Ben Nwabueze, a senior advocate
of Nigeria (SAN), has faulted the June 12 declaration made by President
Muhammadu Buhari.
In a statement, he personally
signed, Nwabueze described the declaration as “unconstitutional, a masterstroke
of mischief and insincerity and a deceitful contrivance”.
On June 6, Buhari announced the
conferment of the Grand Commander of the Federal Republic (GCFR), the highest
honour in the land, on MKO Abiola, while
the investiture held on June 12.
The president also declared June
12 would replace May 29 as Democracy Day.
The development had generated
mixed reactions among Nigerians.
Nwabueze said the president’s
declaration “raises several issues concerning, first, the intention behind it,
whether it is motivated by the public interest or by a political desire to
secure the votes of Nigerians in the 2019 election, especially the votes of
people of the south-west or to sow the seed of division among the members of
the national assembly”.
“A motive of mischief seems
evident on the face of the declaration,” he said, adding: “It is indeed a
masterstroke of mischief and insincerity, a deceitful contrivance, suddenly and
mischievously trumped up to rescue his dying image three years after his
installation as president.”
The jurist said the annulled June
12 election deemed in law not to have taken place, and as such June 12 cannot
be declared Democracy Day and a public holiday.
He also argued that Abiola, the
presumed winner of the election and Babagana Kingibe, his running mate, cannot
be awarded the national honour of GCFR and GCON respectively.
Reacting to the senate resolution
that the Independent National Electoral Commission (INEC) should declare Abiola
the winner of the 1993 presidential election, Nwabueze said the commission
lacks the power to do so.
He said the powers of INEC, as
conferred on it by paragraph 15 of the third schedule to the 1999 constitution,
is “to organise, undertake and supervise” presidential and other listed
elections, and that section 70 of the Electoral Act stipulates that the winner
in an election “shall be declared elected by the appropriate returning
officer”.
Nwabueze’s full statement has
been reproduced below:
In a special press statement
signed by himself personally, which is unprecedented, President Buhari made the
following momentous announcement:
“For the past 18 years, Nigerians
have been celebrating May 29th, as Democracy Day. That was the date when for
the second time in our history, an elected civilian administration took over
from a military government. The first time this happened was on October 1st,
1979.
But in the view of Nigerians, as
shared by this Administration, June 12th, 1993, was far more symbolic of
Democracy in the Nigerian context than May 29th or even the October 1st.
June 12th, 1993 was the day when
Nigerians in millions expressed their democratic will in what was undisputedly
the freest, fairest and most peaceful elections since our Independence. The
fact that the outcome of that election was not upheld by the then Military
Government does not distract from the democratic credentials of that process.
Accordingly, after due
consultations, the Federal Government has decided that henceforth, June 12th
will be celebrated as Democracy Day. Therefore, Government has decided to award
posthumously the highest honour of the land, GCFR, to late Chief MKO Abiola,
the presumed winner of the June 12th, 1993 cancelled elections. His running
mate as Vice President, Ambassador Baba Gana Kingibe, is also to be invested
with a GCON. Furthermore, the tireless fighter for human rights and the
actualization of the June election and indeed for Democracy in general, the
late Chief Gani Fawehinmi, SAN, is to be awarded a GCON posthumously.
The commemoration and investiture
will take place on Tuesday, June 12, 2018, a date which in future years will
replace May 29th as a National Public Holiday in celebration of Nigeria
Democracy Day”.
LEGAL ISSUES ARISING FROM THE
PRESIDENT’S DECLARATION
The President’s Declaration
raises several issues concerning, first, the intention behind it, whether it is
motivated by the public interest or by a political desire to secure the votes
of Nigerians in the 2019 election, especially the votes of people of the
South-West or to sow the seed of division among the members of the National
Assembly in order to scuttle the threat to impeach him or to throw the country
into turmoil or to smear the polity with the taint of illegality. A motive of
mischief seems evident on the face of the Declaration. It is indeed a
masterstroke of mischief and insincerity, a deceitful contrivance, suddenly and
mischievously trumped up to rescue his dying image three years after his installation
as President.
