Monday, November 17, 2008

THE EMERGENCE OF OBAMA BARRACK AS THE 44TH PRESIDENT OF UNITED STATES OF AMERICA: THE BEGINNING OF AN AFRICA RENAISSANCE? By Ademola Adewale Esq.


A Great day for Africa and the Black world: This is a very great moment in the history of not only the United States of America; the world's only surviving super power, the modern day Roman Empire but in the history of the world and of Africa particularly Black Africa. Yes, America has finally found its destiny as foreseen by its founding fathers that all men are equal and born free irrespective of circumstances of birth, colour or creed. This was the article of faith that gave rise to the American Dream which allows every American irrespective of his background to get to the very top including the Presidency of the United States. Even immigrants have benefited from this dream in one way or another, remember Henry Kissinger with his highly accented English, became Secretary of State within one generation of becoming an American citizen, same with Maudeline Bright.
But for members of the Black Race now called African-Americans it has been the longest walk to the top from slavery to the proclamation of freedom, to legitimized segregation (discrimination) to legal equality, through the Civil rights movement and affirmative action, it has been a long and bitter struggle for the Black man now famously referred to as Man of Colour to get to the very top in America. Even Rev. Martin Luther King Jr, that great prophet of God and civil rights leader who had a dream that his four children will sit together at a table with all of God's children irrespective of their colour, and will be judged by the strength of their character and not the colour of their skin; that the African-American will one day proclaim in the word of the Old Negro spiritual, 'Freedom at last, Oh Lord I am free at last,' did not live to see this Great Day as he was felled by an assassin's bullet 40 years ago. But he is in good company with his much earlier predecessor Moses the Prophet who prophesied about the promised land but did not get there. Rev. Martin Luther King must be full of joy, for the great day has come.
Right from the onset, the Blackman's great potentials have been obvious for all to see; after all it is universally acknowledged that Africa is the Cradle of Human Civilization but the history of (Black) Africa for several generations even till date belies any claim to civilization and human progress. Poverty, under-employment, backwardness, wars, and diseases genocides, famine and disasters, bad leadership, plundering and looting of the treasury by leaders, dictatorship and fascism and every imaginable negative tendency are the hallmarks of the African continent. So much so that many have doubted how the continent could ever in human history be the cradle of civilization. The continent for the most part seems to be on the receiving end of global progress and development whether it be technological, economic or political, giving Africa particularly sub-Saharan Africa the home of Black Africans a grave image of a dark continent. The fact that every now and then positive signs of the human genius emanate from Black Africa both at home and in diaspora has not done much to debunk the status of Africa as the dark continent. Thus the fact that from Africa have emerged, Wole Soyinka, Nelson Mandela, Desmond Tutu, Philip Emeagwali, Barth Nnaji and in the diaspora Dr. N.W Dubois, Marcus Garvay George Washington Carver, Tons Morrison, Ben Carson, Martin Luther King, such personalities are seen as a mere handful of geniuses, and as for black domination of sports from Jesse Owens, Muhammed Ali, Michael Jordian, Tiger Woods and the Williams' sisters such achievements have always been denied as mere evidence of physical ability although such negative comments are becoming difficult to make in view of the incursion of black athletes and even domination of otherwise 'white sports such as, Golf, Tennis and now Motor Racing by Tiger Woods, The Williams' Sister and the new kid on the Block, Lewis Hamilton. So for a Blackman to now emerge as President of the United States of America is undoubtedly the most glorious thing to happen to the Black Race in several generations.
