Some Leaders Do Have Them
Last week was rather eventful, what with the handing down of the Supreme Court decision in the most celebrated case of 2019 in Nigeria – Atiku Abubakar & Ors v Muhammadu Buhari & Ors, the American House of Representatives’ resolution to formalise impeachment proceedings against President Donald Trump, and the debate on the constitutionality and acceptability of the Nigerian Army’s “Operation Positive Identification”.
Atiku Abubakar v Muhammadu Buhari I imagine that, it will be somewhat remiss of me, not to make any comment about the Supreme Court decision in this case. Anybody who expected an outcome different from the dismissal of the Petitioner’s petition, I’m sorry to say, is living in ‘La La Land’! Like I had said previously on this page, Nigeria is not Kenya – no incumbent President has ever been removed by a court in favour of a challenger, in the history of our jurisprudence. Or maybe some were just a little bit optimistic that, even if the Supreme Court did not declare Alhaji Abubakar the winner of the 2019 Presidential election, a fresh election would be ordered. As we say in Hausa, “ina!” (where!).
Possibly, if our democracy was being developed appropriately, we may have seen, even the second of the two outcomes which I mentioned above. Alas! Democracy in Nigeria has been severely truncated, and what Government is busy developing instead, is an Autocracy. And, we all know that, one of the main features of an autocracy, is a sit-tight rule by force. Therefore, right from the start, I had aligned myself with the opinion of Learned Senior Advocate, Dr Olisa Agbakoba, to the effect that, nothing would come out of the Alhaji Abubakar’s petition.
As for those who complained that Her Lordship, Honourable Justice Mary Peter-Odili, JSC was wrongfully excluded from the Panel that heard the appeal, I beg to disagree. Just as Honourable Justice Zainab Bulkachuwa recused herself from the Panel hearing this matter, on account of her husband and son not only being card carrying members of APC, but her husband also being a Senator on the APC platform, likewise, Justice Peter-Odili’s husband is a former Governor of Rivers State on the PDP platform. Accordingly, excluding her was a decision that cannot be faulted. Even though some may argue that, Justice Peter-Odili would have been only one out of a Panel of seven, and, at best, her decision may have been a dissenting one, so it would not have been of much consequence if she was on the Panel or not, again, I disagree. Not only must justice be done, it must also be seen to be done. See the case of R v Sussex Justices, ex parte McCarthy 1924 1 KB 256, 1923 All ER Rep 233 on the principle that, “the mere appearance of bias, is sufficient to overturn a judicial decision”.
President Trump Kogi State is not the only place suffering from impeachment fever – the United States of America (US) too. I’m sure that, if it was in Nigeria, what President Trump stands accused of doing, would not be seen as extraordinary – so what, if he used his power as President of the US, to solicit the assistance of the Ukrainian Government in the upcoming 2020 election, to dig up dirt on Joe Biden’s son, Hunter, in order to discredit the Bidens before the election and give himself a better chance at the polls, allegedly dangling a carrot of $400 million military aid, in return for the favour? In Nigeria, it is normal to use what you have, to get what you want - the end justifies the means!
At the Federal level, Article 1 Section 2 Clause 5 of the US Constitution gives the House of Representatives the sole power of impeachment. Bribery and treason are impeachable offences/misconduct, while other ‘high crimes and misdemeanours’ which are not defined in the US Constitution, are also impeachable offences. Alexander Hamilton, one of the founding fathers of the US described impeachable offences as “the misconduct of public men, or in other words, from the abuse or violation of some public trust”. Such conduct, need not be criminal. Some officials have been impeached for drunkenness, and biased decision-making. Misconduct could include, “misusing the office for an improper purpose or for personal gain”, which may be the case in the allegations levelled against President Trump.
If President Trump is impeached after the House of Representatives hearing, the Senate shall try the impeachment (Artcle 1 Section 3 Clause 6 US Constitution), and if he is found guilty by the Senate, he can be removed from office (Article 1 Section 3 Clause 7 US Constitution). For instance, President Bill Clinton was impeached on December 19, 1998 for perjury and obstruction of justice, arising from a sexual harassment case instituted by Paula Jones which later included Monica Lewinsky. But, impeachment does not mean removal, and the two-thirds Senate majority required to remove President Clinton, consequent upon his impeachment by the House of Representatives, were not achieved, and he was therefore, acquitted.
