ANAMBRA CRISIS

ANAMBRA CRISIS: PRESIDENTIAL RESPONSIBILITY AND THE ART OF MAKING AN ASS OF THE LAW

For those still in doubt about the role of the President, Chief Olusegun Obasanjo in the Anambra crisis, the latest interventions of the Federal Attorney-General, Chief Akinlolu Olujinmi should go a long way in helping them make up their minds. Immersing Anambra in foggy and questionable legalities would seem so far to be drowning virtually every observer and commentator in sight; yet we hear the voice of Jacob so loudly and so clearly, while Esau's hands revel in vulgar impunity.

Justice Stanley Nnaji's black market judgment of Friday, January 2 cannot be normal in its defiance of all known logic and reason. How could anyone put himself through that after witnessing the opprobrium Justice Wilson Egbo-Egbo is suffering presently for such adventurous judicial overstretch? Why would Nnaji, a man who's spent several precious years scouring the law as a student and practitioner suddenly decide to throw everything away in one fleeting moment of judicial madness? Was he pushed; if so, by whom?

Of course, everyone seem to point to Mr Uba, and why not? After all, he's said he's the ultimate granddaddy of Anambra politics having single-handedly installed every political person in elective office in Anambra PDP, including the Governor, whom he's kicked, slapped and locked in the toilet for being a little too stubborn for comfort! If anyone thinks this is some exaggeration, I suggest they think again, because Mr Uba indeed said so publicly; and, significantly, no one has been out here to dispute him. Not very curiously, the only man Mr Uba calls "Daddy" is President Obasanjo and we've seen so much to suggest that this could be true. In fact, it was reported that during the second to the last presidential media chat, "Daddy" had an opportunity to play mother-hen to his "son" when one of the media panellists asked about his view on the July 10 abduction incident. He was said to have vehemently and angrily retorted repeatedly, "who abducted whom?" This reaction, needless to say, left those present baffled. If anyone needs further proof of political paternity, do they need any more than this President's 'child' being surrounded and protected by 200 mobile policemen at the tax-payers' expense?

'Pure water' business must be sumptuously lucrative, otherwise how could he have been able to sponsor these huge political escapades on behalf of himself and others? And, of course, he must be God or something close, considering his capacity to send grown, professionally successful men (he himself is a Class 3 dropout) to go obliterate themselves in his service. And they do so, apparently very eagerly and gladly too! For instance, when Uba coughed, Raphael Ige ran down from Umuahia, captured Ngige like some common criminal and held him in the makeshift prison that is Ikenga Hotel at Awka, until the latter managed to find a cell phone to make that call that saved his bacon. Mr Ige was days away from a honourable retirement when he got the call; yet, he embraced it gladly, creamed himself all over with ignominy and died very suddenly. Also, just as I've inferred earlier, Justice Egbo-Egbo heeded that call too in far away Abuja and gallantly took his poison, administered in an initial dose of suspension, by an obviously scandalized National Judicial Council. But to think that the Egbo-Egbo route would be treaded so soon by another judge, (who, as we've since learnt still has a three-year case pending with the National Judicial Council) days after the unfathomable but loudly touted Owerri Accord, must be a rude kick in the teeth for any Anambrarian or Nigerian expecting some Happy New Year.

But Mr Nnaji has actually done us all a favour. His judgment has set all the foxes in this matter scurrying out from behind their ferns; and they don't come bigger than the Attorney-General of the Federation and the Inspector General of Police who, between them have so far entertained us with the best double act we've ever seen since the Blues Brothers! Mr Tafa Balogun, who, at every given opportunity proclaims himself "a lawyer by profession" was certainly not thinking of the law in his indecent haste to obey the imbecilic judgment of Mr Nnaji; and, of course, he had someone to cover his back in his able partner, Chief Akinlolu Olujinmi, the Honourable Attorney-General and Minister of Justice! While the IG was busy recalling the Governor's security detail, preparatory to the final onslaught pursuant to the court order and in the process setting Nigeria afire in open-mouthed wonderment, the silence from Aso Rock was so deafening that one almost thought the whole of the Federal Executive Council must have suffered the effect of some sleeping gas. But when the Awka High Court countered the Enugu Court judgment, obligating the same IG to return the security detail (assuming he was that law-abiding), guess who came out on the same day with a statement. Yeah, you got it, the second Blues Brother.

