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Interpreting Justice In Ekiti State: The Law And The People
By
E-11
October 25, 2006
The recent impeachment of Mr. Ayo Fayose
as Governor of Ekiti State and his Deputy, Mrs. Abiodun Olujimi has elicited a
lot of emotive and varied comments from across the nation. While democracy
guarantees the right to hold and disseminate opinion, many of those whose views
have been widely reported in the media did not seem to have dispassionately and
objectively looked at all the issues involved. A lot is being said about the
constitutionality or otherwise of the process and the resulting actions.
Regrettably, very little consideration seems to have been given to the interest
and welfare of the people of Ekiti State who in the final analysis are the
beneficiaries of whatever good, or victims of whatever ill results from the
action.
However, it has become necessary to
appraise the whole process and review the opinions expressed especially by
influential sections of the society whose comments are usually respected.
Ultimately, whatever views are expressed must give due consideration to the need
of the people for security, welfare and good governance which in the case of
Ekiti was flagrantly abused and distorted.
Law and Justice
Without going into too much
technicalities, lawyers will readily proclaim that the law exists both in letter
and in spirit. While the letters provide a uniform framework and guidance for
those who interpret and apply the law, the spirit is the bedrock of the justice
that derives from the interpretation and application of the law, especially in
its qualitative context. It will therefore be reasonable to expect that a
judicial officer interpreting the law will give adequate consideration to both
the letters and spirit of the law. After all, while emphasizing this point, it
was the late eminent lawyer, Chief Rotimi Williams who once offered the
illuminating opinion that a judgement may not be enforceable, and in fact
becomes inherently unenforceable if it is devoid of justice.
The foregoing raises the first poser on
the Ekiti circumstance. Where the principal officer responsible for the
interpretation of the law, in this case, the former Chief Judge of the State,
Justice Kayode Bamishile, decides to willfully and callously subvert the spirit
of the law, where is the place for justice?
Act One:
Following a notice of impeachment, Section
188 (5) of the constitution requires that the Chief Judge of the State "shall at
the request of the Speaker of the House of Assembly appoint a Panel of seven
persons who in his opinion are of unquestionable integrity, not being
members of any public service, legislative house or political party, to
investigate the allegation as provided in this section."
The provision puts a great deal of trust
on the integrity of the Chief Judge and assumes that, in deference to his
calling and oath, he would uphold both the letter and the spirit of this
provision. It is thus reasonable to assume that it was for this reason that the
framers of the constitution did not explicitly provide any avenue for remedy in
the event a Chief Judge chooses to subvert either or both the letters and spirit
of the law thus perverting justice. It is equally reasonable albeit regrettable
to hold such Chief Judge that willfully treads this path of desecration of his
sacred oath responsible for whatever mud is subsequently splashed on the
immaculate silk linen of the judiciary.
Any Real Options for the House of
Assembly?
There have been arguments to the effect
that the House of Assembly ought to have still gone ahead to appear before the
Bamishile Panel and express its objection to the Panel on the ground of
questionable integrity of its members. If we apply strictly the letters of the
law, the Chief Judge would be under no obligation whatsoever to accede to the
prayers of the House since the constitution clearly makes the judgement on
integrity the sole discretional prerogative of the Chief Judge. The risk for
the House of course is in the provision of Section 188 (8), which states, "Where
the Panel reports to the House of Assembly that the allegation has not been
proved, no further proceedings shall be taken in respect of the matter." Thus
no matter the protestation from the House of Assembly, the impeachment process
terminates and the defense, in this case Ayo Fayose and his Deputy, triumphs
with a simple report from the Panel indicating that the allegation has not been
proved. The House cannot go to court to seek redress as Section 188 (10)
clearly states, "No proceedings or determination of the Panel or of the House of
Assembly or any matter relating to such proceedings or determination shall be
entertained or questioned in any court." We need to bear in mind that the Panel
need not contain any legal personnel and can therefore write their report in
simple non-legal English!
Some say the House could have sought the
assistance of the National Judicial Council to resolve this problem. Here the
House would be seeking disciplinary action against the erring Chief Judge that
subverts the spirit of the law, and also a reversal of his choice of Panel.
They will be looking forward to taking full advantage of some of the provisions
contained in the Third Schedule Part I (I) of the constitution. Whatever relief
may come their way, it still requires implementation in accordance with Section
292 (1) (a) (ii). As Mr. President correctly stated in his emergency
proclamation, the House is merely a "consenting authority" to an action to be
initiated by the Governor. It is not likely a Governor under the threat of
impeachment and who has succeeded in forging a preemptive alliance with the
Chief Judge to subvert the impeachment process would ever initiate such a move.
