The APC-nPDP “Merger”: 5 Things

Although it’s a bit of a misnomer, as the “New PDP” neither ever acquired a distinct corporate personality nor was recognised as an actual political party, but a “merger” with the All Progressives Congress (APC) was announced today. As the news spread on Twitter, a hitherto latent pragmatism also spread with it.  Suspicions about the leanings and probity credentials of the APC leaders gave way to acceptance that Nigeria isn’t yet ripe enough to be led by a party of saints. There was palpable excitement at the notion that a party that didn’t exist a year ago now has 18 governors (and numerous federal legislators) in its fold. What are the implications of this merger, though? Here are a few naïve thoughts from my de-tribalised, de-politicised, de-everythinged mind

1. An Epic Clash Awaits in 2014/15

Forget for a second, if you will, about the potential presidential candidates. Lick your chomps instead at the prospect of the mother of all muscle-flexing between Federal and State might. Incumbents typically do not lose elections in Africa. In Nigeria, the ruling PDP’s candidate has won every presidential election since our then (and still?) nascent democracy was born in 1999. The PDP has wielded control over the fabled “machinery” of elections since then. However, it was overwhelmingly the largest party in the past and its majority has now been halved. Federal Machinery is no more than an agglutination of Municipal Machineries. With Municipal (i.e. State) Machinery no longer aligned with Federal purpose the outcome may remain unknown for now, but it is sure that the jostling will be the busiest, rowdiest, most legendary election campaign (and spending, let’s be honest) that us 45’s and under have ever seen.

2. Shine Ya Eye

My twitter bio has been updated, to indicate my availability to provide electioneering services that cater to the vanities of elite Nigeria. I am not a ballot-stuffer and I have never brandished a weapon against a fellow human in all my life. To be honest, I want nothing to do with that side of our peculiar electoral process. However, I can do and coordinate the fancy stuff that we, the electoral minority, like. After all, a credible campaign consists of serving the illiterate masses empty platitudes and attempting to beguile the elite with concrete policy. If the epic spending predicted in point 1 above proves true, then there is going to be a big “mahkate” for consultants. Get your consultancy on.

3. Jagabanism is Next to Progressivenessism

Slate the Jagaban Borgu all you like but dismiss him at your own peril. This dismissiveness I speak of is not just in the context of the opposition parties (as the political calculations suggest a South-Westerner is unlikely to be a popular presidential candidate for another 20 years or so) but even with the APC aficionados. Sure, he is building a family dynasty, with the good lady senator senating and the Iyaloja General doing whatever it is Iyalojas do, but perhaps the Tinubus will be the Kennedys or the Bushes of Yorubaland – with due apologies to FFK. With the opinion most people express about him online, I think, given his astute succession planning in Lagos State, it is either he gets an unduly bad rap or Governor Fashola simply is not the saint we imagine him to be. Lagos has progressed unquestionably under their watch however, so it is clear that the man knows a thing or two about developmental spending.

4. Dry Bones Will Live Again

It was said recently, citing sources from within the Economic and Financial Crimes Commission, that the reason for its poor record of enforcement recently was  a lack of funds. No money to chase stealers of money; the sad irony.  We can rest assured, however, that this hitherto missing money or a good Executive substitute for it will be delivered to the EFCC and they will begin to pursue their statutory mandate with renewed vigour and unprecedented fervour. That the scope of their sights is set on members of the burgeoning APC will be a minor footnote in the quest to kick corruption out of government. Never mind the fact that the N255m armoured car scandal refuses to go away, even with the feeble Wag-The-Dog tactics of an attack on an empty ministerial car by unknown gunmen. But I digress.

