Letter To Buhari (2): Other Constitutional Breaches and Ill-Conception Of $2.1 Billion Loan For Northeast Reconstruction
(Democracy, Civil Liberties & Rule of Law, Onitsha Nigeria, 28th July 2015)-Another breach of Sections 13, 14 (2) (a), 14 (2) (b) and 14 (2) (c) of the 1999 Constitution by Your Excellency is Your Excellency’s perceived unfriendly disposition towards the Southeast in particular and the South-south, to some extent; on account of their choice of voting in the March and April 2015 polls. Your Excellency’s recent public comments, policies and actions are a clear case in point. Attempts by Your Excellency’s media aides to glorify them did not fly.
As Your Excellency may know, no matter how poor or insignificant in number people may be, their values including social identities must be respected and protected at all times. Anything in the contrary is disastrous. This explains why social value oriented conflicts are globally intractable. The right of any section of the country to choose its preferred political leaders democratically irrespective of candidates or party affiliations is so fundamental that it amounts to a declaration of war when questioned or used as a governance vendetta tool. In all, Your Excellency’s public comments, policies and conducts under reference, discourage “Nigerianess” and encourage “regional self determination”. The sum total is fundamental derogation from principles of constitutional and pluralistic democracy provided under the 1999 Constitution.
By Section 14 (3) of the Constitution, “the composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in the Government or any of its agencies”.
(4) The above constitutional provision has been presidentially and constitutionally observed in gross breach. For instance, Your Excellency has since 31st May 2015, made over seventeen (17) government appointments, most important of which was the appointment of new security service chiefs. The lopsided and unconstitutional appointments in which the Southeast or core Igbo Geopolitical Zone was totally excluded are the following: (Service Chiefs), Chief of Army Staff, Major-Gen T.Y. Buratai – Borno State, Northeast Nigeria, Chief of Defense Staff, Major-Gen Abayomi Gabriel Olanishakin- Ekiti State, Southwest Nigeria, Chief of Air Staff, Air Vice Marshal Sadique Abubakar -Bauchi State, Northeast Nigeria, Chief of Naval Staff, Rear Admiral Ibok-Ete Ekwe Ibas -Cross River State, South-South Nigeria, Chief of Defense Intelligence, Air Vice Marshal Monday Riku Morgan- Benue State, North-Central Nigeria, National Security Adviser, Rtd Major-Gen Babagana Monguno -Borno State, Northeast Nigeria, Director General of the Department of the State Security Service (SSS), Mr. Lawal Ahmed Daura (a retired director)-Katsina State, Northwest, Commandant General of the Nigerian Security & Civil Defense Corps (NSCDC), Mr. Abdullahi Gana Muhammadu –Niger State, North-Central, and the Inspector General of Police (IGP), Mr. Solomon Arase- Edo State, South-South (appointed by former President Goodluck Jonathan).
Other lopsided and non armed forces office appointments made by Your Excellency without recourse to above constitutional provision are: Mrs. Amina Zakari, Acting Chairman of INEC, (Jigawa State, Northwest), Mr. Baba Haruna Jauro, acting Director General of the Nigerian Maritime Administration & Safety Agency (NIMASA), ( Yobe State, Northwest), Mr. Mordecai Ledan, Head of the Department of Petroleum Resources (Kaduna State, Northwest), Mr. Ahmed Idris, Accountant General of the Federation (Kano State, Northwest), Lt Col Mohammed Abubakar, Aide De Camp (ADC) to Your Excellency, (Kano State, Northwest), Mr. Usman Abubakar, Chief Security Officer to Your Excellency (CSO), (Northwest), Mr. Lawal Abdullahi Kazuare, State Chief Protocol Officer (Northwest), Mallam Garba Shehu, Senior Special Assistant, Media & Publicity to Your Excellency, (Kano State, Northwest) and Mr. Femi Adesina, Special Adviser, Media & Publicity to Your Excellency, (Osun State, Southwest). In all, of the seventeen office appointments made by Your Excellency, as highlighted above, Northwest zone or Your Excellency’s zone got nine, Northeast or Your Excellency’s sister zone got three, Southwest got two, North-central got two, South-south got one excluding the IGP and the Southeast got nothing.
By Section 36 (8) of the Constitution of the Federal Republic of Nigeria 1999, “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”. By Section 36 (12), “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offense unless that offense is defined and the penalty is therefore prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any other subsidiary legislation or instrument under the provision of a law”.
(5) The fundamental constitutional provisions above have been presidentially observed in gross breach with respect to recent threats of arrest, invasions of residences and detentions without trial of a number of popular citizens particularly those that served under the immediate past government of Dr. Goodluck Jonathan. Your Excellency’s presidential wrath visited against the trio of Col Mohammed Sambo Dasuki (rtd), former NSA, Mr. Gordon Obua, former CSO to ex President Goodluck Jonathan and Col Bello Fadile (rtd) are a clear case in point. The roles of the Department of the State Security Service (formerly NSO under Your Excellency’s maximum military regime, which was scornfully referred as “Gestapo in Black” by its critics) are not only lawless and unconstitutional, but also a fundamental derogation from the principles of limited government and rule of law.
Other Constitutional Breaches & Governance Blunders:
(6)Mrs. Amina Zakari’s Tenure At INEC: By clear provisions of the 1999 Constitution and civil service rules, Mrs. Amina Zakari as “the acting Chairman of the Independent National Electoral Commission (INEC)” is occupying the position illegally and unconstitutionally. This is because her position as “a National Commissioner at INEC” inarguably expired on 21st July 2015. By law, Your Excellency’s powers as the “appointing authority” in “acting capacity” of any federal or federation executive body recognized or created by Section 153 of the 1999 Constitution, are not as broad or wide as Your Excellency’s powers as “appointing authority” in “substantive capacity”.
