Immunity Must Go
By
Dr. Aliyu Tilde
aliyutilde@yahoo.com
I did not know that Governors also cry until last week when they met the President and bitterly complained of their exclusion from the benefits of third term, immunity and other matters that border on their selfish interests in the constitutional amendment report presented to the Senate. The President assured them that something will be done. Shamelessly, his agents smuggled a revised copy of the document that takes care of the governors’ grudges, but thanks to the patriotism of majority of senators, it was thrown out. What a pity!
In our support to those senators, we are today reprinting our 185th discourse which was published last year. In it we reviewed the origin of the doctrine and how illogical it will be to retain it in 21st Century Nigeria when even Britain, its source, has stripped the Queen of its benefits long ago.
Immunity is an old common law doctrine that is rooted in the dictum ‘the King can do no wrong’. In a book widely read by students of administrative law, Nigerian Administrative Law, P. A. Oluyede located the relevance of the dictum in the feudal structure of old England, saying:
“Under feudal system no lord could be sued in the court which he held to try the cases of his tenants. Similarly, the King of England as the apex of the feudal pyramid was not subject to the jurisdiction of any Court in the realm. The basis of the concept is clear. It is simply not that the King could do no wrong, but that no action could be brought against him in his Court without his consent. Ironically however, the oft cited expression that ‘the King can do no wrong’ has been completely misunderstood…
“Another reason for the development is that the true meaning of ‘the King can do no wrong’ is that the King has no legal power to do wrong. The King’s legal position, the powers and prerogatives which distinguish him from an ordinary citizen, is given to him by law, and the law gives him no authority to commit wrong. Much too often it was not appreciated that the King as a human being had a personal as well as a political capacity. In his personal capacity he was just as capable of acting illegally as was any one else.”
In other words, the immunity of the King arose from two reasons: one, the fact that the Court was his and so he cannot issue a writ against himself without him permitting the Court to do so through his endorsement of petitions; two, the society does not expect him to do a wrong, so he did not have the legal capacity to commit it. Following this, a civil servant in those days could only nominally be a defendant in an action brought against him; the government was responsible for fulfilling any obligation arising from his actions.
Things changed in 1947 when the Crown Proceedings Act was promulgated. Under this law, the King became a subject of private law, though not in his personal capacity, and a citizen can seek redress against the injustices committed against a state or its official by ordinary court procedure.
“It is noteworthy at this juncture,” Oluyede wrote, “to point out that the practice which had been in operation in England up to January 1948 was imported to Nigeria and the practice is still in existence in this country even after it attained republican status. It is on record that Britain has, since the Crown Proceedings Act, 1947, came into operation, made it possible to sue the Crown in the Courts by the ordinary process of law in all cases where a Petition of Right or a special statutory procedure had hitherto been the practice. In sum, civil actions by and against public authorities and officials in connection with acts or omissions which normally give rise to cause of action between two citizens are now on the same footing. There is no difference in procedure adopted.”
From the immunity of the Crown, let us move to the immunity of its inheritors. In Nigeria the rights of the crown are vested in our Heads of Governments by provisions of the Republican constitution in 1963. In 1979, following the adoption of a presidential system of government, section 276 of the constitution stated that
“without prejudice to the generality of section 274 of this constitution, any property, right, privilege, liability and obligation which immediately before the date when the section comes into force was vested in, exercisable or enforceable by or against (a) the former authority of the Federation representative or trustee for the benefit of the Federation; or (b) any former authority of a state as representative or trustee for the benefit of the state, shall on the date when this section comes into force and without further assurance than the provisions hereof vest in or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.”
It must be noted here that the Crown Proceedings Act did not strip the Crown of his immunity in private and personal capacity. The immunity provision of section 267 of the 1979 constitution was a logical flow of the above quoted provision of section 276. “The section (267),” wrote Oluyede,
“provides that no civil or criminal proceedings shall be instituted or continued against the president, Vice-President, Governor or Deputy-Governor during their period of office. They can neither be arrested nor imprisoned during that period in pursuance of the process of any Court or otherwise. While they hold office no process of any Court requiring or compelling their appearance shall be applied for or issued. This is not to say that they are not liable for any civil or criminal act or omission done in their personal capacity while in office. It only means that action cannot be taken against them at that material time.” This provision is replicated in our 1999 constitution.
That is law. It did not envisage that a King can do wrong. It never foresaw a situation where criminals will become kings or kings becoming criminals. The old philosophy is that a king lives well above his servants in his display of majesty and pride; hence, he will not condescend to the level of criminality. Thus we have never heard, until recently in Nigeria and other developing countries, that a President of a nation or a governor of a state can reduce himself to the level of a thief. What a terrible person would he then be in the contemplation of our grandparents?
In the relationship between a king and wrongdoing, three situations can be discerned. The first is that he lives above the level of wrong, and remains free of the consequences of wrongdoing. In this dimension, the provision of immunity makes a lot of sense. But what happens if the king does wrong? That is where the remaining two options come into operation.
When he does wrong, it means the immunity granted him has failed. Under the presidential system of government, the constitution provides for an impeachment clause which could be invoked by the legislature after a procedure that ascertains his guilt is duly followed. Remembering Clinton, that is when the king becomes demystified; he loses his majesty and looks like a cock beaten by rain, as the Hausa will put it.