But the question of primary
interest to us here concerns the legal aspects of the President’s Declaration,
which raise three issues of some intricacy , viz (a) whether what he calls the
cancellation of the June 12 election by the then Military Government is binding
legally on him and Nigerians generally, or putting it differently, whether as
President he has the power or competence to overturn or disregard the
cancellation without an Act of the National Assembly repealing it; (b) the
legal effects of the cancellation; and (c) whether the President’s 6th June
Declaration does not require, as a condition for its effectiveness in law, that
the results of the June 12 election should have been officially announced and
Chief Abiola officially declared its winner.
Binding force of the annulment of
the June 12 election by a Decree of the Federal Military Government (FMG)
It is as indisputable that a
presidential election was, as a matter of fact, held on June 12, 1993 as that
the said election was, as a matter both of fact and law, annulled by a Decree
of the Federal Military Government (FMG) Decree No. 61 of 1993. The binding
force, or rather the supremacy, of Decrees of the FMG has a history which it is
appropriate to recall here. The issue of the binding force or supremacy of
Decrees was settled with finality 48 years ago by the Federal Military
Government (Supremacy and Enforcement of Powers) Decree 1970 re-enacted by
Decree 13 of 1984 made by Gen Buhari as the then Head of the FMG. (He, Gen
Buhari, enacted 37 Decrees during his one year rule in 1984 as Head of the
FMG). Even the 1999 Constitution from which he derives his authority as
President to make the June 6 Declaration is the product of a Decree, Decree 24
of 1999 to which that Constitution is scheduled. The 1999 Constitution itself,
in its section 315(4)(d), recognises the annulment Decree 61 of 1993 as an
existing law. So President Buhari has no moral right or justification to
disregard or disdain Decree 61 of 1993 or to do things as please him, as if
that law does not exist.
Nigeria is or is supposed to be a
law-governed state, a state of law where the Rule of Law reigns and governs not
only the lives and affairs of people in society, but also the actions of
government. It is an axiomatic principle, accepted nearly by all, that
democracy cannot meaningfully exist or function without the Rule of Law any
more than it can meaningfully exist or function without Justice. Nigeria itself
cannot exist without the Rule of Law – and Justice too.
Of the two cardinal principles of
governance, the Rule of Law is more fundamental and overriding, since the
Justice talked about is justice according to law. The alternative to the Rule
of Law is anarchy and the ruin of communal life. Respect for the Rule of Law
must not therefore be sacrificed to the need for Justice. We must strive to
pursue and maintain both subject to the more overriding demands of the Rule of
Law.
Nigeria, our dear country, should
not be turned into a state where the President can, in his unfettered whim, set
aside the law or do things contrary to the law; his June 6 2018 Declaration
clearly affronts the law. The annulment of the June 12 1993 election is
admittedly loathesome to millions of Nigerians because of its injustice,
inhumanity and its culmination in the sad death of its presumed winner, Chief
Abiola; its error has been acknowledged and duly apologised for by its author,
Gen Babangida. The annulment should therefore be set aside, but that should be
done in due form of law, i.e. in a manner required by law, meaning by an Act of
the National Assembly, not by the President’s unilateral Declaration unbacked
by an enabling law. The process of getting an enabling law enacted may take
more time than is agreeable, but it is better to follow the process dictated by
law.
Legal effects of the annulment of
the June 12, 1993 presidential election by a Decree of the FMG
The legal effects of nullity are
authoritatively stated by Lord Denning in the Judicial Committee of the Privy
Council in an appeal from the West African Court of Appeal in Macfoy v. United
Africa Co. Ltd [1961] 3 WLR 1405 at pp. 1409 – 1410:
“If an act is void, then it is in
law a nullity. It is not only bad, but incurably bad. There is no need for an
order of the Court to set it aside. It is automatically null and void without
more ado, though it is sometimes convenient to have the court declare it to be
so. And every proceeding which is founded on it is also bad and incurably bad.
You cannot put something on nothing and expect it to stay there. It will
collapse.” (emphasis supplied).