No reasonable person can be expected to undertake any act that would be
injurious to his own cause unless possibly if such an action is guaranteed to
help prevent a greater or worse injury. The outcome remains the same even if
the National Judicial Council on its own decides to intervene within the seven
days the Bamishile Panel had to sit and come up with a decision. Even where the
House felt it could save the Ekiti judiciary the mess it now found itself by
inviting Bamisile to supply it the CVs of those he appointed Bamisile pointedly
wrote that he would not do so.
The Logjam Comic Side Show
The Olujimi show clearly manifested a
duplicitous attitude of the Federal Government to the whole process, especially
one that clearly revealed a hidden agenda. First she appeared before the Panel
set up by Justice Aladejana (Aladejana Panel), which indisputably signifies her
recognition of the Panel, and therefore a readiness to abide by its decision,
which has constitutionally, has no room for appeal. Many legal experts expressed
the view that her appearance should have served as mitigation for whatever might
have been her shortcomings and should therefore have been left off the hook in
some kind of compromise deal. First this cannot be fundamentally correct, as by
the same reasoning, if Fayose had appeared, he should have been left off the
hook. Any reasonable person will notice the inherent fallacy in this argument.
There are also significant ethical and moral issues that would have constituted
eternal stain on Ekiti people if Olujimi had been freed from impeachment apart
from the questions it would have raised about the competence of EFCC. The
important issue to note is that it is the House of Assembly that has the sole
prerogative, constitutionally, to determine what constitutes "gross misconduct"
in this instance. Section 188 (11) states: "…. or a misconduct of such a nature
as amounts in the opinion in the House of Assembly to gross misconduct". We
hope the contradictions in the constitution are becoming apparent!
Olujimi was able to challenge the House of
Assembly because she was encouraged to do so by the Federal Government and some
elements in PDP who found a rich honey pot in Equity. It worthy of note that
prior to the impeachment Olujimi had literally been rescued from Fayose's grip
and bundled to Abuja to see Mr. President. When it was convenient for Mr.
President he released her to the streets of Ado Equity to lay claim to the seat
of the governor. The wish to have an emergency rule declared in Ekiti had been
demonstrated earlier. The panel set up by Justice Aladejana was sworn in on a
Thursday. On Friday morning the panel promptly commenced its sitting with the
officials of EFCC and others appearing before it as witnesses. They were to
continue their sittings following day Saturday when the Inspector General of
Police, Mr. Sunday Ehindero issued a curious order from Abuja that the Panel's
security be withdrawn. Meanwhile Fayose had imported 18 busloads of thugs from
Ibadan the night before and both the police authority and SSS were aware of
this. Panel members were terrified on learning of the withdrawal of their
security. Frantic appeals were made to the DG, SSS and the local director to
safe the seven gentlemen and ladies from the terror about to be unleashed after
similar appeals to the local police commissioner, Ms Ivy Okoronkwo has been
rejected. The SSS eventually provided security and the Panel members were moved
to the House of Assembly, venue of the sitting. Terrified the panel sat for only
20 minutes and rounded off its proceedings. The SSS operatives herded them into
a bus and moved them under tight security to Akure through the longer and
unexpected Ilawe – Igbara Odo route. Ten minutes after they departed the House
two busloads of thugs bearing dangerous weapons such as guns, machetes, petrol
and acid stormed the house and doused the place with petrol. When they realized
the Panel members were no longer sitting in the house, they snatched the windows
and destroyed whatever they could. Had the thugs met Panel members in the House,
we would have been telling another story today. On hindsight, we believe this
was the first attempt at contriving the excuses for an emergency. It was when
this failed they dusted up Olujimi to proceed to Ekiti and pronounce herself
governor while they also got Fayose to call Channel Television and tell the
world he was still governor. Olujimi was provided the critical infrastructure
necessary to sustain her challenge, security. Ekiti people clearly read through
the duplicity of the Federal Government and top members of the PDP and refused
to challenge her in the expected manner that would have led to violence.
Question is: why didn't EFCC which recognized the Aladejana Panel on account of
their appearance before the Panel pick her up for follow up with trial once she
was impeached?
It is good to be the State that would
produce the first female Governor in Nigeria and Ekiti people would ordinarily
have been proud of it. But such an honour of historical importance would have
been better bestowed on and through a woman whose moral integrity is without
blemish, at least in reality and in perception. In this case, there was a strong
perception of her that raised questions about her moral uprightness. These
rumours may or may not be true, but they nevertheless exist and should not be
ignored just like that.