In Nigeria too the constitution relies on the impeachment clause to guard the executive against doing wrong or in removing him from office when he commits one. Unfortunately in practice, it is used to settle scores between the executive and the legislature or in the attempt of the latter to extort money from the former. A case to recall here is that of former Governor of Kaduna State during the Second Republic, Alhaji Balarabe Musa who was impeached not for reasons related to theft or any misdemeanour but ideological difference between him and the legislature. The impeachment clause here has been used negatively. The impeachment clause was also used to remove many deputy governors thereafter who could not dance to the tune of their governors.
Today, the impeachment clause is used by the legislature to extort money from a wrong doing king, and almost all the kings in Nigeria are wrongdoers. Whenever they learn about a wrong committed by the governor or the President, they raise the card against him and, behold, Ghana must go begin to roll out. Then they drop it. I wish Balarabe Musa were so wise. That is how Baba Iyabo has been able to navigate on the turbulent water of the politics of the second, sorry third, most corrupt nation on earth. During the first term of this administration, the House of Representatives listed over thirty offences committed by President Obasanjo, including forgery. They would have impeached him, if it were not for the power of Ghana must go. Here, impeachment has failed to secure justice for Nigerians due to the susceptibility of the legislature to corruption.
It is the case of Dariye that brought the immobilizing effect of the immunity clause to public glare. He and other governors are good specimens of wrongdoing kings. He is allegedly guilty of negligence of duty that has caused the lives of thousands of people in the ‘home of peace and tourism.’ In addition, records have shown that he has stolen billions from the public treasury. The President, we learnt, tried to persuade the Plateau State legislature to impeach Dariye or else face the imposition of State of Emergency as a consequence. They chose the latter over the removal of their benefactor.
While away during the state of emergency, the presidency and M15 exposed the corrupt practices of Dariye. He was arrested in Britain and granted bail on charges of money laundering. A case was brought before the Court and his immunity right as a governor was upheld. While the law allows him to go free, for now, his collaborators in the same crime are standing trial. Meanwhile, no one can assure us that Dariye has not resumed the perpetration of his corrupt practices which will go on, unfortunately, until 2007. Other corrupt governors are also temporarily relieved by that verdict of the fear of prosecution; they can continue filling their Ghana must go jus qua 2007. We can only wait for the end of their tenure and think of how to drag them to court thereafter for the offences they committed with impunity before our eyes. It is clear, therefore, that we cannot rely on the impeachment clause, just as we feel the immunity clause is archaic and unjust ab initio. Here, again, the law has failed to secure justice.
It is when a judicial system fails to check the excesses of the king that citizens resort to solutions outside the law. Where the law ends, anarchy takes over. In the realm of anarchy, people have found various ways of dealing with the problem. Civil war is one, often ending with the king as the loser, as it happened to Charles I in 17th Century England. Revolution is another, as it happened in France in 1789 against feudalism and Charles XVI to usher in Declaration of Rights of Man and the Citizen which guaranteed “liberty, equality, the inviolability of property and the right to resist oppression.” The same thing happened to the Russian Tsar in March 1917 leading the takeover by Bolsheviks in November. Recently, the revolution of 1978 in Iran saw the final exit of the Pehlavi Monarchy and substituted it with a questionable marriage between democracy and theocracy. On the African continent we have seen the fall of Haile Selassie in 1974. I wonder if the ruling houses in the Middle Eastern kingdoms will survive the end of this century.
Military coups have been popular means of getting rid of corrupt governments in Africa. The Second Republic in Nigeria was brought to an end because the legislature could not simply recognize that the country was collapsing, hence the need to impeach the President. Some say that the era of coup is over. I will prefer to advise the king that he should not take chances; he should do no wrong…
Finally, in the debate over the immunity of the executive, supporters of the provision have dubiously avoided mentioning its actual (historical) reasons; rather, they simply tell us that the executive need to be protected against the flood of litigations that will distract them from performing their duties. However, given the risk of corruption and the consequent overthrow of the government that the immunity provision engenders, I will rather prefer that we remove the immunity and, in its place, strengthen the law of defamation with special provisions that will raise the stake of unsubstantiated allegations of wrongdoing against the President, Vice President, Governors and their Deputies.
While deterring people with evil intention, the law will thus make it possible for citizens with evidence of wrongdoing against and the President or any governor to come forward and present them before the court of law. Once found guilty, the executive can be removed, imprisoned or executed as the law would require. The impeachment clause will then be redundant and removed. The ultimate power of removing the President, Governor or their Deputies will thus lie with the judiciary. Let us try it. Other than this, retaining immunity and impeachment clauses in a corrupt environment like ours is the surest invitation to coups and other non-constitutional means of changing the situation.
As for those who misused the immunity clause in the past seven years thinking that the day of reckoning will never come, their cry has come earlier than expected. The President too cannot hold back his tears. They will start flowing immediately Nigerians get shocked by the staggering statistics of corruption that took place in his office. The vulture is a patient bird. We are not in a hurry.
Showing posts with label Nigerian constitution. Show all posts
Showing posts with label Nigerian constitution. Show all posts
Friday, May 21, 2010
Memo to Liman Ciroma Committee
Memo To Liman Ciroma Committee
aliyutilde@yahoo.com
President Obasanjo has constituted a technical committee on local government reforms. He is principally concerned with the alarming corruption at the “third tier” of government and the possible involvement of traditional rulers in its future administration. The committee is now headed by Malam Liman Ciroma, after the death of its first chairman, late Etsu Nupe. This essay is a memo, sort of, briefly discussing the difficulty of the task of the committee and containing some few suggestions on the reform measures required. But as it is the tradition with students of administration law, it starts with a review of major trends in local government administration during the last fifty years in the country.