The Chief Law Officer of our nation made a statement on behalf of the Federal Government, which reads thus:

"On 2nd January 2004, Honourable Justice Nnaji of Enugu State High Court issued an order in which he directed the Inspector General of Police to remove the Governor of Anambra State, Dr. Chris Ngige forthwith from office, having resigned as Governor of Anambra State. In obedience to the rule of law and considering that it might constitute a serious embarrassment to carry out the order of the court strictly in accordance with its terms, the Inspector General of Police only directed that the security paraphernalia in and around the Government House withdrawn. The Inspector General further directed for the personal safety of the Governor, that his armed personal security be retained with him.
"Today, 6th January 2004, the Anambra State High Court in suit No. A/230/2003 between Dr. Chris Ngige Vs Anambra State House of Assembly and another issued an order which inter-alia restrained the Inspector General of Police from implementing or enforcing the order of Hon. Justice Nnaji of Enugu State High Court in Suit No. E/503M/2003 between Hon. Nelson Chukwu Vs Inspector General of Police and others.

"In the light of these conflicting orders issued by courts of coordinate jurisdiction, the Inspector-General has been advised to maintain the status quo pending the decision of the Court of Appeal in Enugu on the application of Governor Ngige now pending before the court. In the meantime, everybody is advised to maintain the peace and go about his lawful business".

Now, having heard this, every newspaper, news organization, internet outlet and commentator went to town with the news that the AG had directed the IG to return the Governor's security detail and for things to return as they were while we await the Court of Appeal's ruling on the matter. No one bothered to scrutinize the statement very well or ask the AG some pertinent questions.

(1) In trying to defend the action of the IG, the AG described it as "in obedience to the rule of law; but what law? Mr Nnaji claims to rely on Section 46 of the Constitution, which grants special and original jurisdiction to the High Court to entertain cases relating to breach of fundamental human rights (whether criminal or civil), but conveniently forgetting that the same constitution makes it clear that nothing in its provisions should infringe the immunity of the Governor. In other words, while the court may entertain such suits where defendants are ordinary citizens, it lacks jurisdiction prima facie where the defendant is a Governor. And yet Chief Olujinmi, the Chief Law Officer of the Federation says Mr Balogun was acting "in obedience to the rule of law".

(2) In clear contradiction to his position above, Chief Olujinmi admits inadvertently that "it might constitute a serious embarrassment to carry out the order of the court strictly in accordance with its terms"; but why should this be if the IG is supposedly acting "in obedience to the rule of law"? Who is likely to be embarrassed by the Chief Law Enforcement Officer of the Federation carrying out a lawful duty? The answer lies in what is not said. Olujinmi understands clearly that it would be easier for a pig to fly over the moon than for him to directly justify an extra-jurisdictional order, unconstitutional to the hilt, such as this one shaking the democratic foundations of the state. But are his hands tied; and, by whom?

(3) How does the withdrawal of the "security paraphernalia in and around Government House" serve to avoid the embarrassment he so dreads? How does it constitute "obedience to the rule of law", if the law in question is stated unambiguously to be the removal of the Governor? Does an act preparatory to the removal of the Governor in the form of first removing his security detail constitute "obedience to the rule of law"? Does it constitute giving effect to the order of the court when the Governor himself is still in office? Again, the answer lies in what is not said, which is that this was a premeditated siege policy reminiscent of the games of brinkmanship perfected by the military in their time in government. The AG and the IG are interested in the Governor jumping rather than being pushed. These are elaborate attempts to protect their flanks, but in the end they've left their behinds roundly exposed.

(4) The statement itself was not aimed at sorting out the matter, but rather it was designed to checkmate the order of the Awka Court and indeed validate the order of Nnaji. The Awka High Court was throwing spanner into their carefully crafted script with that suit No A/230/2003, which restrains the IG from implementing or enforcing the order of Justice Nnaji. In other words, because the interpretation of the Awka High Court order obligates the IG to return the withdrawn security detail, whose withdrawal is a 'partial' implementation of Nnaji's order, the AG had to suddenly jump in on the same day the judgment was delivered to stop the order. Yes, the Federal Government only woke up when the Awka High Court made its counter-ruling. This idea of checkmating the Awka ruling is buried within the last paragraph above in the AG's statement.

