Buhari has suspended Nigerians’ fundamental rights —Falana

Leading rights lawyer, Mr. Femi Falana spoke to LANRE ADEWOLE about the essence of June 12 and the future of constitutional democracy in Nigeria.

Sir, this is another anniversary of the historic June 12, 1993 presidential election, widely held as the freest the country has ever conducted. With recent happenings in the country, does democracy have a future, despite civil rule running 22 unbroken years?

When the nation transited from military rule to civil rule in May 1999 no attempt was made to demobilize and demilitarize the former military dictators who captured power from the military wing of the political class. To compound the crisis the Constitution (Promulgation) Decree No 24 of 1999 signed into law by the last military ruler, General Abdulsalami Abubakar was left intact. Curiously, the courts interpreted Decree No 24 of 1999 to be the Constitution of Nigeria of the Federal Republic of Nigeria 1999. In the first place, the so called Constitution legalized by the courts is not a legitimate document in that it was not made and enacted by the Nigerian people. Secondly, the former military rulers had returned Nigeria into a unitary republic. Many of the political actors are former military dictators and their minions who had served as ministers, commissioners and other appointees. Thus, with the mindset of military dictators the political actors have continued to operate the democratic system like military prefects.

Out of 22 years of civil rule, two former military dictators have ruled the country for 14 years while civilian leaders have been at the helm of affairs for only 8 years. Majority of the state governors served in one capacity or another during the military era. With their military psyche the political actors have refused to operate under the rule of law. They prefer to operate under the rule of the ruler in Abuja. The provisions of the so called Constitution and other laws are breached by the political authorities with impunity, court orders are disobeyed by the political authorities with impunity. The human rights of citizens are infringed upon by law enforcement officials and powerful personalities with impunity. It is such authoritarian rule that has endangered the democratic process. But all hope is not lost as Nigerians are slowly but gradually taking their political destiny in their own hands. Majority of organized groups in the country have rejected Decree 24 of 1999 for a new Constitution written by the accredited representatives of the Nigerian people.

If you are optimistic that Nigeria will ride out the moment, how do we handle the ruling class which appears bent on truncating democracy, despite the obvious resolve by Nigerians to give civil rule a chance, to robustly develop into the future?

The members of the ruling class and their imperialist masters are being challenged by workers and other oppressed people all over the country. In October last year, the youths trooped out in their millions to protest and reject police brutality and official corruption. Efforts to divide protesters along ethnic and religious lines by the ruling class failed. It was at that juncture that the federal government ordered the army and the police to kill protesters as it was believed that the protests were programmed for regime change. Notwithstanding the brutal killing of scores of protesters, Nigerians have continued to stage protests for payments of minimum wage, pension and insecurity. Kaduna State was recently paralyzed by workers led by the Nigeria Labour Congress.

Some have argued that something inherent in the country’s DNA is more parliamentary in nature than presidential, which the big men of the ruling class seem to have equated with unitary system of government.

There is no particular political system in the DNA of Nigerians. The 1960 Independence Constitution paved way for the republican Constitution in 1963. But the first republic collapsed barely three years later. So the much celebrated 1963 Constitution was suspended in January 1966 by the first set of military adventurers in power. However, following the great political debate of 1975 to 1979 the political class abandoned the parliamentary system and embraced the presidential system. In contributing to the debate the masses demanded for socialism. The political class rejected the demand but included the Fundamental Objectives and Directive Principles of State Policy in Chapter 2 of the Constitution with a proviso that the breach of the chapter could not be challenged in any court of law. In 1986, the political bureau recommended socialism for Nigeria based on the demand of the people. But the Ibrahim Babangida junta rejected the popular demand. In 1999, the political class, once again, included Chapter 2 in the Constitution and made it non justiciable. But during 2014 national conference, all the delegates unanimously recommended that the provisions of Chapter 2 of the Constitution be made justiciable. That was the most important recommendation made by the Conference. Whether we return to parliamentary system or continue with the presidential system, we must realize that majority of citizens are demanding for social justice, equitable distribution of the resources of the country which can only be provided for under a socialist system of government

Do you think some kind of fascism is gradually creeping on Nigerians?

I already explained that we are under a quasi-military regime. Hence, the rule of law is in abeyance. The removal of political office holders on television, dissolution of cabinets without notice, running of key parastatals and agencies without boards or governing councils, dissolution of elected local governments and appointment of sole administrators to run them, extrajudicial killings and shoot on sight order are all legacies of military rule. Save in a fascist state, fundamental rights are never suspended or abridged at the whims and caprices of public officers. But fundamental rights have long been suspended under the Buhari administration. Hence, court orders are treated with disdain under the pretext of protecting national security.

Is government wrong asking private businesses like Twitter to register in Nigeria before they can operate and is freedom of speech absolute?

The suspension of Twitter and denial of access to information was carried out because the online medium was alleged to have bruised the ego of the President. For that reason, the 40 million other subscribers have had their right to freedom of information violated. The full implications and ramifications of the suspension of Twitter were not taken into cognizance by the government. That explains why the government is now running from pillar to post to justify it. It was after the ban that the government discovered that it lacks the capacity to enforce it. In a desperate attempt to enforce the ban, the Attorney General of the Federation threatened to jail any person who defied the ban. We asked Nigerians to ignore the threat as no one can be punished under any law that has not been prescribed. It has since been revealed that the Minister deactivated his own twitter account about 5 days after the announcement of the ban. The demand for the registration of Twitter is an afterthought which is rather embarrassing. To stop further exposing the country to ridicule the government ought to lift the suspension without any conditionality. Thereafter, the issue of registration and payment of taxes may be discussed within the ambit of the law.