The Bamishile Panel
Let us assume for argument's sake that the
Bamishile Panel did not have any problems but use the same arguments as those
now berating the Aladejana Panel's constitutionality. The "Prosecution", in
this case the House of Assembly failed to show up. The Panel had "within three
months" to investigate and report their findings. The Panel concluded it's
sitting and issued its report within 48 hours of inauguration! Why didn't they
wait for the maximum period of three months if indeed there was no ulterior
motive or hidden agenda? Besides, on what rules and procedures did they base
their sittings given that Section 188 (7) (a) clearly stipulates that the Panel
"shall have such powers and exercise its functions in accordance with such
procedure as may be prescribed by the House of Assembly," This particular
provision clearly puts the operation and authority of the Panel firmly under the
House of Assembly, not the Chief Judge as some top judicial and legal
personalities are now trying to suggest.
It is a matter of common sense, natural
justice and perhaps of law that if prosecution fails to present its case within
the specified period, in this case three months, the best that ought to be done
is to strike out the case, definitely not discharge and acquit, which is what
the Panel did. That the prosecution failed to show up cannot mean that the
offence was not committed. If the contrary is what our lawyers in NBA are
saying, then from a layman's point of view, it is unfortunate. Clearly, in any
system where emphasis is on justice and not necessarily on mere technicalities,
strike out cannot and should not equate to discharge and acquittal.
The Aladejana Panel
True this Panel raises some constitutional
issues that require adjudication by the courts. The problem is that our lawyers
have not told us how this could have been achieved without conflicting with the
provision of Section 188 (10) of the constitution, which unequivocally ousted
the jurisdiction of the courts on any matter relating to the impeachment
exercise. It would seem more that the entire impeachment process was meant to
be a legislative, not judicial affair.
The Federal Government on account of its
Agency's full representation and presentation before the Panel vicariously
recognized the Panel. The same is true of the Executive arm of Government in
Ekiti Sate with the legal representation of the Deputy Governor. Although not
necessarily sacrosanct, recognition by stakeholders and other interested parties
has always been the basis for the legitimacy of all successful coup d'etats and
this is widely accepted as a reality in Nigeria. Otherwise we ask: why are the
coupists of yester years still honoured and continue to participate actively in
some organs of our democratic governance? If a Panel is recognized and is
seeing by the real stakeholders, Ekiti people, to have dispensed justice, whose
ox is gored?
Given all that happened during and
immediately after the Panel's sitting and the House of Assembly impeachment of
the Governor and Deputy, it is clear that the revisionist step of the Federal
Government was on the recalcitrant stand of the House to honour the Presidential
wish of having Olujimi as the Governor. Ekiti people did not want Olujimi as
much as they did not want Fayose. Apart from the reasons stated above, leaving
Olujimi to become Governor would have meant a triumph of opportunism and
Executive conspiracy against the people. We recall Mrs. Olujimi's
often-repeated pledge to be the "last man standing" with Fayose! From some of
her utterances, it was clear she never wanted to part company in any way with
Fayose. What for Ekiti people would have been the difference between six and
half dozen? We also recall Fayose's boast prior to the impeachment that if by
any act of omission or commission Olujimi is made to replace him as governor, he
will go out the loudly some ugly acts which they both had perpetrated. This, we
were made to believe blackmailed Olujimi into going to the rooftop to announce
her loyalty to Fayose.
The Hypocrisy
Much as we respect Mr. Olisa Agbakoba
(SAN), we are amazed by his utterances and actions, which culminated in
solidarity, visit to the suspended Chief Judge, Justice Bamishile in Ado Ekiti.
Up till now, Mr. Agbakoba has not passed any comment beyond "cronyism" on the
protest of the House of Assembly published on page 10 of The Nation on Thursday,
October 12, 2006. Then while Mr. Agbakoba and his NBA had asked the Attorney
General of the Federation to file a litmus test case in the Supreme Court in
their correct affirmation of their confidence in the judiciary, they failed to
recognize the greater damage done to the judiciary by President Obasanjo's
violation of the doctrine of separation of powers through his hurried,
ill-informed, ill-advised proclamation of emergency rule in Ekiti State. Since
cases were already in court and the Attorney General's would have been added if
the AGF had acceded to the request of NBA, why would NBA now hurriedly support
the abridgement of the role of the judiciary who has all the powers to deal with
any and all kinds of constitutional crisis? To say the least, it is very
disappointing that a SAN led NBA would be the first to betray a lack of
confidence in the judiciary to resolve a constitutional crisis. We can assure
Mr. Agbakoba and his NBA that one day sooner than later, President Obasanjo
would play another card that would make Mr. Agbakoba and NBA wish they had never
supported this emergency proclamation. May we ask why Agbakoba do not consider
it necessary to talk to the leadership of the local NBA before making his
hurried solidarity visit to Justice Bamisile? We also decry his temperamental
action of snatching the cassette recorder from a reporter of The Guardian, when
he was asked why he did not consider it necessary to first see the officials of
the local NBA before rushing to see Bamisile in Ado Ekiti.