(5) While the press and sundry commentators were busy reading that last paragraph to mean that he or the Federal Government has ordered the IG to return the withdrawn security detail (which would mean in essence ordering him to obey the Awka High Court order), what Chief Olujinmi meant was exactly the opposite! Chief Olujinmi was not talking of returning to the status quo ante, i.e. the position before the Enugu High Court order and the subsequent withdrawal of the security detail; rather he was talking of maintaining the STATUS QUO! The term Olujinmi used was "maintain the status quo", not "return to the status quo ante". Of course, this was a deliberate attempt to confuse, as it did the press and every commentator so far. What the AG was saying really was that the IG, having gone to some extent "in obedience of the rule of law" by withdrawing the Governor's security detail, he has to "maintain the status quo", that is ensure that things remain as they are (not as they were) "pending the decision of the Court of Appeal in Enugu on the application of Dr Ngige". In other words, the IG should NOT return the "security paraphernalia in and around the Government House", which he has already withdrawn pursuant to the Enugu court order!

(6) The proof of the above is that the IG did not give the order to return the security detail despite what was already widely reported in the press; and the AG deliberately kept silent thereafter, doing nothing to insist the IG returns the security detail, because between both Blues Brothers they know what he meant. They were and still are hands in glove ripping the Constitution apart, while having a frolicsome laugh at the 'misrepresentation' by the press, because that is exactly the effect they want created.

In law, where an act of illegality or questionable legality as the removal of a Governor's security detail has been committed by an agency/official of state like the Police or IG, you do not "maintain the status quo" as directed by the AG, but return to the status quo ante, pending the determination of a higher court. This means returning things as they were before the act of illegality or questionable legality was committed, which is what ought to have happened here pending the appeal. However, the effect of maintaining the status quo as directed by the AG is to give a seal of approval to the questionable Enugu Court order, even before the Court of Appeal has had the opportunity to determine the matter. Thus, the fact of the matter is that up to this stage, Justice Nnaji, the AG and IG were firmly on the same page. It was the press and Nigerians that were deceived!

Soon after the widely-celebrated Court of Appeal's interim order on January 12, the Blue Brothers struck again.

The Court of Appeal's order states:

"The Inspector-General of Police, the second respondent in this application, by himself, agents, servants, privies or otherwise, howsoever, is hereby restrained from, any manner whatsoever, removing the first Appellant/Applicant, Dr. Chris Ngige, from office as Governor of Anambra State or in any manner preventing or obstructing or from further preventing or further obstructing the performance of his duty as governor of Anambra State vide the enforcement of the order of Enugu High Court given on the 2nd of January 2004 in suit no E/543/M/2003 Hon. Nelson Achukwu vs Inspector General of Police and three others, pending the determination of the appellant application."

So, what did the IG do? He quickly ran to the 'clearing house', the AG, to ask him what to do. In a letter Ref No.SB.3514/IGPSEC/ABJ/VOL.1/73, dated 14th January, 2004, the IG wrote the AG seeking the latter's interpretation of the Court of Appeal order. The AG responded through a letter (Ref: HAGF/IGP/2004/vol.1), dated January 15, 2004.

Below is a text of that response:

"I refer to your letter Ref. No. SB.3514/IGPSEC/ABJ/VOL.1/73 of 14th January, 2004 in which you sought my views on the interpretation of the Court of Appeal order dated 13th January, 2004, attached inter alia to your letter under reference.

I have read the order and my views are as follows:

The order restrains you personally and through any of your agents, servants, workmen, or privies from

(i) removing Dr. Chris Ngige from office as Governor of Anambra State or

(ii) preventing or obstructing or further obstructing the Governor from performing his duties as Governor of Anambra State towards enforcing the order of Enugu High Court dated 2nd January, 2004 pending the determination of Governor Ngige's motion before the Court of Appeal. In other words, you should not remove the Governor from office or obstruct him in the performance of his duties while this motion is still pending for decision.

This type of order is what is called prohibitory or negative injunction. Such an order restrains you from doing a specified act. On the other hand, an order that requires you to do something is usually framed in mandatory or positive terms. In other words, it will direct you to carry out a particular action. Such an order may be tied to a time frame or may just be left open.

From this explanation it is clear that the order of the Court of Appeal has not directed you to do anything. Rather it restrains you from doing any of the acts mentioned. Therefore the suggestion by Chief U.N. Udechukwu (SAN) in his letter dated 14th January, 2004 that the order of the Court of Appeal directed you not to "comply with the Enugu High Court order and to continue to treat Governor Chris Ngige (OON) as the Governor of Anambra State and to desist from interfering with his functions and to return to the status quo as it was before the Enugu High Court order was made" does not with respect correctly represent the meaning of the court order. The effect of the order is to preserve matters as they were as at the time the parties appeared before the court. In other words, those things that had been done pursuant to the order will remain so until the pending motion is disposed of. Things not already done should not be done until the motion is disposed of. This is to ensure that while the matter stands adjourned nothing is to be done to alter the state of things. As a matter of settled law, courts do not make an interlocutory order that will dispose of the substantive issues which are yet to be tried. The application of Dr. Ngige has not yet been argued and nobody including the court itself can prejudge what the order of the Court of Appeal will be on the application. This is why when courts are adjourning a matter before them and they consider it necessary to make an interim preservative order as in this case, the order will be couched in a language that will leave the substantive matter as a life issue. Were the interpretation suggested by Chief Udechukwu (SAN) to prevail, it means there will be nothing left to argue when the substantive application comes up on the adjourned date. It is only the final order of the Court of Appeal on the adjourned motion that is capable of directing you to "return to the status quo as it was before the Enugu High Court order was made."

