Critical Observations on the State of the Nation

Thursday, December 10, 2009

Critical Observations on the State of the Nation by Femi Falana

Being the text of the Obafemi Awolowo University Distinguished Alumni Lecture Delivered by Femi Falana at the Oduduwa Hall, Obafemi Awolowo University, Ile Ife, Osun State on Monday, December 7, 2009

Introduction: Many alumni associations in Nigeria are known for organizing dinners and other social programmes for their members. Others are in the habit of dishing out questionable awards to men and women of dubious reputation. I have however noted that the Obafemi Awolowo University Alumni Association is among the few that deem it fit, from time to time, to raise critical issues concerning the lack of adequate funding of education and the crisis of governance in the country. In particular, the Association has been involved in addressing the issue of welfare of staff and students in order to create an enabling academic environment on this campus. It is on account of its relevance to the society that I am proud to associate with the Obafemi Awolowo University Alumni Association.

Mr. Chairman, permit me to state that I am not here to deliver a lecture but to invite the staff and students of this Great Ife University to join the progressive forces in Nigeria in the struggle to create an egalitarian society out of the debris of the decadent neo-colonial capitalist arrangement that has been foisted on the nation. As no society has genuinely developed without the critical intervention of the intelligentsia members of the academic community should fight against a political system that has continued to throw up charlatans as political leaders of our potentially great country.

In reviewing the State of the Nation therefore, I intend to address issues arising from the health of the President, the 2010 Budget and Deregulation, the planned repression of students’ rights and the 2011 General Elections.The President’s HealthSometimes last year, President Umaru Yaradua stole out of the country. He was away on medical vacation for 17 days. As the President did not hand over power to the Vice President as required by Section 145 of the Constitution, the Presidency was hijacked by Alhaji Babagana Kingibe, the then Secretary to the Government of the Federation. Upon his return to the country the President dismissed Alhaji Kingibe from the Government.

A few months ago, the President had cause to return to the hospital. In order to give the false impression that the President was hale and hearty it was reported that he was in Jeddah to commission a university. That was the official excuse for not attending the General Assembly of the United Nations! Since the federal universities were then on a 4-month old industrial action the Administration was exposed to ridicule in the local and foreign media.

About two weeks ago, the President was rushed out of the country for urgent medical treatment. This time around the trip was announced and the reason disclosed. Apart from saying that he had pericarditis no other details were given. Those who heard that the President was in coma for days at the Intensive Care Unit of the foreign hospital began to circulate dangerous rumours capable of threatening the security of the country.

As if that was not disturbing enough it was reported that the Vice President, Dr. Goodluck Jonathan had come under renewed pressure to resign to pave way for fresh presidential election. While the Constitution was being assaulted and political rascals were toying with the destiny of 150 million Nigerians we were all asked to pray and fast for our ailing President. The Senate President, Chief David Mark directed Nigerians to pray for 9 days.

Realizing the security implication of preventing the Vice President from standing proxy for the President a group of 53 Nigerians issued a joint statement calling on the President to either resign or submit himself to a Medical Panel appointed by the Senate President to examine his medical fitness for the office of the President in line with Section 144 of the Constitution which had been violated by the Government. The Federal Executive Council hurriedly met, pronounced the President hale and hearty and read treasonable felony in the suggestion that the President should step down to take care of his failing health. The nation was told that the Vice President was “in charge” of the country. The forum of governors also met and toed a similar line of official deceit.

Meanwhile, those who called for prayers in the daytime began to hold nocturnal meetings to plan their succession agenda. One of them who described the position of the G53 as “ungodly” is noted for fixing results of fraudulent election in alliance with the Devil. The fellow was alleged to have diverted a large chunk of the N300 billion earmarked for maintenance of Nigerian roads. Today, Nigerians are being killed on those death traps. Yet we are not asked to pray for the repose of the souls of the victims of grand corruption perpetrated by satanic forces in the land.

It is pertinent to review how such matters are handled in other countries including the United States from where Section 145 of the Constitution was copied. On two occasions President George Bush II handed over power to his Vice President, Dick Cheney on health grounds. On June 29, 2002 before going to the theatre for a 20-minute operation for colonoscopy he handed over officially to Vice President. He wrote to the Senate. After the operation he wrote back on the same day. On the morning of 21 July 2007 Cheney once again served as Acting President for about 21/2 hours when the President went for another operation that required sedation. On both occasions President Bush transferred his powers because of the possibility that he might die in the theatre.