Yes, Obama Barack carries with him the hopes of not only 40 million African American but 250 million Africans on the home continent to succeed as the most powerful man in the world for the next four years.
Implications of Obama's Victory for Africa and the rest of world.
Africa till date has remained a mere footnote in the foreign policy of the U.S.A while it might be naive to expect any extra-ordinary change to happen it is hoped that an Obama Presidency will accord Africa his rightful place in world affairs as a continent to be encouraged to develop as has been done with Latin America and the Asian tigers in Far-East Asia. It will be a great disservice to Obama's heritage as an African if he continues in the tradition of his predecessors including so called Negro-loving Presidents who only accorded Africa a patronizing attitude as a donor's basket for giving assistance towards the eradication of one disease or the other that gives some western donor agencies some warped messianic feelings. Hardly are efforts made to partner with African countries on economic programmes that will entrance the developmental efforts of African nations. Under an Obama Presidency, we expect genuine socio-economic partnerships. However, let no one be deceived that salvation will come from America or any where else in the development of Africa. Africans and Africans alone can accept Africa, the earlier our leaders accept the obvious the better for us.
In respect of the Middle-East, Obama with his African ancestry rooted in Islamic background together with his personal Judeo-Christian conviction is excellently placed to assert the right influence to keep the Middle-East peace process on track. He ought to better appreciate the fears and aspirations of the major stakeholders in the Middle-East than his essentially Judeo-Christian Predecessors.
By the same token an Obama Presidency should be able to retain America's leadership position in global matters in a less overbearing manner and be much more tolerant of opposing views. That is the only way America can earn and retain respect in World Affairs. That way there will be less and less inclination on the part of the U.S to force its opinions and ways on others in consequence of which there will be less imperialistic tendencies and more tolerable global friction. That should make for U.S staying away from avoidable conflict and wars. It will be sheer nativity to imagine that a benign or friendly America will attract universal respect, there will always be nations or people who are averse to the American way of doing things but a less imperialistic America stands a great chance of being tolerated by most members of the comity of nations. In such situation the U.S will attract a lot more global empathy for the inevitable conflict that might occasional arise where its interests are threatened.
On the issue of avoidable wars, the Obama Presidency should as a matter of urgency initiate a face-saving exit plain for the Bush's administration military misadventure in Iraq and Afghanistan. The withdrawal from these theatres of War should be swift but give the America military establishment a soft-landing so as not to give the impressionitis running away from these theatres of War with its tail between its feet as happened in Saigon in 1975. It is important in the interest of the American nation, and its influence globally that the ailing nation be not further bruised by a hasty and panicky withdrawal from war.
In any case, it should be obvious that the idea of fighting wars with even the best men and armaments thousand of miles away from home is nothing short of a recipe for disaster; it failed Napoleon Bonaparte is his Russian Campaign, it marked the beginning of the end of Hitler's Third Reich when he embarked on the Russian Campaign in winter, it failed the U.S in Vietnam and has done so once again in Iraq and Vietnam. Obama and his successors will do well to take these hard lessons of history to heart.
WHAT LESSONS FOR NIGERIA?
The lessons for Nigeria from Obama victory at the US 2008 Presidential elections are legion:
Democracy is about the people's sovereignty and their preference. The Americans wanted a change in leadership and they said so through their votes. If our democracy is to survive, our votes must count.