This is not the first time local governments are coming under scrutiny. In fact, it appears that in every decade since 1950, there has been a reconstruction of their structure and a redefinition of their roles. Between 1952 and 1966 the emphasis was on democratization under the ambit of regional administrations. Traditional rulers were increasingly becoming less powerful as indirect rule gradually gave way to popular participation.
The second phase started immediately after states were created in 1966. Instruments of coercion – police, prison and judiciary – were taken over by state and federal governments, while development matters like primary education, health, roads, water, etc, remained under local government councils. More local councils were also created.
However, for the next decade there were still no nationwide rules regarding their structure and functions. That had to wait until 1976 when harmonization become the thrust of reform. Guidelines for the creation of new ones were given; committees, councils – executive and traditional – local government service boards, and so on, were formed. The objectives were four: decentralization of decision-making, stabilization of administration, popular participation and recognition of the future role of traditional rulers.
In preparation for civil rule, there was the growing need to insulate local governments from undue influence of, and abuses by, state governments. The temptation to make them completely independent was high, given the failure of the 1976 reform to provide such protection. But 1979 constitution, in respect for the principle of federalism, suppressed that temptation. And though the constitution gave guidelines to their creation and guaranteed the democratic basis of their councils, it was silent over whether state governments can be compelled to carry out their constitutional duties vis-à-vis local governments. Jakande and some governors dissolved elected councils and replaced them by management committees, an act that the courts declared unconstitutional. Many councils were created on political grounds which were abolished by the military in 1984.
The temptation to make local governments independent finally became irresistible during the failed transition program of the Babangida administration. Their number was doubled in one instant, contrary to his earlier promise, and they were directly connected to the federal government. The reason behind this could easily be discerned from the fact that Babangida belonged to a different party – the military – and the governors were civilians; opening a direct line of communication with the center was meant to give him direct control of grassroots politics, which was necessary for manipulating the transition program. This was the period when corruption in local government, like in the federal, reached its peak. Local governments got the liberty they never dreamt of. In fact, they were encouraged by the federal government to look at state governments with disdain. The supervisory roles of state governments were returned to state governments under the Abacha regime, and some sanity prevailed for a while.
With return to democracy in 1999, massive corruption returned. Local governments also became ponds in the game of political manipulation. Many new ones were created, as during the Second Republic, which were not be recognized by the constitution. The inability of the Obasanjo administration to compile voters’ register was used as a pretext for the dissolution of their councils and misappropriation of their status by state governments.
Under this condition, the federal government is contemplating to reinstate the hold of traditional aristocracy over the affairs of local government, a move supported by a nostalgia for a past. I find it funny when people, for lack of good recollection, regard the era when local governments were under aristocratic control as golden. It was far from it. Let us, for example, hesitate here and recall something that happened in the defunct Northern House of Assembly in August 1950. Sir Abubakar Tafawa Balewa, in what is considered as his most remarkable speech, cited bribery and corruption among the reasons for his call for native authority reforms. He said: “One feature of native administrations above all demands the attention of the commission. It is, as all of you are well aware, the twin curses of bribery and corruption which pervade every rank and department… I cannot over emphasize the importance of eradicating this ungodly evil… Unless the commission fully realize the gravity of this problem and tackle it with courage, any recommendations they make for superficial reforms are bound to fail. It is a most disturbing fact that few officials can afford to be honest.”
Obasanjo may therefore need to know that he is faced with an “ungodly evil” that is possibly as old as himself. The committee he constituted would hence need to study the situation carefully and dispassionately. There are many reasons why the committee may not be finding its task easy. One, the issue of corruption is not limited to local governments. It will thus be difficult to envisage a prudent local system working under the supervision or control of corrupt state and federal governments.
Two, in countries ridden with corruption, democracy seems to guarantee poor governance. This arises from the fact that popular participation under such circumstances promotes only mediocre personalities in contempt for the honest. In addition, in a democratic rule, leadership is farther weakened by enormous pressure from the people and the ruling party seeking patronage, the refusal of which means losing the chance for a second tenure. Finally, decision-making is tedious, bringing in more contention and, thus, taking longer time to arrive at.
Three, there is lack of competent aspirants for the positions of chairman and councilor in most local governments in the country, a situation exacerbated by declining standard of education. To worsen the situation, the existing rules discourage civil servants from filling the gap.
Four, a lot of the corruption is forced on local governments by state government from above. Governors and public servants at local government service commission and ministry of local governments use their supervisory role to misappropriate local government funds. Many times, governors dip their ten fingers deep into their treasuries in the name of loans while the commission and the ministry become accomplices to corrupt practices perpetrated by the local government councils.
Five, this nation has long abdicated from the principle of reward and punishment. Where crime is not punished, deterrence is lost and the treasury becomes the treasure of anybody entrusted with it. Local governments are poorly audited, as does many state governments. The irony is that Obasanjo, the reformist, has sacked the auditor-general of the federation less than a year ago for simply carrying out the constitutional duty of publishing his annual report.