In 2006, the Israeli Prime Minister, Mr. Ariel Sharon suffered from cerebral hemorrhage. He quickly handed over power to the Prime Minister, Ehud Olmert who completed his term. About the same time, President Fidel Castro resigned when he had to undergo intestinal surgery. He handed over to his deputy, Raul Castro. In his resignation letter, Fidel wrote “It would be a betrayal to my conscience to accept a responsibility requiring more mobility and dedication than am physically able to offer”.

Those who have said that it is “unafrican” for Presidents to transfer powers to their deputies should be reminded that the Zambian President once did so on health ground. On June 19, 2008 President Levy Mwanawasa had mild stroke while attending a meeting of the African Union in Cairo, Egypt. He handed over power to his deputy, Mr. Rupiah Buezain Banda. Even though, Acting President Banda regularly briefed the nation on the state of Mwanawasa’s health a South African radio once reported that he had passed on. President Thambo Mbeki asked South Africans to observe a minute silence for him. As it turned out to be a rumour Mbeki expressed deep regret and prayed for the speedy recovery of President Mwanawasa. Even though he died a month later Mwanawasa’s compliance with the Zambian Constitution saved his country from political instability.

Our “prayer warriors” may also want to learn a lesson from President Nelson Mandela who once transferred power to his arch political rival, Chief Mangosuthu Gatsha Buthelesi. That was in 1998 when the President and his deputy, Mr. Mbeki were out of the country on state assignments. As Acting Commander-in- chief of the Armed Forces for 48 hours, Chief Buthelesi authorized the South Africa’s military intervention in Lesotho to restore the elected government that had been removed by a gang of soldiers.

It is gratifying to note that Alhaji Balarabe Musa and other progressive leaders in the North have dissociated themselves from the power mongers who are bent on provoking ethnic and political crisis in the country. Some of us cannot be blackmailed by those who were in the forefront of the “Abacha for President” and “Obasanjo for Third Term” campaigns. We insist that the issues arising from the hospitalization of President Yar’adua be handled in strict compliance with the Constitution. Afterall, Chief Olusegun Obasanjo who imposed the ailing President on the nation said at a book launch in Lagos last week:“If you do not leave the job that you are doing to rest, then the job you are doing will leave you for other people to take charge of that job”. (THE NEXT Newspaper, Saturday, December 5, 2009).

Just one last word on the issue of the resignation of the President. Captain Moussa Daddis Camara was wounded last week in an assassination attempt by a section of his presidential guards. He was flown to Rabat, Morocco for treatment. As he may not be returning home soon the Vice President of the junta, General Sekouba Konate who was outside the country on an official engagement has rushed back to take charge of the affairs of State on the orders of the military president.

Before the shoot out in Conakry, Guinea President Yaradua had, in his capacity as the current Chairman of the Authority of Heads of State and Government, mounted pressure on Captain Conte Camara of Guinea and President Mohammadu Tandja of Niger Republic to vacate office and return their countries to constitutionalism. When both of them failed to heed the call the ECOWAS has since imposed sanctions on their countries. If it is not ungodly on the part of President Yar’adua to call on fellow Heads of State to resign why is it sinful to call on him to call it quit on health ground in line with the provisions of the Constitution? It is significant to state without any fear of contradiction that we have not called for a coup. Neither have we called for the inauguration of a Government of National Unity. In asking for Yaradua’s resignation to afford him the opportunity to take of his health we have not gone outside the Constitution. It is those who are saying that the President should not hand over to his deputy that are hell bent on provoking constitutional crisis in the land.

The 2010 Budget and Deregulation .

President Yaradua has stated that the 2010 budget is a stimulus to address the challenge of the so-called global financial meltdown, tackle domestic economic mismanagement and bolster the critical sectors such as education, power, transportation and other key areas of infrastructure. I am not going to bore you by analyzing the Budget because it is not going to be implemented. With profound respect to the President, the N4.1 trillion budget is nothing but a design to enrich and maintain public officers without commensurate service to the people.