Politics is about issues and not sentiments of tribal affiliations. Here Obama being an ethnic minority would not have secured the nod of an of the big political parties, imagine an Ijaw man Edo, Tiv, Idoma, Efik, Urhobo, Itsekiri, Nupe or Isoko man wining in a free and fair, national election in Nigeria as our president. Until that day when we move away from the tottering and unstable politics of me tripod, Yoruba Ibo and Hausa we will not make any meaningful progress.
See the way the American candidates discussed issues and presented their vision to the people, there was robust debate about the economy, the war in Iraq social welfare, medi care, taxes on bi-corporation etc. though there were doses of ad hominem attacks and digging into the candidates past, these were in healthy doses and meant to test the candidate's suitability for high office. There were no cases of thuggery, electoral fraud and rigging, (there were of course machine breakdowns to show that humanity cannot be perfect) Godfatherism, intimidation etc that have conspired to make elections in Nigeria a nightmare.
An unprecedented 150 million Americans turned out to vote and election results were out within 24 hours. Our own electoral body INEC could not handle less than 60 million Nigerians who registered to vote. Granted that we are way behind technologically, yet there is no reason why we cannot have free fair and credible elections with results from even the most challenging terrain out in 48 hours.
Finally, President-elect Obama Barack was gracious in victory looking forward to working with his rival Senator John Mccain, the loser who too was gallant in defeat “Godspeed to my former opponent and ……. My president” said Mccain
There was no gloating in victory and vow to rule the nation for 60 years, there was no threat of going to the highest court in lard to “regain the mandates stolen”. Unlike Nigeria that is struggling with the fall-outs of the April 2007 elections almost 2 years after the event, not a simple dime of either the tax payers money or (money stolen from the tax payers re-styled) personal resources is going to be used to pursue election petitions in court. Elections have been won and lost and the great nation moves on. That to me is the mother of all lessons.
Conclusion
With the election of African-American Barack Obama as the 1st Black President of the United States of America, America has proven beyond any shadow of a doubt that it is indeed God's own country and the natural leader in the affairs of mankind at this point in time and for us as Africans who share brotherhood with new American President elect Barack Obama it is a momentous time
In our life time: (Country Ebony) and a wonderful period to be alive.
The learned Squib
The Bad Old Days
Everybody or almost everybody has been told that I have a case to answer before the Legal Practitioners Disciplinary Committee at Abuja on Monday the 10th November 2008. The Announcer was none other than the 'trial court' itself, and for maximum coverage used a popular national daily newspaper to advertise the “coming event”
The case has been on, at least on the cause list for five years. Five years of motion without movement, burning without heat.
Surprisingly there are many lawyers who do not know why I am on the cross of prosecution or that I am still standing trial before the LPDC. Such folks, in season, out of season, do walk up to me, to enquire why the “Abuja Summons”?
This piece is actually meant for the innocent and the young at the bar and, well, the old but the forgetful. Let no one mislead you about my case with the LPDC. I have defrauded no one, I have cheated nobody. I have not committed any contempt. And no judge could say of me as an advocate appearing before him that I deserve prosecution. I am not insolent.
I am before the “Sanhedrim” for the crime, of speaking out. Speaking out, loudly, boldly, directly and truthfully. I am on the cross for having the guts to tell the truth, no matter whose ox is gored.
The Squib, I tell you and you are hearing from the horse's mouth, was born as a reaction. A reaction to rot, a reaction wrought from the fire of indignation at the abuse and misuse of office at all layers of authority in the Judiciary, as well as in the bar.
I tell you in 1996 when I became a legal practitioner, the Lagos State Judiciary was in no healthy shape. Bribery, even extortion of money was the order of the day. There were so many dirty judges and magistrates then, whited sepulchers. Lords they were, but not lords of Justice, or masters of Equity, or captains of Fairness or paragons of Accountability. Rather they were judicial king-pins of mamonised proceedings and cash and carry rulings. As for the bar, it was reeking most foully of sharp practices. The bar was very scare in the number of decent and noble practitioners. And infact, many older, senior lawyers employed crooked means to win their cases and served as no good examples to the younger ones. Such lawyers were and some still are Senior Advocates of Prepaid Judgements (SAPJ).
Things were so bad then, that litigants preferred the service of lawyers who know Judges to the services of lawyers who merely know the law! That, my dear, was the situation. It was a stinking corruption that gripped Lagos State Judiciary with so much swaggering arrogance and insolence.
Everybody, litigants, lawyers and the very few upright judges know how terrible and horrible the situation was but nobody cared enough to do anything much about it.
Where was the Bar, the association of lawyers, all that while? The bar, I tell you, was on a voyage of self exile and cowardly, dumb retreat. No victim of oppression and injustice in the Judicial System could not run to the bar and get succour. It was a Bar, self compromised either morally or intellectually. It was a bar which had forgotten her true mission of societal guidance and leadership.
Then thunder, in the form of the Squib, struck and the rest, as you are even witnessing today is history.
Permit to say this, the Squib is a positive factor in the little transformation of the Lagos State Judiciary from being blantantly corrupt and inefficient as it was in the 1990s and early 2000s to its present state. For those who may not really appreciate how terrible the misconduct of judges, magistrates and lawyers was in the 90s and the early 2000s in the Lagos State Judiciary, I tell you this true live story.
Four days after moving and losing a motion ex parte, a particular counsel, Barrister X, who himself is now a judge, came back to the court, very much prepared to move his motion on notice.
As he cleared his throat to do just that, Barrister X was shocked to hear the presiding judge say to the counsel on the opposing side.
“Are you aware that I have granted an injunction in this case?”
Barrister X and his junior could not believe their ears, however they managed to hide their shock and kept a discreet silence. It was later they learnt the truth-their clients without notice to counsel, had gone to “see” the judge! Compromised, the judge had rewritten his records and ruling!
Unbelievable, you say? But that's the gospel truth. It was because of situations like this that the Squib was born. So that we can have the “good new days.”

