voter education countrywide. Were I to choose between the one person the people voted for to represent them at a competition and one that was pushed in as replacement without clearance from the people, I would not hesitate to say that the one nominated by the people is the one who won the election.
If nothing else, what the Supreme Court has done with Uba/Obi and Omehia/Amaechi is a subject lesson in order and discipline. No one will in future constitute himself into a High Court, Court of Appeal and Supreme Court by seizing the investigations of EFCC and disqualifying people without the requisite order of court. And notice has also been adequately served on EFCC that it has no business taking its findings to anyone outside the court. We are still waiting for the arraignment of 31 governors that Ribadu said would be taken in immediately after change of batons in May 2007. The area of immediate challenge for the Supreme Court is the opening up the space in interpreting section 308 which people claim places the four sacred cows (president, vice president, governor and deputy governor) above discipline.
I have read that section 308 many times and I have found that everyone reading it stops at protection from arrest and prosecution and service of process. No one goes to the limitation on the immunity cover, that you are covered during the period of office, and only when you perform the function of the office. If the disciplinary body, that is the Fifth Schedule, created by the Constitution and totally standing on its own and not in any way part of the judicature cannot ask one claiming to be covered from immunity why he stole public funds or breached the terms of the code which he swore to defend and uphold while in office, how can such a person be deemed to be subject to the laws of the land? Our democracy was crumbling, but the Supreme Court, indeed, the judiciary has come to the rescue. If they allow themselves to be intimidated, then goodbye to law and order in this country.
(Published in Vol. 2 of Democracy Watch, A Monitor’s Diary by Tony Momoh, pages 432 – 436; Lagos, 2008).