Etc…
Notwithstanding the above impediments, the committee may find the following suggestions useful. One, to improve the quality of participation, the law preventing civil servants from contesting elections should be removed in case of local government election, as an exemption. The risk should be lessened, such that civil servants can return to their jobs if they fail to secure the ticket of their party or win the seat they vied for. Also, the term they would serve as councilors or chairmen of their local governments should be added to their years of service. These will help us get rid of illiterates becoming our local government chairmen.
Two, I have earlier expressed the need to raise the educational qualification for eligibility to contest local government seats. Leaving the affairs of between 100,000 and 250,000 people in the hands of a secondary school failure is sheer imprudence. A recognized diploma for the post of a councilor is necessary, while a degree or its equivalent is needed for the post of local government chairman, both with at least 10 years experience.
Three, I would like the constitution to set conditions for creation of new local governments, especially conditions relating to population and viability. It appears, as it was first envisaged in 1976, that there would be no end to the demand for creation of new local governments. Given the enormous overheads required to run them, creation of new local governments simply depletes the little resources that would have been used to serve the people; the whole subvention may go to paying staff salaries and allowances of elected officials. That is the situation in many local governments now.
Four, conduct of local government election need to return to INEC. State electoral commissions can never be fair in their conduct. By implication, the governor is given a free hand to determine the winner of the local elections. With the expected increase in perfection and improved efficiency of the electoral process, I have no doubt that the future will find this suggestion useful.
Five, it is necessary to harmonize local government elections with those of state and federal offices. All elections should hold at the same time, and the tenures should be the same. This will prevent the recurrence of our present predicament.
Six, since there is no way local governments could be allowed to be independent of state governments under a federal arrangement, there is the dire need for a constitutional provision that will prevent any governor from using local government funds in any way, not even with the consent of the local government chairman or council.
Seven, it would not be a bad idea if the presidential system is reviewed at the local government level. Here the debate of the 1979 constitution drafting committee will be found very useful.
Eight, the roles of traditional rulers in local government administration should be left to individual state houses of assembly to determine. There is still a big disparity in the social relevance of their royal highnesses across the country. They are undoubtedly playing the most important stabilizing role presently, but defining their responsibility in governance under a democratic dispensation is a bit scary and difficult.
Nine and finally, staffing local governments need to be upgraded; the power of any computer depends on the size of its memory and the speed of its processor. Rather than keeping staff of 1950 standards, we need more graduates and professionals, similar to those in the services of states and federal governments.
In the end, Nigeria must maintain local governments for the purpose of addressing local matters of communities, in spite of their shortcomings. What it requires is purposeful leadership, which, unfortunately, our selfishness and the contradiction in our composition have denied us so far. As the members of the technical committee sit down to write their recommendations, I am sure one fact will not fail to strike their minds: Corruption is not in the system; it is in the mind. That is the monster that Obasanjo should give a real fight. So far, he has not gone beyond mere rhetoric.
aliyutilde@yahoo.com
President Obasanjo has constituted a technical committee on local government reforms. He is principally concerned with the alarming corruption at the “third tier” of government and the possible involvement of traditional rulers in its future administration. The committee is now headed by Malam Liman Ciroma, after the death of its first chairman, late Etsu Nupe. This essay is a memo, sort of, briefly discussing the difficulty of the task of the committee and containing some few suggestions on the reform measures required. But as it is the tradition with students of administration law, it starts with a review of major trends in local government administration during the last fifty years in the country.
This is not the first time local governments are coming under scrutiny. In fact, it appears that in every decade since 1950, there has been a reconstruction of their structure and a redefinition of their roles. Between 1952 and 1966 the emphasis was on democratization under the ambit of regional administrations. Traditional rulers were increasingly becoming less powerful as indirect rule gradually gave way to popular participation.
The second phase started immediately after states were created in 1966. Instruments of coercion – police, prison and judiciary – were taken over by state and federal governments, while development matters like primary education, health, roads, water, etc, remained under local government councils. More local councils were also created.
However, for the next decade there were still no nationwide rules regarding their structure and functions. That had to wait until 1976 when harmonization become the thrust of reform. Guidelines for the creation of new ones were given; committees, councils – executive and traditional – local government service boards, and so on, were formed. The objectives were four: decentralization of decision-making, stabilization of administration, popular participation and recognition of the future role of traditional rulers.
In preparation for civil rule, there was the growing need to insulate local governments from undue influence of, and abuses by, state governments. The temptation to make them completely independent was high, given the failure of the 1976 reform to provide such protection. But 1979 constitution, in respect for the principle of federalism, suppressed that temptation. And though the constitution gave guidelines to their creation and guaranteed the democratic basis of their councils, it was silent over whether state governments can be compelled to carry out their constitutional duties vis-à-vis local governments. Jakande and some governors dissolved elected councils and replaced them by management committees, an act that the courts declared unconstitutional. Many councils were created on political grounds which were abolished by the military in 1984.
The temptation to make local governments independent finally became irresistible during the failed transition program of the Babangida administration. Their number was doubled in one instant, contrary to his earlier promise, and they were directly connected to the federal government. The reason behind this could easily be discerned from the fact that Babangida belonged to a different party – the military – and the governors were civilians; opening a direct line of communication with the center was meant to give him direct control of grassroots politics, which was necessary for manipulating the transition program. This was the period when corruption in local government, like in the federal, reached its peak. Local governments got the liberty they never dreamt of. In fact, they were encouraged by the federal government to look at state governments with disdain. The supervisory roles of state governments were returned to state governments under the Abacha regime, and some sanity prevailed for a while.