Lord Denning’s statement of the
law on the point was echoed by Oputa JSC in Adejumo v. Ayantegba [1989] 3 NWLR
(pt. 110) 417 at p. 451. Said he:
“If a transaction is void, it is
in law a nullity, not only bad, but incurably bad and nothing can be founded on
it, for having no life of its own, it cannot vivify anything.” (emphasis
supplied).
The legal implication is thus
that an act or transaction which is a nullity is in law regarded as having no
existence or never to have come into existence at all. Both Lord Denning M.R.
in Macfoy v. United Africa Co. Ltd [1961] 3 WLR 1409 – 1410 and Oputa JSC in
Adejumo v. Ayantegbe [1989] 3 NWLR (Pt 110) 417 at page 451 describe it as
amounting to “nothing”. Its non-existence or nothingness arises from operation
of law and does not depend on a court’s decision declaring it null and void,
which only re-affirms and reinforces its inherent nullity. The dictionary
definition is at one with the law on this. Collins English Dictionary defines
“nullify”, and “void” as “having no effect or existence”. “Nullity” is defined
in New Webster’s Dictionary of the English Language as “nothingness”.
It follows that the annulled June
12 election, deemed in law not to have taken place and to have no existence and
therefore to amount to nothing, cannot vivify or give life to anything; June 12
cannot be declared Democracy Day and a public holiday, and Chief Abiola the
“presumed” winner of the June 12 election and his running mate, Amb. Kingibe,
cannot be awarded the national honour of GCFR and GCON respectively based on
their presumed victory in the June 12 election. Both the declaration and the
award are illegal, null and void; the annulment Decree, No. 61 of 1993, an
existing law under section 315(4)(d) of the 1999 Constitution, must first be
repealed – with effect from a date before June 12, 1993 – before the
declaration and the award can legally or lawfully be made. The point being made
here, and on which we insist, is that, as a country committed to respect for
the Rule of Law, the law should be duly followed and not disregarded, as if we
are still in a military dictatorship.
Whether the President’s 6th June
Declaration does not require, as a condition for its effectiveness, that the results
of the June 12 election should have been officially announced and Chief Abiola
officially declared its winner
The repeal of the annulment
Decree, No. 61 of 1993, does not dispose of all the legal issues arising from
President Buhari’s 6th June 2018 momentous Declaration. It is not enough for
the purposes of the law to presume Chief Abiola as the winner of the June 12,
1993 election, whatever that means. To presume something means, according to
its dictionary definition, to “suppose or believe without examination; to
assume beforehand”. The results o the June 12, 1993 election should have been
officially announced and Chief Abiola should have officially declared its
winner to form a legally valid basis for the declaration of June 12 as
Democracy Day to be henceforth observed and celebrated as a public holiday in
the country, and before Chief Abiola can be awarded and invested with the
national honour of GCFR, the highest honour that is reserved for a President of
Nigeria. He cannot be President-elect, which is necessary to qualify him to be
so to be treated, unless the results of the election have been officially
announced and he has been officially declared elected.
The law is clear and emphatic on
the matter. Section 70 of the Electoral Act in force today (June 11, 2018)
provides:
“In an election to the office of
the President or Governor whether or not contested and in any contested
election to any other elective office, the result shall be ascertained by
counting the votes cast for each candidate and [the candidate that satisfied]
the provisions of sections 133, 134 and 179 of the Constitution……..shall be
declared elected by the appropriate Returning Officer”;
The word “declared” is italicized
to emphasise that a candidate “deemed duly elected” under section 179 of the
Constitution must formally be “declared elected by the appropriate returning
officer” under section 70 of the Act.
