His Excellency, Major General Muhammadu Buhari (retired)
President of Nigeria & Commander-in-Chief of the Nigerian Armed Forces
The State House (Aso Rock Villa), Three-Arms-Zone
Federal Capital Territory (FCT), Abuja, Nigeria
A Presidential Sallah Gift & Call For The Return Of Constitutional & Procedural Democracy In Nigeria (Part One)
We, the leadership of International Society for Civil Liberties & the Rule of Law (Intersociety) have observed disappointedly the unfolding presidential events since the emergence of Your Excellency on 29th May 2015 as the sixth democratic civilian President of the Federal Republic of Nigeria. In other words, there are recorded breaches of fundamental provisions of the Constitution of the Federal Republic of Nigeria 1999, amended last in 2011, in the course of Your Excellency’s presidential policies and conducts so far; leading to torrential feeling of disaffection and public outcries among Nigerians.
As a result of the foregoing, Your Excellency, an in-depth investigation was carried out by the Democracy & Good Governance and the Civil Liberties & Rule of Law departments of our organization; and an indisputable finding was made to the effect that the constitutional breaches so referenced are most likely stemmed from Your Excellency’s military background and its restricted governance methods; which are totally repugnant to constitutional and procedural democracy provided under the 1999 Constitution. There may be no doubt that Your Excellency has good presidential intentions reminiscent of Your Excellency’s “war against indiscipline” of Your Excellency’s khaki governance days , but there is conviction in most social quarters that Your Excellency’s present presidential approaches are repugnant to the fundamental provisions of the 1999 Constitution.
Totality of these, Your Excellency, is found by our organization to have resulted from lack of presidential knowledge of the fundamental provisions of the Constitution and their enforcement or application procedures. It is possible that the letters of military’s politico-legal system; such as moribund Decrees No.2 and No.4 of 1984 have gone, but their spirits still remain intact; leading to sort of the present “diarchic presidential governing styles” making their way steadily into Your Excellency’s presidency. Following the foregoing, therefore, the Democracy & Human Rights Education department of our organization has strongly recommended presentation of a copy of the 1999 Constitution as “a presidential Sallah gift” to Your Excellency. Its delayed public presentation via courier services during the recent Sallah Feast followed Your Excellency’s state visit to the United States of America.
The Intersociety’s democracy & rights education department also recommended strongly that the Federal Ministry of Information should immediately set up “an ICT library unit”, fully connected to internet for Your Excellency’s presidency at the State House as well as a provision for personal use of an internet-powered “palm-top”. The totality of the foregoing is to ensure that Your Excellency is fully grounded with the provisions of the 1999 Constitution as well as ensuring that Your Excellency is not left out in the 24 hours global village accessibility, for the purpose of putting Your Excellency in the know at all times as it concerns the back and forth movements of the global socio-political events. Global socio-political events move back and forth leading to, for instance, federations and States opting for statehood, fusion and diffusion (i.e. East and West Germany’s fusion into Federal Republic of Germany on 3rd October 1990, Soviet Union’s diffusion into fifteen sovereign States on 26th December 1991, Czechoslovakia’s diffusion (Velvet Divorce) into Czech and Slovakia Republics on 1st January 1993, and independence of South Sudan on 9th July 2011 and its membership of the United Nations as its 193rd Member-State and world’s newest sovereign State).
Constitutional & Procedural Democracy:
Your Excellency, Sir, Constitutional Democracy is simply a government that strictly and justly governs its people according to the demands of the country’s constitution. Where Constitutional Democracy is entrenched, it gives rise to Procedural Democracy, which recognizes and strictly applies the rule of law through the (1) supremacy of the constitution, (2) equality before the law, and (3) civil liberties. In these, governance policies and actions of those holding or exercising judicial, legislative and executive offices or powers, particularly Your Excellency; must be conducted through separation of powers and due process including fair hearing. In the application of due process including fair hearing, for instance, its two cardinal principles: audi alteram partem(hear the other side or hear both sides) and nemo judex in causa sau (one should not be a judge in his own case) must be upheld and applied to the letter at all times and in all circumstances. In the course of fighting corruption and other street and political crimes, no citizen of Nigeria should be arrested, detained or condemned unheard and untried. Section 36 (5) of the Constitution also mandatorily provides for presumption of innocence of the accused persons until judicially found guilty.
Origin Of Constitutional Or Limited (Democratic) Government:
It is called a limited democratic government because everybody including Your Excellency is subjected to the provisions of the constitution and principles of the rule of law. Your Excellency must be reminded again that Your Excellency’s current democratic presidency is not the same with Your Excellency’s military khaki maximum regime of 1st January 1984 to 27th August 1985; which operated under a series of draconian decrees including Decrees No.2 (indiscriminate arrests and detentions without fair trial)and No.4 of 1984( anti press freedom). Also, “the Constitution” operated under the referenced inglorious epoch is totally different in spirit and letters from the present 1999 Constitution under which Your Excellency became Nigeria’s sixth civilian President by election and by constitutional oaths on 29th May 2015.