In appointing a person in “acting capacity”, Your Excellency is merely required by the Constitution to do what is obvious (confirming the next most senior person in that position to act in acting capacity pending substantive appointment and senatorial confirmation of its substantive head ). Your Excellency’s “acting capacity appointment” powers under the Constitution also cover bodies created by Section 153 of the Constitution including the Chairman of INEC. For instance, in the case of appointment of the Chief Justice of Nigeria in “acting capacity”, Your Excellency is restricted to the appointment of the next most senior Supreme Court Justice as “acting CJN”. But in appointing a substantive CJN, Your Excellency can appoint any legal practitioner of fifteen years standing including a private legal practitioner, on the recommendation of the National Judicial Council (NJC) subject to confirmation of such appointment by the Senate.
In the case of Mrs. Amina Zakari, who publicly admitted that her tenure as a National Commissioner expired on July 21st 2015, her appointment as “acting Chairman of INEC”, is unconstitutional, unlawful, illegal, null and void. As a National Commissioner whose tenure has expired, she has not been re-appointed and re-confirmed by Your Excellency and the Senate in accordance with Supplementary Section 14 (3) (a) of Part 1 of the Third Schedule to the Constitution. Her predecessor (Prof Attahiru Jega) acted in accordance with the law and convention when he handed over to next most senior National Commissioner ( Ambassador Ahmed Wali) whose tenure was still running; only for Your Excellency to direct otherwise in default and observation of the 1999 Constitution in breach. To emerge substantively as Chairman of INEC, Mrs. Amina Zakari or any other person to be appointed must have his or her appointment substantively done in accordance with Section 154 (3) of the 1999 Constitution, which includes senatorial confirmation and consultation with the National Council of State.
Similar controversy played out in the presidential appointment of Mr. Lawal Ahmed Duara as the Director General of SSS as he was said to have been recalled from retirement and made new DG of SSS. If true Your Excellency, then it is not only saddening and shocking, but also a fundamental derogation from due process and the 1999 Constitution. Confusions have also trailed the appointment of acting Director General of the Nigerian Maritime Administration & Safety Agency (NIMASA), leading to emergence of Mr. Calistus Nwabueze Obi and Mr. Baba Haruna Jauro in four days as acting DGs. The said confusions played out following Your Excellency’s “probation” and “reprobation” in the course of exercising Your Excellency’s appointing powers with respect to “acting capacity”.
World Bank Loan Of $2.1 Billion For Reconstruction Of The Northeast:
(7)Your Excellency’s initiation of a process to secure another harmful loan of $2.1 Billion for “reconstruction of the Northeast devastated by Boko Haram insurgency” is seen by our organization as “a white elephant project”. The loan, if secured, will continuously and harmfully swell the already bloated loan profile of the Federal Republic of Nigeria, which presently stands at over $65 Billion including total external loan of over $11.5 Billion (official figures).`
The reason for the loan (reconstruction of Boko Haram violence affected Northeast Nigeria) is very laughable, ill-conceived and ill-timed. This is because effective reconstruction of war-torn areas globally including Northeast Nigeria does not take place when the hostilities have not abated. In the lexicons of criminology and peace and conflict resolution, there is nothing like “reconstruction in raging conflict”, which best describes the present loan procurement process. What exists is “post conflict reconstruction” followed by peace building. What best suits the Northeast now is “conflict resolution” and not “reconstruction in raging conflict”. Specifically, post conflict reconstruction is followed by post conflict transformation, which, in turn, is followed by peace building; and for these to take place, there must be cessation of conflict or hostilities. Conflict cessation should, first of all, be followed by “DDDR”-demilitarization, disarmament, demobilization and re-integration”, before post conflict reconstruction can be effective and successful.`
Also, borrowing for post conflict reconstruction is out-fashioned globally and has been replaced with “post conflict reconstruction/peace building international donor conference (s)”, during which friendly rich nations, foundations, development bodies and humanitarian agencies are gathered to raise material, in-kind (technical) and financial assistance to carry out the reconstruction project. Cases in point are Rwanda, Sierra Leone and Liberia. Our position is that Your Excellency should set aside “reconstruction in raging conflict” loan procurement proposal and concentrate majorly on conflict resolution by confrontation (known to international laws of war) or peaceful means.
Finally, Your Excellency, it is our appeal that Your Excellency should at all times take a recourse to the provisions of the 1999 Constitution in all Your Excellency’s presidential policies and actions. This is what we meant by “A Call For The Return Of Constitutional & Procedural Democracy In Nigeria (under Your Excellency)”. Outside Your Excellency’s Holy Koran, Your Excellency must at all times regard the 1999 Constitution as Your Excellency’s second most reading book and ensure that its provisions are upheld and applied at all times. It is also extremely important to inform Your Excellency that without the 1999 Constitution that created Your Excellency’s presidential post in Section 130, Your Excellency’s presidency would have been an act of impossibility.
For: International Society for Civil Liberties & the Rule of Law (Intersociety)
Emeka Umeagbalasi, B.Sc. (Hons) Criminology & Security Studies
Board Chairman (+2348174090052 (office)
[email protected], [email protected]
Chiugo Onwuatuegwu, Esq., (LLB, BL), Head, Democracy & Good Governance Program
Uzochukwu, Oguejiofor-Nwonu, Esq., (LLB, BL), Head, Campaign & Publicity Department
Obianuju Igboeli, Esq., (LLB, BL), Head, Civil Liberties & Rule of Law Program