What is clear to Ekiti people is that in
their trying moments, the Agbakoba led NBA did not stand by them. They wanted
justice as expressed in the spirit of the law. Mr. Agbakoba and company opted
for miscarriage and/or denial of justice as was made possible by some loopholes
in the letters of the law. It is hoped that Mr. Agbakoba was not motivated by
his subtle war against the EFCC, which he dutifully inherited from his
predecessor in office.
We think there is no need going over the
role of the Chief Justice of Nigeria (CJN) whose statement compounded the
problems for the judiciary. The CJN is certainly the official whose voice
should have been the very last to be heard in a matter of this nature, if at all
it became necessary. We believe all agree he acted in error and it is not
mitigated by the claim that his comments were contained in a supposedly private
albeit official correspondence with Justice Aladejana.
The Emergency Proclamation
Mr. President accused the Ekiti House of
usurping judicial powers. He is guilty of the same offence. First there were
at least two cases in court. In any event, it was a constitutional, not
political crisis and the judiciary could best have resolved this. Since the
judiciary has already been drawn into the fray both by the pending cases and the
comments of the AGF and CJN, why didn't the judiciary opt for full performance
of its constitutional duties?
President Obasanjo, indeed any President
in Nigeria should never be allowed to assume judicial powers under whatever
guise if our democracy is to survive in consonance with our dream. This is why
the State of Emergency proclamation should be rejected at least if law and
constitutionalism are the sole guide of the impeachment process.
There is a greater danger to contemplate.
Emergency was proclaimed on Ekiti State where during the impeachment process,
there was no violence; no life was lost; no property damaged. This is unlike the
situation in Plateau and Anambra States. Niger Delta continues to be a troubled
region. Add to all these a simulated religious crisis in the North of the
Kaduna dimension that welcomed President Obasanjo in February 2000, then we have
a perfect case for emergency rule in at least ten states with Retired Generals
as Sole Administrators. This would provide a perfect alibi for postponing
elections while tenure at the Federal level is extended! We need to be very
careful and watchful.
PDP and the Ekiti Lawmakers
There is however an unintended benefit
from this emergency rule, a benefit that might in fact have saved Ekiti State as
much embarrassment as Fayose's rule. It goes right to the heart and soul of PDP
and the moral fabrics of both the party and the nation. It touches on the
quality of people we have as our leaders.
Throughout the impeachment saga, the
managers of the process, acting on behalf of a strong, broad-based, pan-Ekiti
coalition had three key objectives. The first was to rid the state of the
embarrassing, traumatic menace of Fayose/Olujimi administration. The second was
to convene a pan-Ekiti summit that would produce a blueprint for the strategic
development of Ekiti State in the short and long term. The summit was also
expected to produce a blueprint for moral and behavioural engagement in politics
within the state. This particular blueprint would have set the minimum standard
for ascendancy to public office in Ekiti State in a manner that truly reflects
the cherished values of the state, part of which President Obasanjo elaborated
on in his broadcast. The goal behind this was to ensure that the likes of
Fayose never get to public office again in the Fountain of Knowledge where every
family can boast of at east one University/Polytech
The third objective was to ensure that the
state has a vibrant, multiparty democracy anchored on the core values of the
state in a peaceful atmosphere free of intrigues and all the vices currently
besetting politics in Nigeria. In fulfilling this objective, the managers
recognized and were indeed committed to a program to rebuild, restructure and
reposition PDP which to all intents and purposes had been destroyed by Fayose
and company. The new Action Congress no doubt has a strong foothold in Ekiti
and is well positioned. PDP requires a lot of assistance to give it any chance
of competing in any election in the state. Rebuilding and repositioning the
party, PDP, was in consonance with the objective of institutionalizing a vibrant
multiparty democracy in Ekiti State. There was no way Olujimi could have
achieved this with the monstrous legacy of Fayose hanging on her. She had to
give way.