With return to democracy in 1999, massive corruption returned. Local governments also became ponds in the game of political manipulation. Many new ones were created, as during the Second Republic, which were not be recognized by the constitution. The inability of the Obasanjo administration to compile voters’ register was used as a pretext for the dissolution of their councils and misappropriation of their status by state governments.
Under this condition, the federal government is contemplating to reinstate the hold of traditional aristocracy over the affairs of local government, a move supported by a nostalgia for a past. I find it funny when people, for lack of good recollection, regard the era when local governments were under aristocratic control as golden. It was far from it. Let us, for example, hesitate here and recall something that happened in the defunct Northern House of Assembly in August 1950. Sir Abubakar Tafawa Balewa, in what is considered as his most remarkable speech, cited bribery and corruption among the reasons for his call for native authority reforms. He said: “One feature of native administrations above all demands the attention of the commission. It is, as all of you are well aware, the twin curses of bribery and corruption which pervade every rank and department… I cannot over emphasize the importance of eradicating this ungodly evil… Unless the commission fully realize the gravity of this problem and tackle it with courage, any recommendations they make for superficial reforms are bound to fail. It is a most disturbing fact that few officials can afford to be honest.”
Obasanjo may therefore need to know that he is faced with an “ungodly evil” that is possibly as old as himself. The committee he constituted would hence need to study the situation carefully and dispassionately. There are many reasons why the committee may not be finding its task easy. One, the issue of corruption is not limited to local governments. It will thus be difficult to envisage a prudent local system working under the supervision or control of corrupt state and federal governments.
Two, in countries ridden with corruption, democracy seems to guarantee poor governance. This arises from the fact that popular participation under such circumstances promotes only mediocre personalities in contempt for the honest. In addition, in a democratic rule, leadership is farther weakened by enormous pressure from the people and the ruling party seeking patronage, the refusal of which means losing the chance for a second tenure. Finally, decision-making is tedious, bringing in more contention and, thus, taking longer time to arrive at.
Three, there is lack of competent aspirants for the positions of chairman and councilor in most local governments in the country, a situation exacerbated by declining standard of education. To worsen the situation, the existing rules discourage civil servants from filling the gap.
Four, a lot of the corruption is forced on local governments by state government from above. Governors and public servants at local government service commission and ministry of local governments use their supervisory role to misappropriate local government funds. Many times, governors dip their ten fingers deep into their treasuries in the name of loans while the commission and the ministry become accomplices to corrupt practices perpetrated by the local government councils.
Five, this nation has long abdicated from the principle of reward and punishment. Where crime is not punished, deterrence is lost and the treasury becomes the treasure of anybody entrusted with it. Local governments are poorly audited, as does many state governments. The irony is that Obasanjo, the reformist, has sacked the auditor-general of the federation less than a year ago for simply carrying out the constitutional duty of publishing his annual report.
Etc…
Notwithstanding the above impediments, the committee may find the following suggestions useful. One, to improve the quality of participation, the law preventing civil servants from contesting elections should be removed in case of local government election, as an exemption. The risk should be lessened, such that civil servants can return to their jobs if they fail to secure the ticket of their party or win the seat they vied for. Also, the term they would serve as councilors or chairmen of their local governments should be added to their years of service. These will help us get rid of illiterates becoming our local government chairmen.
Two, I have earlier expressed the need to raise the educational qualification for eligibility to contest local government seats. Leaving the affairs of between 100,000 and 250,000 people in the hands of a secondary school failure is sheer imprudence. A recognized diploma for the post of a councilor is necessary, while a degree or its equivalent is needed for the post of local government chairman, both with at least 10 years experience.
Three, I would like the constitution to set conditions for creation of new local governments, especially conditions relating to population and viability. It appears, as it was first envisaged in 1976, that there would be no end to the demand for creation of new local governments. Given the enormous overheads required to run them, creation of new local governments simply depletes the little resources that would have been used to serve the people; the whole subvention may go to paying staff salaries and allowances of elected officials. That is the situation in many local governments now.
Four, conduct of local government election need to return to INEC. State electoral commissions can never be fair in their conduct. By implication, the governor is given a free hand to determine the winner of the local elections. With the expected increase in perfection and improved efficiency of the electoral process, I have no doubt that the future will find this suggestion useful.
Five, it is necessary to harmonize local government elections with those of state and federal offices. All elections should hold at the same time, and the tenures should be the same. This will prevent the recurrence of our present predicament.
Six, since there is no way local governments could be allowed to be independent of state governments under a federal arrangement, there is the dire need for a constitutional provision that will prevent any governor from using local government funds in any way, not even with the consent of the local government chairman or council.
Seven, it would not be a bad idea if the presidential system is reviewed at the local government level. Here the debate of the 1979 constitution drafting committee will be found very useful.
Eight, the roles of traditional rulers in local government administration should be left to individual state houses of assembly to determine. There is still a big disparity in the social relevance of their royal highnesses across the country. They are undoubtedly playing the most important stabilizing role presently, but defining their responsibility in governance under a democratic dispensation is a bit scary and difficult.
Nine and finally, staffing local governments need to be upgraded; the power of any computer depends on the size of its memory and the speed of its processor. Rather than keeping staff of 1950 standards, we need more graduates and professionals, similar to those in the services of states and federal governments.