Even though Nigerians are being told to tighten their belts due to the so-called global economic meltdown, the sum of N16.2 billion has been allocated to meals, refreshments, honorarium and allowances for National Assembly members. Food supplies to the Presidential Villa will gulp N365 million, averaging N1 million per day. Rats and mosquitoes are to be fought with N15 million in the name of fumigation. That is separate from refreshment of meetings fixed at N68 million, State Banquets (N125 million); Rehabilitation of the Banquet Hall, presidential aides houses (N522 million) servicing of debts (N571 billion) etc.

In order to increase the burden of the Nigerian people the Federal Government has decided to increase the prices of petroleum products. The new term for the policy is “deregulation of the downstream sector of the oil industry”. It would be recalled that from 1999- 2009 the Federal Government juggled the pump price of fuel not less 15 times. At the end of the day it was increased from N20 to N70 per litre.

The country’s 4 refineries with an installed capacity of 445,000 litres of refined petroleum products per day were not properly maintained. In the last 10 years over $1 billion was spent on Turn Around Maintenance of the refineries. As the funds were diverted, Government resorted to unbridled importation of refined products. President Yaradua identified the cartels and cabals that have profited from the N2 trillion allocated to subsidy in the last 4 years. But his hands are tied with respect to challenging the large scandal in the business of fuel importation. Worse still, the Federal Government does not know the volumes of litres of oil produced and exported from Nigeria!

Unlike what obtains in other oil producing countries the multinational oil companies are smiling to the banks while Nigerians are undergoing excruciating poverty. Just recently, an oil company offered to renew three expiring 40-year lease the Federal Government responded with $2 billion counter-offer from a Chinese company. A few days ago, the Minister of Information, Professor Dora Akinyuli hosted the Venezuelan Ambassador to Nigeria, Enrique Arrudeh.

In requesting Venezuela to invest in Nigeria the Information Minister painted a rosy picture of a deregulated economy. Without mincing words Arrudeh told her:“In Venezuela, since 1999 we’ve never had a raise in fuel price. We only pay $1.02 to fill the tank of a car. What I pay for with N12,000 here, in Venezuela, I will pay N400. What is happening is simple. Our President decided one day to control the industry, because it belongs to Venezuelans. If you don’t control the industry, your development will be in the hands of foreigners. You have to have your own country, the oil is your country.

The oil is your country’s. Sorry, I am telling you this. I am giving you the experience of Venezuela. We have 12 refineries in the United States, 18,000 gas stations in the West Coast. All we are doing is in the hands of Venezuelans. Before 1999 we had four foreign companies working with us. That time, they were asking 80 percent and giving us 20. Now we have 90 percent and giving them 10. But now we have 22 countries working with us in that condition.

It is the Venezuelan condition. You know why? It is because 60 percent of the income goes to social programmes. That is why we have 22,000 doctors assisting the people in the community. The people don’t go to hospital, doctors go to their houses. That is because the money is handled by Venezuelans. How come Nigeria that has more technicality manpower than Venezuela with 150 million people and very intellectual people around, not been able to get it right? The question is if you are no handling your resources how are you going to handle the country?

So, it is important that Nigeria takes control of her resources. We have no illiterate people. We have over 17 new universities totally free. I graduated in the university without paying one cent and take three meals everyday, because we have the resources. We want the resources of the Nigerian people for Nigerians. It is enough. It is enough, Minister.”

It may be said that Venezuela has succeeded because of her population of 28 million people. But Gabon is an oil producing country with a population of less than a million people. Her oil wealth has been stolen by her rulers. Those who say Nigeria is poor may want to demand for accountability in the management of the economy. I have just stumbled on the minutes of the September 8, 2009 meeting of the representatives of the Federal and State Governments. In that meeting it was disclosed that the Federal Government under the Olusegun Obasanjo Administration did not account for several billions of dollars of revenues from signature bonus, excess crude account, privatization proceeds etc.

On its own part the Socio-Economic and Accountability Rights Project (SERAP) has found that “the Administration of former President Olusegun Obasanjo between May 1999 and January 2007 failed to collect over $18 billion owing to negligence to propose relevant amendments to the Deep Offshore and Inland Basin Production Contract Act to the National Assembly” in line with Section 16 of the Act which states that “the provisions of this decree shall be subject to review to ensure that the price of crude oil at anytime exceeds $20per barrel, real terms, the share of the government of the federation in the additional revenue shall be adjusted under the production sharing contracts to such extent that the production sharing contracts shall be economically beneficial to the government of the federation”.