It is my hope this interpretation will satisfy your inquiry".

On the face of it the explanation given by the AG would seem to be right, bearing in mind that the Governor's legal team did not ask the court specifically for a mandatory order requiring the IG to restore the already withdrawn security detail pursuant to implementing the order of Justice Nnaji. They have gone to the Court of Appeal only seeking to invalidate the January 2 judgment by Nnaji, which in itself is the substantive issue and therefore, even at this stage, remains res novo (that which is yet to be decided). Indeed, Udechukwu made an application to the court only for an order directing the police to allow the Governor to remain in office by suspending the decision of Enugu High Court order pending the determination of the appeal. But, as Chief Akinlolu Olujinmi pointed out in his letter above, this in itself amounted to the substance of the case before the Justices and so cannot be the subject of an interim order in the form demanded by Udechukwu. If Udechukwu had objections to the action of the IG so far in withdrawing the security detail, he ought to have separately prayed the court to grant a mandatory order to the IG to return the withdrawn security detail, making the case why this should be so. But he didn't; why?

The answer of course lies in the very political nature of the case. As an Attorney-General and Commissioner for Justice, the man is wearing two hats; one legal, the other political (and this also applies to the AG of the Federation and Minister of Justice). As an AG, Udechukwu is expected to present legal arguments in support of his government's case, but as Commissioner for Justice, he's restrained by the extreme political demands of the situation. The truth is that the question of trust has come into the matter, as the Governor can no longer feel comfortable with the return of the withdrawn security detail, since he has no operational or legal control over them. Should he seek for the court to mandate the IG to return his men, knowing the risk he runs by leaving himself open to more mischief? Supposing one or more member(s) of this security detail, pursuant to an order from their boss(es) abduct(s) him again or indeed shoot(s) him? For him, that particular issue has gone beyond the legal; it's now about survival, because he understands the overwhelming politics of the matter. He's perfectly comfortable with the volunteers looking after his security for the moment; but for how long?

While I understand Ngige and Udechukwu's predicament, I personally would have thought that a more proactive approach should have been adopted. The legal team should have prayed the court specifically for such a mandatory order even if at the end of the day the Governor exercises his political discretion to reject the security details, supposing the IG does comply. Or, even if he's to accept them back, he could demand a guarantee from the IG and his boss, the President, that they will not use the security detail to harm him or do anything to flout the order of the court, since it would appear he has very good reasons to believe they are not acting in good faith so far. This approach would have exposed the real intentions of the IG and prevented the AG from employing the unhelpful legalese that he's steeped in right now, which, as anyone can see, is only geared to ensuring that the unreasonable order of Justice Nnaji prevails, either by full or partial implementation as it is now. This of course is in bad faith.

This obvious bad faith has been evident throughout this crisis. One recalls that he was the man first mandated by the President after the July 10 abduction to look into the whole Anambra crisis and report back. But then he conveniently disappeared from view when the same President came up with his "family affair" conundrum that proved to be a Trojan horse for more unconstitutionality. There is nothing to suggest that he went out there to get the facts and advice the President accordingly. There's nothing to suggest that he consulted with the Governor, Udechukwu or the latter's predecessor in office. Up till today, Nigerians are yet to be told what the AG's findings are, if any; yet, his pronouncements and those of his boss, the President, show that they're comfortable being on the side of the coupists and the sundry judicial criminals that have sought every means to muddy the waters. It is all well and good to be craftily legalistic now, but he ought to realize that as a Minister of Justice and the number one officer in the National Temple of Justice, he cannot be judged solely on the law. He ought to see beyond the bare form he's adopted thus far. Does he think Nigerians would praise him if, God forbids, some persons use the opportunity created by the security lacunae to harm or kill Ngige? What is he going to do if tomorrow the police starts arresting some of these young volunteers protecting the Governor on such trumped-up charges as armed-robbery, extortion, being members of Bakassi Boys, etc? Is he prepared and are his bosses equally prepared for the constitutional and political fallouts from such a scenario?