Thursday, November 13, 2008

THE (IL)LEGALITY OF OATH OF SECRECY By Ademola Adewalw


The Yaradua Administration still smarting from the self-induced embarrassment over the Presidential resignation saga took yet another controversial decision by swearing all presidency cabinet members to an Oath of Secrecy.
Presumably, the Oath of Secrecy is to stop the information leaks from official quarters of official secrets including potentially politically damaging news of Mr. President's health condition.
It must be said without any equivocation that this new action is yet another Faux Pas: a big political blunder that has arisen from self-imposed political panic. What is even more baffling is that the hide and seek approach of the past did not prevent the spreading of the most wicked rumours about the President's health; is it then this “gag order” of the “Secret Order of the Presidency” that will eliminate damaging rumours about not only the President's state of health but various actions and policies of state?
Well beyond the political inexpediency of the Oath of Secrecy is its manifest illegality. A cursory look at the Constitution reveals that no part of the nation's Supreme law supports the taking of an Oath of Secrecy by any public official. None of the oaths prescribed in the schedules to the Constitution inclusive of the Oath of Allegiance qualifies for an Oath of Secrecy and several sections of the Constitution make it a ground of disqualification for a citizen who belongs to a secret society or cult to aspire to public office Sections 66(1) (g), 107 (1) (g), 137 (1) (h), 132 (1), (h) of the 1999 Constitution.
The Oath of Secrecy is reminiscent of the odious Oaths of Secrecy and Allegiance that cults and secrecy societies swear their members to.
In the mid 70s the military government of the then General Olusegun Obasanjo, in the aftermath of the great civil service purge was mindful of the grave dangers that allegiance to secret societies and cults can do the smooth running of public service and the productivity necessary of an efficient bureaucracy outlawed officers. At the time public officers had been required to openly renounce membership of secret societies, in addition to taking Oaths of allegiance to the Nigerian nation.
Ever since the nation's laws and Constitutions have continued in the tradition of outlawing membership of secret societies. Now that the Presidency has prescribed an Oath of Secrecy for public officers at the Federal level, is this not an open challenge to the nation's Constitution which the President and all public officers have sworn to defend and uphold?
The decision of the Supreme Court in A.G Federation V Atiku Abubakar (2007) 4 S.C (pt II) 62: where the central issue was whether the loyalty of the Vice President to his President was such that once he decamps to another party he automatically loses his seat, the Supreme Court held interalia that his loyalty was first to the Constitution rather than to the President and not any office.
Furthermore, every public officer including Mr. President holds office at the pleasure of the sovereign people of Nigeria by virtue of Section 14 (2) of the Constitution.
Thus the loyalty of all public officers is first and foremost to the Nigerian people, thus the Oath of Secrecy administered on serving public officers by the President is a direct challenge to the sovereignty of the Nigerian people.
It is also a fronted confrontation to the right of the Nigerian people to have access to information in line with Section 39 of the Constitution which the much desirable freedom of information FOI Bill seeks to enhance.
At yet another level the Oath of Secrecy reveals the level of opposition to the FOI bill not only from lawmakers but also from the Federal Government, so no one should be surprised about the sustained opposition to the passage of the FOI Bill.
Indeed, the new Oath of Secrecy will frustrate the National Assembly in the discharge of its powers to investigate the activities of government under its supervisory functions under Section 88 of the Constitution.
In the context of the law and the courts the new policy is reminiscent of the old common law under which the sovereign (King/Queen) was excused from giving evidence under the doctrine of crown (State) privilege as established in Duncan V Cammel Larrd (1942) Ac 624 by stating that such evidence was prejudicial to state security. The doctrine was later overruled in Conway V Rimmer (1968) ALLER 874.
In Nigeria despite the nation's common law heritage, our judges had always been uncomfortable with the idea of a blanket cover of State privilege to excuse a public officer from divulging evidence necessary to the just determination of a case.
In Queen V Administrator of Western Nigeria Exparts Bamgbala (1962) WRNLR 344, where Charles J. decided that in a case between two government agencies the claim of State privilege is not conclusive but it is to be decided by the court.
In Apampa V Balogun unreported decision. Aguda J. (as he then was); where the Commissioner of Local Government sought the exclusion of some documents on the ground that it would prejudice government interest, rejected the claim saying “ a litigant cannot be said to have had a hearing if the part of the evidence he requires is shot out and he is prevented from leading it.”
In Adeyemi V Western Nigerian Housing Corporation (1968) NMLR 66.
Olatawura J rejected the argument that the production of public documents showing how plots of land were allocated in the Ikeja G.R.A would prejudice public interest. His Lordship held that to such an argument meant government had something to hide.
The counts power should be excluded or not based on public interest or security was contained in Section 33 (II) of the 1979 Constitution and now Section 36 (4) (b) which provides that a Minister of the Government of the Federation or a Commissioner of a State satisfies a court that it would rest be in the public interest for any matter to be publicly disclosed, the court would exclude such evidence from the proceedings. This pro-active Constitutional Provision allows the court to check any Executive shenanigans aimed at covering up vital information under the vague “public interest and security” claim.
Indeed, the clause sought to be inserted in the FOI Bill by the Senate to exclude information on grounds of national security. Will even if inserted not be able to stand up to Constitutional scrutiny as the courts have the final say under Section 36(4) (6) of the Constitution as to what is in the interest of national security.
Oyegbemi (Editor Daily Sketch) V A.G Federation (1982) 3 NCLR 895. The bottom line however is that Oath of Secrecy is illegal and unconstitutional and cannot be deferred either on the basis of the official Secrets Act, a Colonial inheritance which is subject to Section 39 of the Constitution or the nebulous claims of national interest and security.

Post Script: In the light of the raging debate about the FOI Bill, this column will in the nearest future turn to search list on the full debate on the FOI Bill.