In the end, Nigeria must maintain local governments for the purpose of addressing local matters of communities, in spite of their shortcomings. What it requires is purposeful leadership, which, unfortunately, our selfishness and the contradiction in our composition have denied us so far. As the members of the technical committee sit down to write their recommendations, I am sure one fact will not fail to strike their minds: Corruption is not in the system; it is in the mind. That is the monster that Obasanjo should give a real fight. So far, he has not gone beyond mere rhetoric.
Relax Our Code of Conduct, Pls
Senator Mantu: Relax Our Code of Conduct
aliyutilde@yahoo.com
As an advocate of single-term presidency, I received the news that the National Assembly will consider introducing the maximum of single five-year tenure for our executives with joy. To augment the consideration of the senate committee, I will at a later date reprint the article I wrote last year on the subject in my former column, Friday Discourse. Before then, I would like to forward another contribution on the issue of code of conduct for public servants.
Guidelines on the conduct of public servants are contained in Part I of the Fifth Schedule of the 1999 constitution. The broad principle of the code is mentioned in Section 1 of the schedule: “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.”
Section 2 (a) went further to mention that a public servant, without prejudice to the generality of the provision in Section 1, shall not be paid more than one emolument, regardless to his number of public responsibilities.
A public servant employed on full time basis is further prohibited by Section 2 (b) from engaging or participating “in the management or running of any private business, profession or trade” other than farming.
To ensure that these provisions are complied with, public servants, including political appointees, are requested by provisions of Section 11 of the schedule to declare their assets “immediately after taking office and thereafter (a) at the end of every four years, and (b) at the end of his term of office.” The declaration must include a statement of “all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.”
To begin with, it is worth mentioning the obvious fact that only a very negligible fraction of our public servants complies with the above constitutional provisions. We are therefore dealing with a law that almost nobody wants to comply with and which has failed to achieve its primary objective of checking corruption in our public service.
I am not pleading for the abrogation of constitutional provisions that relate to corruption. The fight must continue. What I am proposing is the repeal of the Section 2 (b) of the schedule that prevents public servants from engaging in any business, no matter how morally legitimate, other than their official assignment and farming. This is the direction to which our experience in the past twenty-six years points.
Our main contention here is that public servants can no longer maintain their families or meet other social responsibilities resting on their shoulders using the token called salary. The reasons for this are many but we will limit ourselves to three principal ones: the inability of government to manage the economy efficiently; its abdication from providing essential services to its citizens; and the extended nature of the African family.
It may be essential to note how the constitutional provision on the code has changed over time. First, it did not exist in the 1963 constitution because the need did not arise. When it was introduced in the 1979 constitution as a means of eternalizing Murtala’s fight against bribery and corruption, it did not carry the exception of farming. If I remember correctly, the exception on farming came somewhere in the mid-1980s. Later, after long periods of strikes, medical doctors were allowed to practice privately, in addition to their official duties. Then ASUU, also after protracted strikes in the first half of 1990s, was able to procure a concession to engage in private practice. Perhaps, for their docility, other civil servants are yet to get any relief.
Understandably, the economy was better managed during the First Republic: inflation was very small; the wages were adequate; public servants, and the public as well, were enjoying all forms of benefits and services from government through functional schools, hospitals, railways and so on; elite families were nuclear and distant from their places of origins; and finally, there was little pressure from the public on these services due to poor awareness, illiteracy, low population, etc.
The situation changed with the decline of the economy and in quality of governance, beginning from the early 1980s. Inflation set in and the currency has been undergoing devaluation, reducing the value of emoluments to a small fraction of their previous levels in 1960s and 1970s. Government also failed to provide public servants with essential services in transport, health and education, leaving them to their devices. Families of civil servants are no longer nuclear because of the social responsibility that African tradition expects them to shoulder. Finally, there is enormous pressure on the scanty social services remaining, arising from increased public awareness of their importance, rising literacy, urbanization and population explosion.
While we must concede that even the best government cannot meet the entire social demands of all its citizens, at the same time, we can assert that any government that cannot cater for the needs of its public servants stands guilty of gross negligence. So, since public servants, no matter the negligence of government, cannot sit back and watch their children die of disease or grow without education, they are compelled by survival instinct, if not persuaded by moral imperatives, to look for sources that will complement their income. Though some have used this as a pretext for indulging in corruption, many are violating the law out of necessity. The teacher who goes round to teach in more than one school in town, the university lecturer who runs kabu kabu in the evening with his personal vehicle and the civil servant who opens a business centre are all live specimens of Nigerians who are in honest pursuit of subsistence.
We may think in the first instance that such people are simply working for the education, health and general welfare of their kindred. On deeper reflection, however, I strongly submit that they truly deserve our commendation and we should regard them as epitomes of civic behavior. The children they train will live to be the engineers who will construct and maintain our infrastructure or the doctors who will treat our patients, regardless of who was responsible for their education. Left to government, there would not be any. Also, while this provision of the law has immensely contributed to brain drain and many of their colleagues, including myself, have abandoned public service in pursuit of greener pastures in the private sector, these public servants have chosen to remain in the system and seek other means of meeting their social needs within the ambit of moral legitimacy.
Beyond the province of morality, they also merit the approval of the law, not its wrath. In the present circumstances, the law should encourage them, not restrain them. It is on this basis that I am suggesting the need to reform the constitution to allow public servants to engage, where possible, in business activities other than their official duties. This will enhance legitimate earning and reduce the potential of corrupting our public servants. All that is needed is deleting S 2 (b) in Part I of the Fifth Schedule while its S 1 remains to serve as the broad framework based on which judgment could be passed regarding whether the personal interest of a public servant in any business he engages really “conflicts with his [official] duties and responsibilities. In addition, other provisions of the code regarding declaration of assets and liabilities, bribery, gratification and so on should stand in order to determine the legitimacy of whatever might be earned by the public servant outside his official emoluments.