Therefore, through the immortal philosophical works of Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean Jacques Rousseau (1712-1778), the idea of Constitutional or Limited (Democratic) Government was conceived and imbedded in Social Contract. From the United States of America where Nigeria adopted its present constitutional & procedural democracy, it (USA) in turn, adopted it from John Locke’s 1690 famous book called the Second Treatise of Civil Government. Following the creative thinking of the United States’ first democratic President, Thomas Jefferson, the US Independence Constitution adopted in July 1776 drew its inspiration from the great work of John Locke under reference.
According to the US Independence Constitution, drawn from John Locke’s 1690 book-Second Treatise of Civil Government:“We hold these truths to be self evident that all men (and women) are created equal and endowed with certain natural and inalienable rights, and most important being of life, liberty and the pursuit of happiness. And to protect these rights, men set up government whose authority rests on their consent. And whenever a government ceases to do what it has been set up for, its citizens have a right to change it or its order and put in place a new government or a new order that will provide for their safety and happiness”.
That is to say that it is “the Social Contract” that gave birth to limited or constitutional democratic government and human rights simultaneously. With the former charged with caretaker responsibility over the latter. The Fundamental Objectives & Directive Principles of State Policy in the Chapter 11 of the 1999 Constitution (Sections 13 to 21) is Nigeria’s version of the Social Contract, which Your Excellency constitutionally sworn on 29th May 2015 to uphold and apply at all times.
Fundamental Breaches Of The 1999 Constitution By Your Excellency’s Presidency:
The Preamble of the 1999 Constitution provides as follows: “the Constitution of Nigeria is created for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of Consolidating the unity of the our people”. By Section 1 (1) of the same Constitution, “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”. By its subsection 2, “the Federal Republic of Nigeria shall not be governed, nor shall person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution”. By its subsection 3, “if any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that other law shall to the extent of its inconsistency be void”.
(1)Going by Your Excellency’s presidential conducts with respect to the affairs of Your Excellency’s political party called “All Progressives Congress (APC)”, Section 1(1) and Section 1 (3) above have been observed in fundamental breach. From the clear letters of the Constitution, Your Excellency’s political party and its conducts or affairs are inferior and subject to Section 1 (1) of the Constitution; which is also why Your Excellency was not sworn in with Your Excellency’s party “constitution”, but with the 1999 Constitution.
Your Excellency has also consistently made a vindictive reference to “election results of the Southeast and the Southeast” as a fundamental factor that would determine Your Excellency’s governance approaches towards the areas. This is also a fundamental breach of the Preamble of the Constitution, which mandates Your Excellency to “ensure good government and welfare of all persons in the country”. Party affairs and elections are constitutionally relegated once their beneficiaries are administered with the constitutional oaths of office and allegiance.
By Section 147 of the 1999 Constitution, “there shall be such offices of Ministers of the Government of the Federation as may be established by the President”. By Section 147 (2), “any appointment to the office of Minister of the Government of the Federation shall, if the nomination of any person to such office is confirmed by the Senate, be made by the President”. By Section 147 (3), “any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of Section 14 (3) (geopolitical spread) of this Constitution”; provided that in giving effect to the provisions aforesaid, the President shall appoint at least, one Minister from each State, who shall be an indigene of such State”.
(2) Your Excellency has observed the above constitutional provisions in gross breach by operating presidentially and democratically for two months without a properly constituted “Federal Executive Council” or council of ministers. Till date, Your Excellency’s presidency does not have “the Secretary to the Government of the Federation (SGF)”. This is a clear violation of Section 171 (2) (a) of the 1999 Constitution. By the “spirit and letters” of the Constitution, Your Excellency is legally and morally obligated to uphold and apply at all times the provisions of the 1999 Constitution. It is totally inexcusable for Your Excellency to operate the country’s presidency for two months without ministers and SGF on account of absence of constitutional deadline. This action of Your Excellency threatens the pluralistic composition of Nigeria and denies all federating units and ethnic nationalities right and sense of fair representation in the constitutional democratic Nigeria. In the spirit of the Constitution and pluralistic composition of Nigeria, Your Excellency is morally guilty.
By Section 13 of the Constitution under the Fundamental Objectives & Directive Principles of State Policy (or Nigeria’s Social Contract), “it shall be the duty of all organs of government, and all authorities and persons, exercising legislative, executive or judicial powers in Nigeria, to conform to, observe and apply the provisions of this chapter of the Constitution (Chapter Two)”. By Section 14 (2) (a), “it is hereby, accordingly, declared that sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority”. By its subsection 2 (b), “the security and welfare of the people of Nigeria shall be the primary purpose of government”; and by its subsection 2 (c), “the participation by the people in their government shall be ensured, in accordance with the provisions of this Constitution”.
(3) The above provisions, Your Excellency, are fundamentally anchored on “freedom from want and fear”. Truly speaking, they have been observed in breach with respect to Your Excellency’s public comments and actions so far; which appear vindictive, discriminatory, and confrontational and identity threatened. One of which is Your Excellency’s office appointments so far.
For: International Society for Civil Liberties & the Rule of Law (Intersociety)
Emeka Umeagbalasi, B.Sc. (Hons) Criminology & Security Studies
Chiugo Onwuatuegwu, Esq., (LLB, BL), Head, Democracy & Good Governance Program
Uzochukwu, Oguejiofor-Nwonu, Esq., (LLB, BL), Head, Campaign & Publicity Department
Obianuju Igboeli, Esq., (LLB, BL), Head, Civil Liberties & Rule of Law Program