The difference between Nigeria and the US is that, unlike the Kogi State House of Assembly which, contrary to Section 188(8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), went ahead to illegally remove the Deputy Governor of the State without the requisite proof of gross misconduct to the Panel instituted by the Chief Judge to investigate the allegations levelled against him, if President Trump is not impeached by the House of Representatives, we can trust that, the matter cannot go to the Senate for trial, and even if he is impeached, the US Constitution which is well respected over there (unlike our Constitution that has more or less, been rendered redundant), will never be bypassed, but instead, it will be followed to the letter by the US Senate.
Is Operation Positive Identification Lawful and Constitutional?
By now, we are all used to the ridiculous names that the Nigerian Army gives to its various operations, like, ‘Operation Python Dance’ and ‘Operation Crocodile Smile’. Today, we have Operation Positive Identification (OPI), whatever that means. I wonder, what is negative identification?
Sections 214 and 217 of the Constitution, set out the roles of the Nigeria Police and the Armed Forces respectively, and some may argue that, Section 217(2)(c) which empowers the Armed Forces to suppress insurrection, is the constitutional basis for OPI. But, my question is, if the Army hears that there are Boko Haram insurgents in a particular area, with the knowledge that a greater percentage of Nigerians have no means of identification (there is no law that mandates Nigerian citizens to have identification; even the National ID Card, how easy is it to be able to obtain one?), does that mean that, if they enter such a neighbourhood and individuals are unable to identify themselves ‘positively’, they will be arrested as suspected terrorists? Can criminals not even have fake identification, which they use to throw off the authorities?
Section 41(1) of the Constitution guarantees the right of every Nigerian to freedom of movement, and OPI is not one of the exceptions that restricts this right in Section 41(2)(a). If a Farmer usually goes to sell his produce at a market somewhere in Maiduguri or Bama for example, some of Boko Haram’s favourite areas of attack, does that mean that, because the Farmer has no means of identification, he should lose his meagre livelihood by not going there to trade, because he runs the risk of being arrested as a suspected terrorist?
Again, Section 36(5) of the Constitution provides that anyone who is charged with committing a crime, is innocent until proven guilty; the OPI, on the other hand, seems to run foul of this provision, as it is, guilty until you prove yourself innocent with positive identification.
How exactly is OPI meant to work? The explanation given by an Army Spokesperson to the House of Representatives on how OPI will function, in my opinion, was not only vague, ambiguous and unsatisfactory, but leaves ample room for abuse of Nigerians by the military. And, while like any other well meaning Nigerian, one of my greatest desires for our country, is for insurgency be quelled and the security situation to improve, my fear is that, innocent Nigerians will be abused, wrongfully arrested and even, killed, during this OPI exercise. Our security agencies have a penchant for abusing their offices, extorting money from innocent citizens at any given opportunity, committing extra-judicial beatings, torture, killings, and cover ups; and despite the fact that, Section 34(1)(a) of the Constitution prohibits subjecting any individual to torture or inhuman or degrading treatment, we can be certain that this OPI presents a golden opportunity for the Army to indulge in all of the above.
Additionally, just as Learned Senior Advocate, Femi Falana said, the moment I heard of OPI, the first thought that crossed my mind too, was apartheid South Africa, where the blacks were issued identity passbooks once they attained the age of 16. The passbooks were used to maintain segregation and restrict the movement of blacks, especially into areas inhabited by white people.
I suggest that the Army steps up its intelligence gathering and surveillance, instead of attempting to use such a crude technique which fails the test of global best practice standards, especially as obtaining means of identification in Nigeria is no walk in the park, nor is there any law that mandates Nigerians to have means of identification.
“......DOES THAT MEAN THAT, IF THEY ENTER SUCH A NEIGHBOURHOOD AND INDIVIDUALS ARE UNABLE TO IDENTIFY THEMSELVES ‘POSITIVELY’, THEY WILL BE ARRESTED AS SUSPECTED TERRORISTS?”