You are in court with government of President Muhammadu Buhari over sundry issues, the latest being the seeming assault on free speech, by suspending Twitter and seeking to regulate other similar platforms. What will it take for this administration to rule by law and be constitutional in behaviour?

Except that we suffer from collective amnesia, the country has been ruled by neo fascists since 1999. The Obasanjo regime gave a shoot on sight order on members of the Odua Peoples’ Congress. Odi was invaded and destroyed by soldiers by the Obasanjo regime. Zaki Biam was attacked and destroyed by soldiers under the Obasanjo regime. Gbaramotu was attacked and destroyed by soldiers under the YarAdua regime. President Buhari has sent troops to attack the people of the South East region because of the alleged criminal activities of the Indigenous People of Biafra (IPOB). Lawless regimes have contempt for the rule of law. It is a rule according to might. Because of the anti people’s policies and programmes, of the ruling class, every regime is usually worse than its predecessor. To that extent, that Nigerians have a penchant for recalling the days of clueless and incompetent regimes with some nostalgia.

Democracy day is fast becoming an avenue for elected officials to celebrate their accomplishments in office while the real heroes of the June 12 struggle are being relegated to the background. How do you approach this sir?

Let hypocrites continue to reel out their achievements on June 12. Nigerians are not deceived. They know the heroes and villains of democracy. By the way, what achievements are you talking about? 40 years ago, there was pipe borne water in many cities. Today, governors commission new boreholes with fun fare. 40 years ago, we had vehicles either imported or assembled in Nigeria. Today, used cars of 10 or 15 years litter our roads. 40 years ago, the Nigerian Airways was the best airlines in Africa. Today, Nigeria can only boast of 11 aircraft in the presidential fleet. 40 years ago, the Public Works Department fixed and maintained our roads. Today, the government can no longer maintain the roads. They are now going to be sold to the private sector. 40 years ago, Nigeria had four functionary refineries. Today, they are comatose. 40 years ago, our hospitals were among the best in the world. Today, the rulers travel abroad for medical treatment while the people die locally of preventable diseases. Which achievements are you talking about? A governor was recently asked to list his achievements. He proudly said that within 6 years, his regime had facilitated the emergence of chicken republic, domino, and even cinemas. Mind you, they were all established by private investors.

You said you are for a new constitution. Please suggest to the National Assembly how to constitutionally set the process in motion since the deputy senate president, Ovie Omo Agege says they are handicapped by the constitution.

In all the 6 geopolitical zones, people are either calling for power devolution or outright balkanization of the country. I am convinced that the contradictions in the political system playing out in the crises of insecurity, collapsed infrastructure, massive corruption and abuse of power will fast track the removal of the ruling class from power in Nigeria. The political members of the political class are comfortable with the status quo. They are only interested in crossing the i’s and t’s of the Constitution. After all, amendments were carried out in 2010, 2011, 2017 and 2018. But they never addressed the challenges of devolution of powers, insecurity, control of the economy, expansion of democratic space. Not much will change this time around. As far as I am concerned, only a revolutionary government can give Nigeria a new Constitution.

Will constitutional democracy be enhanced by the adaptation of 1963 constitution as argued by some Senior Advocates sir?

In 1963, the people of Nigeria, through their elected representatives, replaced the Independence Constitution with the Republican Constitution. Thus, an elected president became the Head of State and replaced the British monarch who was Nigeria’s head under the Independence Constitution.  The Supreme Court became the final court of appeal instead of the British Privy Council prescribed by the Independence Constitution. Following the January 15, 1966 coup de t’at, the 1963 Constitution was purportedly suspended by the Supreme Military Council to pave way for military rule. At the end of military rule in 1979 the Olusegun Obasanjo military regime imposed the so called 1979 Constitution via the Constitution (Promulgation) Decree No 102 of 1979. But by virtue of the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree 105 of 1979 the Obasanjo military regime repealed all the Suspension and Supremacy Decrees. The implication is that the suspension of the 1963 Republican Constitution was lifted. However, the second Republic was operated under Decree 102 of 1979, otherwise called the 1979 Constitution. When the military sacked the civilian government again in December 1983, the so called 1979 Constitution was suspended. In 1999, General Abdulsakami Abubakar repealed the suspension of the 1979 Constitution and imposed the 1999 Constitution on the nation via the Constitution Promulgation Decree No 24 of 1999. From the foregoing, it is undoubtedly clear that even though the 1963 Constitution was illegally suspended in 1966, it was never abrogated throughout the era of military rule. Indeed, the decrees which suspended its provisions were repealed in 1979. To that extent, the 1963 Republican Constitution remains the only legitimate Constitution of the Federal Republic of Nigeria. Instead of amending Decree No 24 of 1999, the National Assembly should be called upon to facilitate the restoration and adoption of the Republican Constitution with necessary amendments. In particular, the Fundamental Objectives and Directive Principles of State Policy should be entrenched in the Constitution and made justiciable.

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