At this juncture, I'd want to refer back to Chief Olujinmi's statement of January 6, specifically the portion stating: "The Inspector General further directed for the personal safety of the Governor, that his armed personal security be retained with him". Now, is it possible, that this particular 'assurance' on the availability of the Governor's "personal security" may have guided the Court of Appeal's decision not to see the need to grant a mandatory order to return the security detail withdrawn by the IG (apart from the fact that Udechukwu did not specifically ask for such an order)? I ask this question bearing in mind that the court did start off by saying it was granting the interim order in consideration of the "circumstances of the matter". Did the Court of Appeal feel that the Governor is protected enough by this assurance of his "personal security" being available? Well, this would be dangerous, because Ngige himself did reveal in one of the reports that he was tipped off about the withdrawal of the security details and that the President had indeed determined himself that he be left with only one policeman! He even quoted Achike Udenwa, Governor of Imo State, whom he claimed heard this from the President himself. Udenwa is yet to deny this, so we must accept it as true until the contrary is proven. Now, this raises the troubling question of whether leaving behind a lone policeman constitutes enough "personal security" for the Governor of a state. Is this right in the face of the clearly dangerous situation prevailing in Anambra state? In what circumstance(s) can anyone conceive of the Governor of a state being without security?

I think the Court of Appeal ought to have considered the overall effect of the order it granted. While it was widely celebrated as a return to the rule of law after the Nnaji nightmare, it should have left no room for the kind of interpretation that indicates it sanctions the illegality already committed in the name of implementing the legally and politically embarrassing Nnaji order. This is the effect of not specifically asking the IG to return the security detail. Interpreted strictly, the order itself is of no value. Would the court grant an order in vain? The Governor clearly suffers from the 'partial' implementation of Nnaji's order evidenced in the IG's withdrawal of the security detail. This explains why he had to go into hiding a few times to make himself "unavailable for assassination", as he comically it. I would expect that if this were to later be an issue before the court, it should define this order more proactively to cover the whole circumstances of the case, since that is indeed the basis upon which it gave the order in the first place.

Sunday ThisDay of January 18, 2004 reported the Attorney-General as further stating to the IG that providing Ngige with security would be illegal in view of the court's order. That is absolutely not true. The IG, as the Chief Law Enforcement Officer of the Federation should assess the situation and take appropriate action as constitutionally demanded of him. He knows the risk involved in leaving a Governor without security. Even if the order did not specifically direct him to do anything, it also did not direct him not to do all that is absolutely necessary to protect the Governor. In fact, a proactive reading of the order indicates that this is exactly what he should do. The Court is not interested in the politics of the issue, but it does indicate that it is very interested in the security of the Governor. It is not the court's place to tell the IG how to do his job, but it does by the order hold him to certain expectations, which includes the fact that the Governor should be secure enough in performing his duty as Governor of Anambra state. It is obvious that the security is not in place at this moment and thus it is the place of the IG to correct that.

The AG is merely scare-mongering pursuant to his real objective or that of his boss, which is to make it impossible for Ngige to function as a Governor and force him to finally give up in frustration. The AG has shown that he's signed to this unconstitutional purpose, which is to the detriment of the people of Nigeria generally and Anambrarians in particular. Perhaps, it is time he takes heed of the dictum of the court in the case of Attorney-General (ex rel McWhirter) v IBA (1973):

"As the guardian of the public interest, the Attorney-General has a special duty in regard to the enforcement of the law… it is his duty to represent the public interest with complete objectivity and detachment".

So far, Chief Akinlolu Olujinmi, the Attorney-General of the Federation and Minister of Justice is not looking like passing the McWhirter test.

Finally, I cannot end this without addressing the president specifically. I understand that he's due to travel out of the country again; but why at this very critical time? When all is said and done, the duty he has under Section 5 of the Constitution of the Federal Republic of Nigeria 1999 indicates that the buck stops at his table. The Anambra issue portends grave danger for our democracy and the rule of law. He can pretend that he cannot say anything now because the matter is sub judice, but there's nothing preventing him from examining his conscience and admitting, even if only to himself, that he hasn't acted as a leader where the Anambra issue is concerned. Whatever personal differences he and his friends/agents have with Ngige, he should realize that the interest of Nigerians and Anambrarians should be paramount. He's seen enough crises in his life to know where this could lead. Pride and stubbornness will not cut it. The earlier he reviews his position on this matter and takes corrective actions, the better for everyone.

No man is greater than his nation.

Feb 2004