Other countries, like Egypt, have for long allowed their citizens multiple jobs. After all, what makes a medical doctor, an agriculturalist or an academician different from other public servants? What is good for them could also be good for the engineer, the computer specialists, the administrator, and many others.
I know an objection will be raised on the presumption that removing the restriction will open a wide gate for diverting the attention of public servants from their official responsibility or even put them in positions inimical to their duties. An example here is the common practice where some medical doctors use government hospitals as bases for procuring patients for their private clinics.
Without quoting numerous jurists that space would not allow, my defense here is that no law is flawless; laws are made to be broken, as a jurist once said. They are meant to protect the good citizen, not the “bad man”, as Justice Holmes would call these evil servants. What is essential is vigilance on part of the authorities concerned to check the possibilities of negligence and abuse by enforcing the relevant enactments. If legislation will remove an injustice or a burden from millions of our public servants, it should not be refrained by the possible abuse of some few members of the public.
More importantly, we do not have to live with the hypocrisy of a constitutional provision that every one knows is a farce. As it stands now, S 2 (b) of the code of conduct has violated one of the principles of the rule of law: i.e. the law should be such that it is possible to comply with. “If it is impossible to comply with the law”, wrote Dr. J. M. Elegido in his Jurisprudence, “people are bound to break it through no fault of their own. If this is the case the government will then have a handy method of punishing its opponents under a cloak of legality: they will be prosecuted for the offences they are bound to have committed. Of course, in practice there is no need for a government to promulgate laws which are literally impossible to comply with…”
The case is worse for politicians who required by law to abandon whatever they have built for decades simply because they will be in office for a brief period, sometimes of not even up to a year. In 1999, Obasanjo warned that he would not condone any public servant engaging in private business and that anybody interested in business should leave his government. Today, he knows that was a utopia. I hope that Senator Ibrahim Mantu and his committee on constitutional reform will face reality and expunge Section 2 (b) of the Fifth Schedule in light of these and many other considerations.
APOLOGY
I was alerted by a contributor to NaijaPolitics forum on the Internet – rakiyeahmmed@yahoo.com – that “Dr. Rilwanu Lukman does not maintain a room talkless of a suite at Nicon Hilton Abuja.” Though I could not trace the detail of what she wrote other than this title of the mail, I immediately replied her that if what she said is true, then Lukman deserves my unreserved apology. It is now clear from the fire that the NNPC boss is receiving from the press that the column from where I received my information last year confused Lukman with Obaseke. I hereby express my sincere apology to Lukman and regret any embarrassment my publication might have caused him.
aliyutilde@yahoo.com
As an advocate of single-term presidency, I received the news that the National Assembly will consider introducing the maximum of single five-year tenure for our executives with joy. To augment the consideration of the senate committee, I will at a later date reprint the article I wrote last year on the subject in my former column, Friday Discourse. Before then, I would like to forward another contribution on the issue of code of conduct for public servants.
Guidelines on the conduct of public servants are contained in Part I of the Fifth Schedule of the 1999 constitution. The broad principle of the code is mentioned in Section 1 of the schedule: “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.”
Section 2 (a) went further to mention that a public servant, without prejudice to the generality of the provision in Section 1, shall not be paid more than one emolument, regardless to his number of public responsibilities.
A public servant employed on full time basis is further prohibited by Section 2 (b) from engaging or participating “in the management or running of any private business, profession or trade” other than farming.
To ensure that these provisions are complied with, public servants, including political appointees, are requested by provisions of Section 11 of the schedule to declare their assets “immediately after taking office and thereafter (a) at the end of every four years, and (b) at the end of his term of office.” The declaration must include a statement of “all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.”
To begin with, it is worth mentioning the obvious fact that only a very negligible fraction of our public servants complies with the above constitutional provisions. We are therefore dealing with a law that almost nobody wants to comply with and which has failed to achieve its primary objective of checking corruption in our public service.
I am not pleading for the abrogation of constitutional provisions that relate to corruption. The fight must continue. What I am proposing is the repeal of the Section 2 (b) of the schedule that prevents public servants from engaging in any business, no matter how morally legitimate, other than their official assignment and farming. This is the direction to which our experience in the past twenty-six years points.
Our main contention here is that public servants can no longer maintain their families or meet other social responsibilities resting on their shoulders using the token called salary. The reasons for this are many but we will limit ourselves to three principal ones: the inability of government to manage the economy efficiently; its abdication from providing essential services to its citizens; and the extended nature of the African family.
It may be essential to note how the constitutional provision on the code has changed over time. First, it did not exist in the 1963 constitution because the need did not arise. When it was introduced in the 1979 constitution as a means of eternalizing Murtala’s fight against bribery and corruption, it did not carry the exception of farming. If I remember correctly, the exception on farming came somewhere in the mid-1980s. Later, after long periods of strikes, medical doctors were allowed to practice privately, in addition to their official duties. Then ASUU, also after protracted strikes in the first half of 1990s, was able to procure a concession to engage in private practice. Perhaps, for their docility, other civil servants are yet to get any relief.
