Tear Gas, Mayhem and The Rule of War

Nigeria is almost as unpredictable as our weather during the rainy season. In the last few months, we have heard of politicians defecting from one political party to another, in the midst of fouled campaigns. Last Thursday some members of the National Assembly were tear- gassed. What do we expect next? Democracy is meant to be an institution which should encourage freedom, fairness, equality and the rule of law; instead we have the rule of war. Democracy is almost autocratic and dictatorial these days. Consequently, instead of majority rule, there is propensity to allow guns, weapons and forceful dictatorial tendencies govern us in a country where democracy has been entrenched consistently, continuously and peacefully since May 29, 1999.

Whatever happened to decency, decorum and due process? The rule of law must be followed and complied with at all times, irrespective of the grievance and no matter how aggrieved or angry an individual may be.

Why would anyone want to break through a barricade of Police to get to their place of work by all means necessary? The Police are empowered by law to maintain law and order and sustain the sanctity of decorum in every well-established democracy. Consequently, even if there was an alleged ambush, the appropriate way would be to seek redress by resorting to the law courts in order to defend your constitutional rights and entitlement, not resort to barbaric means of taking the law into one’s hands, literally and metaphorically as we saw in the media.

The law courts have set a precedent with regard to defection of a person from one political party to another. Their decisions were based on the interpretation of section 68(1) (g) of the Nigerian Constitution. The section states and I quote (paraphrased): “A member of the Senate or House of Representatives shall vacate his seat... if he becomes a member of another political party before the expiration of that period...” provided his defection was not as a result of a division in the former party. This provision is subject to various interpretations. One interpretation of section 68(1) (g) is that where the Speaker defects from one party to another, he is expected to vacate his seat. However the Speaker could rely on the exception under the proviso clause above, he could argue at the Federal High Court that his defection was as a result of an alleged division in his former party (in this case, PDP) therefore, entitling him to retain his seat. The

legal argument is was PDP really divided? In the 75-page judgment of the case between then Alhaji Bamanga Tukur’s PDP and Alhaji Kawu Baraje’s PDP, the Judge recognized Tukur’s faction and disbanded Baraje’s. Does that mean there is no division or faction within PDP? If so, then Tambuwal cannot possibly rely on the exception to that rule. The Supreme Court’s precedent is the judicial case of FEDECO vs. Goni and another (1983), where the court ruled that despite the defection, the aggrieved party could not relinquish his seat. Subsequent decisions are divided on this issue; some have ruled similarly, while others have ruled that the defecting parties must vacate their seats. Some courts have said even though Tukur’s division was recognised and Baraje’s disbanded, it does not nullify the fact that there is an alleged division within PDP. Notwithstanding this, the Sokoto PDP merged with APC therefore Tambuwal could still rely on that and

claim entitlement to retain his seat. No matter how you look at it, this is subject to various interpretations. It is left for the courts to give the correct interpretation of that section 68(1) (g) so that there is clarity in the law of defection, to avoid any ambiguity or lacuna.

Having said that, each time I review the footage of Thursday’s event, it is almost incredible that anyone, would break through the cordon with a “motley crowd” or “members of the House.” No matter how courageous, one could possibly be; who would want to fight the police, fully armed with tear gas and ammunition, and attempting to break through a fully fortified fortress? Obviously, members of the police force have a duty to maintain law and order and restore peace where there is a breach of peace. The presence of the police in the society is a sine qua non for safety of lives and property in the nation. In accordance with section 4 of the Police Act, they are employed “... for the prevention and detection of crime, preservation of law and order, as well as the due enforcement of such laws and regulations...” Section 10 empowers the President of Nigeria to give the Inspector General of Police, such directions with respect “to maintaining

and securing public safety and order” in accordance with what he may consider necessary. The condoned off area was apparently carried out at the discretion of the Inspector General of Police, who it was alleged was acting on intelligence report of “possible invasion of the house by hoodlums and thugs”. Where there is threat of possible breakdown of law and order, the Inspector General of police has a duty to restore public order.

In any event, the doctrine of separation of powers should be respected above all, with each arm of government acting as a check on the other, so that requisite checks and balances are adequately maintained. The executive should not have absolute power over the legislature and vice versa, neither should the judiciary. An independent, impartial judiciary should be strengthened and empowered to look into the matter. The solution is not to jump a police barrier and force oneself into a building. It is not civil to do so because it is barbaric and sets a very poor precedent for generations to come.