The National Assembly has
proposed that the Independent Electoral Commission (INEC) should now formally
announce the results of the June 12 1993 election and declare Chief Abiola its
winner. This proposal raises the question whether INEC, constituted under the
1999 Constitution (section 153), has the competence to announce the results of
an election that took place 25 years ago, and declare a candidate under it the
winner, so as to constitute him President-elect. The power of INEC, as
conferred on it by paragraph 15 of the Third Schedule to the Constitution, is
power, among other things, “to organise, undertake and supervise” presidential
and other listed elections. By its terms, the power is power to organize,
undertake and supervise elections in the present and in the future; it does not
authorize or enable the Commission to do anything in relation to an election
that took place in the past – 25 years ago – and organized and conducted by a
differently constituted Electoral Commission. It may be that under the residual
clause of paragraph 15 above authorizing INEC to “carry out such other
functions as may be conferred upon it by an Act of the National Assembly”, the
Assembly may make a law enabling INEC in the behalf. Even so, the problem will
still remain as to how the provision of section 70 of the Electoral Act is to
be complied with, having regard to the specificity of the words “shall be
declared elected by the appropriate Returning Officer”; the reference is to the
particular returning officer involved in or who took part in the conduct of the
particular election.
President Buhari’s 6th June 2018
Declaration disdains the law of the land in other respects
The sacroscanctity and supremacy
of the Rule of Law, as a principle in the government of society, need to be
reinterated. Although not expressly enshrined by name in our Constitution, as
is done in some of the modern constitutions in the world, like the
Constitutions of Romania and Bulgaria and Czechoslovakia’s Charter of
Fundamental Rights and Freedoms, all three adopted in 1991 after the collapse
of communism in the 1989 – 90 world-wide democratic revolution, the Rule of Law
is embodied and incorporated in our Constitution as an inarticulate major
premise, to borrow the pithy phrase of the great Justice Oliver Wendell Holmes
of the U.S. Supreme Court. Thus, the supremacy of the Constitution, as provided
in its section 1(1), enures, by extension, to the Rule of Law, as incorporated
in it as an inarticulate major premise, overriding any action or declaration of
government that is inconsistent with the principle: section 1(3).
The question again arises whether
the posthumous awards of the national honours of GCFR and GCON to Chief Abiola
and Chief Fawehinmi respectively accord or are consistent with the law of the
land – National Honours Act. The Act does not, by its express provisions,
authorize posthumous awards, nor do those provisions give any indication that
they contemplate posthumous awards. The indication is indeed to the contrary;
it (the indication) comes from the provision that “a person”, meaning a living,
not a dead person, “shall not be eligible for appointment to any rank of an
Order unless he is a citizen of Nigeria”, and that “a person shall be appointed
to a particular rank of an Order when he receives from the President in person
at an investiture held for the purpose (a) the insignia appropriate for that
rank; and (b) an instrument under the hand of the President and the public seal
of the Federation declaring him to be appointed to that rank”.
The words “when he receives from
the President in person” exclude posthumous awards, a view that derives support
from the fact that no posthumous award had ever been made in the past to any
one before the awards to Chief Abiola and Chief Fawehinmi. There is, however, a
provision in the Act that seems to give a lot of leeway to the President. It
says : “The President may, by warrant, make provision for the award of titles
of honour, decorations and dignities”. It may be that posthumous awards are not
authorized by the Act as a matter of policy decision. If so the Act needs to be
amended to change the policy.
President Buhari could not have
been more disdainful, and more careless, he could not have made a greater
mockery, of the Rule of Law than by his announcement on June 6, 2018 of the
decision of the Federal Government that “henceforth June 12 will be celebrated
as Democracy Day”, knowing, as he well does, that May 29 is enacted by law, the
Public Holidays Act, as Democracy Day, and that that could not be changed to
June 12, except by amendment of the Act, not by mere presidential Declaration;
and that his wishes, intentions and whims, however pure and benevolent, are not
law, as in the days of the absolutist military dictatorship when laws could be
made simply by word of mouth, later to be put in written form by Decree or
Edict. It is incredible that, knowing all this but still believing himself to
be an absolute ruler, he went ahead to organize the farce of commemoration
ceremony on June 12 at the Banquet Hall of the Presidential Villa. His
perception of himself as absolute ruler is antithetical to constitutional
democracy, and constitutes a danger to the country. He should be made to shed
that perception of himself.
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