Understandably, the economy was better managed during the First Republic: inflation was very small; the wages were adequate; public servants, and the public as well, were enjoying all forms of benefits and services from government through functional schools, hospitals, railways and so on; elite families were nuclear and distant from their places of origins; and finally, there was little pressure from the public on these services due to poor awareness, illiteracy, low population, etc.
The situation changed with the decline of the economy and in quality of governance, beginning from the early 1980s. Inflation set in and the currency has been undergoing devaluation, reducing the value of emoluments to a small fraction of their previous levels in 1960s and 1970s. Government also failed to provide public servants with essential services in transport, health and education, leaving them to their devices. Families of civil servants are no longer nuclear because of the social responsibility that African tradition expects them to shoulder. Finally, there is enormous pressure on the scanty social services remaining, arising from increased public awareness of their importance, rising literacy, urbanization and population explosion.
While we must concede that even the best government cannot meet the entire social demands of all its citizens, at the same time, we can assert that any government that cannot cater for the needs of its public servants stands guilty of gross negligence. So, since public servants, no matter the negligence of government, cannot sit back and watch their children die of disease or grow without education, they are compelled by survival instinct, if not persuaded by moral imperatives, to look for sources that will complement their income. Though some have used this as a pretext for indulging in corruption, many are violating the law out of necessity. The teacher who goes round to teach in more than one school in town, the university lecturer who runs kabu kabu in the evening with his personal vehicle and the civil servant who opens a business centre are all live specimens of Nigerians who are in honest pursuit of subsistence.
We may think in the first instance that such people are simply working for the education, health and general welfare of their kindred. On deeper reflection, however, I strongly submit that they truly deserve our commendation and we should regard them as epitomes of civic behavior. The children they train will live to be the engineers who will construct and maintain our infrastructure or the doctors who will treat our patients, regardless of who was responsible for their education. Left to government, there would not be any. Also, while this provision of the law has immensely contributed to brain drain and many of their colleagues, including myself, have abandoned public service in pursuit of greener pastures in the private sector, these public servants have chosen to remain in the system and seek other means of meeting their social needs within the ambit of moral legitimacy.
Beyond the province of morality, they also merit the approval of the law, not its wrath. In the present circumstances, the law should encourage them, not restrain them. It is on this basis that I am suggesting the need to reform the constitution to allow public servants to engage, where possible, in business activities other than their official duties. This will enhance legitimate earning and reduce the potential of corrupting our public servants. All that is needed is deleting S 2 (b) in Part I of the Fifth Schedule while its S 1 remains to serve as the broad framework based on which judgment could be passed regarding whether the personal interest of a public servant in any business he engages really “conflicts with his [official] duties and responsibilities. In addition, other provisions of the code regarding declaration of assets and liabilities, bribery, gratification and so on should stand in order to determine the legitimacy of whatever might be earned by the public servant outside his official emoluments.
Other countries, like Egypt, have for long allowed their citizens multiple jobs. After all, what makes a medical doctor, an agriculturalist or an academician different from other public servants? What is good for them could also be good for the engineer, the computer specialists, the administrator, and many others.
I know an objection will be raised on the presumption that removing the restriction will open a wide gate for diverting the attention of public servants from their official responsibility or even put them in positions inimical to their duties. An example here is the common practice where some medical doctors use government hospitals as bases for procuring patients for their private clinics.
Without quoting numerous jurists that space would not allow, my defense here is that no law is flawless; laws are made to be broken, as a jurist once said. They are meant to protect the good citizen, not the “bad man”, as Justice Holmes would call these evil servants. What is essential is vigilance on part of the authorities concerned to check the possibilities of negligence and abuse by enforcing the relevant enactments. If legislation will remove an injustice or a burden from millions of our public servants, it should not be refrained by the possible abuse of some few members of the public.
More importantly, we do not have to live with the hypocrisy of a constitutional provision that every one knows is a farce. As it stands now, S 2 (b) of the code of conduct has violated one of the principles of the rule of law: i.e. the law should be such that it is possible to comply with. “If it is impossible to comply with the law”, wrote Dr. J. M. Elegido in his Jurisprudence, “people are bound to break it through no fault of their own. If this is the case the government will then have a handy method of punishing its opponents under a cloak of legality: they will be prosecuted for the offences they are bound to have committed. Of course, in practice there is no need for a government to promulgate laws which are literally impossible to comply with…”
The case is worse for politicians who required by law to abandon whatever they have built for decades simply because they will be in office for a brief period, sometimes of not even up to a year. In 1999, Obasanjo warned that he would not condone any public servant engaging in private business and that anybody interested in business should leave his government. Today, he knows that was a utopia. I hope that Senator Ibrahim Mantu and his committee on constitutional reform will face reality and expunge Section 2 (b) of the Fifth Schedule in light of these and many other considerations.
APOLOGY
I was alerted by a contributor to NaijaPolitics forum on the Internet – rakiyeahmmed@yahoo.com – that “Dr. Rilwanu Lukman does not maintain a room talkless of a suite at Nicon Hilton Abuja.” Though I could not trace the detail of what she wrote other than this title of the mail, I immediately replied her that if what she said is true, then Lukman deserves my unreserved apology. It is now clear from the fire that the NNPC boss is receiving from the press that the column from where I received my information last year confused Lukman with Obaseke. I hereby express my sincere apology to Lukman and regret any embarrassment my publication might have caused him.
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