Anyone who says Nigeria is poor should be taken to a mental home. I believe that Nigerians are poor because the Government has continued to violate Section 16(1) of the Constitution which requires the State to “control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity.” This can only be achieved if ‘the economic system is not operated in such manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group”.

Planned Repression of Students’ Rights.

In the wake of the nationwide protests staged which greeted the ill-fated Structural Adjustment Programme from 1987- 1988 the Ibrahim Babangida junta clamped down on student unionism with the enactment of the Student Union (Control and Regulation) Decree No 47 of 1989. The PDP-led Government has decided to strengthen the anti-student law. To this effect the Student Union (Control and Regulation) Amendment Bill 2008 has been forwarded to the two Chambers of the National Assembly.

The amendment bill, while pretending to be out to remove clauses which infringe on the fundamental human rights of students, seeks to empower the governing councils of universities to suspend or rusticate students without any legal challenge. Specifically, section 2(2) thereof provides that nothing shall prevent any governing council, the highest decision making body or any authority or person in charge of any institution of higher learning from regulating the activities of the unions or prescribing the union.

My immediate reaction is that the planned existence of student unions at the pleasure of governing council violates the fundamental rights of students to freedom of association guaranteed by Section 40 of the Constitution. In INEC V. Balarable Musa (2003) 10 WRN 1 the Supreme Court struck down stringent conditions attached to the registration of political parties by the Independent National Electoral Commission.

Contrary to the provisions of the laws setting up each institution of higher learning which require the authorities to observe the rules of natural justice with respect to the discipline of students, Section 4(2) of the proposed bill is seeking to empower the governing councils to suspend or expel any student whenever “it is of the opinion that public interest or public safety so demands….”

In order to oust the jurisdiction of the Courts from entertaining any allegation of human rights violations from students, it is stated that representation can only be made to the Visitor to the Institution “whose decision on the matter shall be final and conclusive”. Let me say straight away that the right to fair hearing cannot be wished away by any law as was held by the Court of Appeal in Chima Ubani v. Director of State Security Service (1991) 11 NWLR (PT 625) 129 where Oguntade JCA (as he then was) stated:

“Suffice it to say that Decree No 12 of 1994 and the ouster clause therein are ineffectual for the purpose of preventing the lower court from assuming jurisdiction in the case of an infraction of the rights recognized and protected under the African Charter on Human and Peoples’ Rights Cap 10 Laws of the Federation of Nigeria”.

Even under a military dictatorship the Court of Appeal never agreed that the original decree ousted the jurisdiction of the Court. According to Ogundare JCA:

“It is my respectful view that there is nothing in Decree No 44 of 1989 ousting the jurisdiction of the Courts in respect of matters convened by the Decree. Nor is there anything in the Decree which makes a representation to the President, Commander-in-chief of the Armed Forces a condition precedent to the exercise of the right conferred on an aggrieved student by section 42(1) of the Constitution”.

The bill is essentially designed to prevent students from fighting for their rights as the Federal and State governments have decided to increase tuition and accommodation fees in tertiary institutions. For instance, the University of Ado Ekiti has just increased tuition fees to N90,000 – N120,000.00 per student per session. Added to the cost of accommodation, books and maintenance an average student will require not less than N500,000.00 for university education in Ekiti State. The jejune justification for the skyrocketing fees is the lack of funding on the part of the state government. Meanwhile, in addition to the UNAD the state government has just established two new universities – the Ekiti State University of Education and Ekiti State University of Science and Technology. A new airport is also going to be constructed by the State even though it is battling to pay the poor wages of its workers.

The 2011 General Elections. Following the highly flawed 2007 General Elections conducted by the Independent National Electoral Commission (INEC) President Umaru Musa Yar’adua set up the Electoral Reform Committee (ERC) headed by the Honourable Mohammed Lawal Uwais, a former Chief Justice of Nigeria. In view of the vital role of an electoral agency in the conduct of credible elections the ERC was specifically assigned the responsibility to recommend the establishment of a truly independent electoral commission for the country.