An unstated but very firm objective was to
get rid of the nuisance of Chief Olabode George who over time was succeeding in
positioning himself as the infamous, undeserved godfather of Ekiti politics as
if Ekiti State is all that is Southwest. Everyone knew that Chief Bode George
was one of the major problems of Ekiti State and thus the plan to chase him away
so that the state can be at peace and have a real chance of development. Chief
Bode George was largely seen as the ultimate threat to the core values of
industry, honesty, integrity, sound ethics and morality that Ekiti people are
known for. With Fayose and certainly Olujimi in control, there was no way this
could be achieved. Ekiti people could live with a Senator Yinka Omilani;
unfortunately he had been sidelined from his position as the Vice Chairman of
PDP, Southwest by Chief Bode George who in real terms refused to yield that
position to him.
Thus there was an agreement that
representatives of the various groups that put the impeachment together and
funded the entire process would meet after the impeachments and Aderemi's
assumption of office to fashion out a broad-based, pan-Ekiti transitional
government that would pursue the objectives stated above, under the leadership
of the eminent, highly respected true leader of Ekiti State, Chief Afe
Babalola. Hitherto, the Chief had given President Obasanjo a solemn pledge to
help rebuild PDP in Ekiti State once the impeachments were over and Aderemi
takes over as Acting Governor. At stake was the age-long friendship and mutual
affection between Chief Afe Babalola and President Obasanjo. Now on the night
Chief Aderemi was sworn in as the Acting Governor, the Ekiti Lawmakers and some
leaders of PDP in the state abandoned this coalition and traveled to Akure to
hold what they called a PDP caucus meeting. It was at this meeting that the
Lawmakers showed their hands and succeeded in taking Aderemi hostage to their
greed and avarice. They wanted executive political appointments without regard
to the sacred trust of their constituents that made them Lawmakers.
First the erstwhile majority leader was
appointed Secretary to the State Government. No element of the coalition save
the Lawmakers was consulted. Next, six lawmakers were to be appointed
Commissioners while two others would have appointed to head the Local Government
Service Commission and the State's Universal Primary Education Board. This
would have led to bye- elections in ten constituencies in addition to Aderemi's
constituency. The coalition had given President Obasanjo a written undertaken
that should Aderemi become the Acting Governor, then no other candidate would
contest against him in the constitutionally mandatory bye election within three
months thus saving INEC the headaches of a bye election so close to the April
general elections. Suddenly we were confronted with the spectre of ten
bye-elections making nonsense of the undertaking earlier given President
Obasanjo. It was this betrayal that and others discovered immediately after the
impeachments that made Ekiti people accept the proclamation of emergency without
any challenge. For them, justice has been partly served with both Fayose and
Olujimi no longer in control of their affairs. It is also expected that under
General Olurin, Chief Bode George's parasitic influence on Ekiti State would
cease. Ultimate justice would be achieved when Fayose is prosecuted for his
crimes against humanity while he held forte as the Governor of the State.
It is a matter of deep regret and a major
embarrassment to honourable people of Ekiti State that some of these lawmakers
are already shamelessly begging opinion leaders to help them lobby General
Olurin to pay them the anti-impeachment bribe of
Matters Arising
What happened in Ekiti State was the
interplay of various forces, values and vices – law, constitutionalism,
morality, ethics and greed. There was also a good deal of deception and
insincerity, certainly a lot of duplicity. It is a major credit to Ekiti people
that with all the contradictions at play, they managed to achieve the desired,
well-deserved justice without firing a shot! Fayose and Olujimi are gone and
that should remain so.
But after all said and done, should the
emergency have been declared? Maybe, may be not. The loser is the judiciary
that was denied its constitutional role of resolving constitutional crisis as
they arise. It cannot be a correct approach to always resolve constitutional
and legal issues by applying a political cum military solution. Having
precipitated this crisis, what should be the fate of Justice Bamishile, the man
who willfully and callously perverted justice by a reckless breach of the spirit
of the law?
Importantly what is the status of Fayose
and Olujimi? If the Bamishile Panel is held as legal, then their immunity
subsists and cannot be arrested and prosecuted until May 29, 2007. If it is
accepted that Justice Bamishile, the one time Coordinator of Ekiti Judiciary,
a product of illegality, which Mr. Agbakoba did not notice as part of the
history of Ekiti judiciary, erred in law, then Aladejana's Panel would have to
be accepted as valid and Fayose and Olujimi would stand impeached. Of course
this will also challenge the basis of the proclamation of emergency. There is
still a case for a judicial review of the whole process.
Recommendations
Our recommendations after considering all
the issues and with all the emphasis on justice for Ekiti people are:
Conclusion Ekiti people deserves good governance and they have a real chance of ensuring that only credible people, those who have imbibed and internalized the noble values of Ekiti in their attitude and conduct, are elected in 2007. In others words, the politics of 2007 should be about personalities, not about parties, which in any case are not ideologically differentiated in real terms.
Released by e-11 Group October 25, 2006
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