Consequently, the ERC recommended that the positions of the Chairman and members of the INEC be advertised by the National Judicial Council (NJC). The NJC is only required to outline the requisite qualifications, receive applications, shortlist qualified persons to each position and forward nominations to the Council of State. Since the President is a member of a political party and may be a contestant in the presidential election the ERC recommends that the Council of State should select one candidate for each position and forward the nominations to the Senate for confirmation. With respect to State Electoral Commissions the above recommendation cannot be faulted having regard to the manipulation of the electoral bodies by state governors.

Before 2003, Vice Chancellors of Federal Universities were appointed by the President in his capacity as the Visitor to those institutions. But as the system was riddled with abuse the Academic Staff Union of Universities (ASUU) fought for university autonomy. Consequently, the Governing Council of each university has been empowered to appoint its Vice-Chancellor and merely inform the President in line with The Universities Miscellaneous Act. By virtue of Section 3 of the Act the position of a Vice-Chancellor is advertised by the University Council which sets out the prerequisites. Upon the receipt of applications, a Joint Council / Senate Committee is constituted to consider the applications, conduct an interview and recommend names of three candidates to the Council. The Council shall select and appoint one candidate from among the three candidates recommended to it and thereafter inform the Visitor.

The Adjudication of Election Petitions

The ERC recommended that all disputes arising from elections should be concluded expeditiously before the swearing in of winners of elections or the inauguration of a government. This recommendation was rejected by the Yar’adua Government on the ground that it violates the fundamental right of litigants to fair hearing. This is misleading in that election petitions were concluded in 1979 and 1999 before the inauguration of incoming governments. Yet no petitioner complained of the violation of his right to fair hearing.

Whereas Section 132(1) of the Constitution provides that the Presidential election shall be held on a date not earlier than 60 days and not later 30 days before the expiration of the term of office of the incumbent the ERC has suggested that the election be held not later than 6 months to the expiration of the term of the incumbent office holder.

This in effect means that the prosecution of election petitions and appeals arising from shall be concluded within 6 months. Once parties are given equal opportunities to seek redress in a law court the issue of violation of their rights to fair hearing does not arise. The on-going practice of allowing election petitions to remain in courts for 2,3 or 4 years can only be stopped if election petitions are concluded before the expiration of the terms of office of incumbent office holders.

The application of the Evidence Act should be relaxed in the interest of justice and fair play. Election Petition Tribunals should operate like Commissions of Inquiry set up under the Tribunal of Inquiry Act. Therefore, the Electoral Act should contain a provision to the effect that:

“An Election Petition Tribunal shall have power to admit any evidence – whether written or otherwise, and act on it, notwithstanding that such evidence might have been inadmissible in civil or criminal proceedings before a law court”.

The onus of proof to show that election was not conducted in accordance with the law shall always be on the INEC provided that the Petitioner shall only need to introduce evidence of mismanagement of the election.This recommendation is in line with several decisions of our courts. For instance, in cases dealing with the violations of the fundamental right to personal liberty of any citizen the Applicant is only required to show evidence of arrest and detention. From that point the onus shifts to the detaining authority to justify such arrest and detention.

It is in the collective interests of Nigerians that the far-reaching recommendations of the Mohammed Uwais Electoral Reform Committee be adopted as a basis for the 2011 General Election. Nigerians should defend their votes and stop rushing to tribunals where they are required to prove grave electoral offences beyond reasonable doubt and thereby subvert the democratic process on a permanent basis. At this juncture, I charge the few state governments that are not under the control of the Peoples Democratic Party (PDP) to adopt the Uwais Report and begin its implementation. Through this approach which is in line with true federalism, Nigerians will be encouraged to appreciate that “one man one vote” is a reality.


From the foregoing I have attempted to challenge you to join other progressive forces to reclaim the soul of our country from the agbero bourgeoisie that has colluded with imperialism to keep her underdeveloped. In spite of the frustrations and disenchantment that our people are going through they are ever ready for change if we organize them with commitment and sacrifice.

Let me conclude this address by drawing your attention to the recent decision of the ECOWAS Court in the case of SERAP v. FRN (unreported) suit no: ECW/CCJ/APP/08/08 of 27/10/2009 where it was held that “the right of every Nigerian to education is an enforceable right by virtue of Article 17 of the African Charter on Human and Peoples Rights.”. Nigerian people should take advantage of such historic judicial pronouncement to enforce their human right to free and qualitative education at all levels. The resources to fund free education are available. It is a question of the political will to implement it.

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