5. Plus Ca Change…

Asari Dokubo and co will no doubt, in the wake of the moves to unseat their “Jesus Christ on earth”, remind us that it is Niger Delta oil that is running through all our veins and that removing the incumbent president would be akin to ripping each of our hearts out of our bodies. It will be of no consequence, should this president be removed by a popular vote. It is “their turn”. Then, as elections draw closer, and the president begins to lie down before men of God for prayers, religion will also join tribalism as an honoured guest at the electoral feast. General Buhari, did not lie prostrate before the archbishop of Canterbury during his recent visit, so GEJ is well ahead in the picture polls. Pictures from the Jerusalem walkabout will resurface and Buhari will have to defend why he contracted the Mossad to abduct Umaru Dikko. Allegedly. Then the president will reduce the barriers for accessing the Nollywood World Bank Fund. So those ones will come out and act and sing for him again. Then North will be awash with “Sai Buhari” posters. Then the polity will be unbelievably heated up, in spite of the tepid warnings from the presidency…

Can Fashola Deport Non-Lagosian Nigerians?

“Gentrification” – the transformation of a run-down neighbourhood into a more prosperous one – is a word that one comes across much more frequently these days, in discussions about the government of Lagos State. While the state government, under the leadership of Governor Fashola, regularly receives plaudits for its approach to infrastructural development and the restoration of law and order, it seems that the side-effect is that Lagos is no country for broke(n) men.

In addition to banning commercial motorcycles (“okada”), rickshaws (“Keke Marwa”) and destitute persons from many parts of Lagos, the government has gone further on least 2 occasions to barrack some of these people into buses and forcibly transport them to other parts of the country. The most recent deportation/repatriation took place on the 24th of July 2013, with the “dumping” of 72 persons forcibly transported from Lagos at the Iweka Bridge, Onitsha. Naturally, the reactions have been of deep concern and outrage.

Governor Fashola’s Special Adviser on Youth & Social Development, Dr. Enitan Dolapo Badru, has gone on record in defence of the administration to claim, amongst other things, that the operation was not a repatriation, but the facilitation of a reunion between the destitute persons and their families. Apart from the confirmation that

“…at least 1,708 beggars and destitute have been expelled from Lagos to their various States and countries since January 2013, in government’s bid to rid the streets of beggars and the mentally challenged … the international standard requires the State to reunite them with their families…The end result is to reunite them back with their families. We are not repatriating them out of Lagos, we are reuniting them with their families because once we rescue them, we cannot as a government, hold a child under the age of 18 in custody without parental or guardian’s consent. We found out that a lot of children on the streets of Lagos come from outside the state thinking that Lagos is an Eldorado. It is unfortunate that many of them are underage and very vulnerable because they can be introduced to so many vices.”

“When we rescue them, we try as much as possible to carry out social investigation to know where they actually come from and why they absconded in the first place. And this takes time, because most of them don’t usually tell the truth since they don’t want to go back home. Once we have them in our custody, we must take a Court Order to keep them since the law provides for that and we cannot keep them indefinitely, so we still need to send them back to their parents. And our practice is to get in touch with the social welfare services of their respective states, which would in turn get in touch with the families.

“In the last one year, a total number of 3,114 beggars, destitute and mentally-challenged have been rescued in day and night operations and 2,695 were taken to the Rehabilitation and Training Centre, Owutu, Ikorodu, where the state government has made provisions for facilities to help in turning their lives around, while the mentally-unstable are given medical attention.”

It is necessary to quote him as extensively as done here because of the implications and ramifications of what the government of Lagos State is doing here.

The SA appears to be implying that only those under the age of 18 are carted away on these family reunion projects, the reason being that Lagos State cannot indefinitely hold minors in its custody without parental consent. His statement implies further that the mentally infirm are not repatriated but looked after in state-run facilities. If this is the case, the constitution would appear to justify the government of Lagos State.

Section 35(1) of the 1999 constitution provides that “[E]very person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: …(d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare; (e) in the case of a person suffering from infections or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community…”

What this means is that while everyone is entitled to personal liberty, government is allowed to deprive under-18s and the mentally challenged of this liberty, for the stated purposes.

However, it is doubtful that only under-18s are deported, given the statements that have been made by some of the Iweka 72 and the fact that none of the political leaders of that geopolitical zone has commented on the deportees being children. And, in any event, that section of the constitution does not justify forcible removal from Lagos.

There is also the question of the basis on which the government determines that these minors have parents and whether it repatriates such people regardless of whether or not they are orphans. What measures does it take to ensure that minors are actually reunited with their parents rather than merely exchanging Carter Bridge for Upper Iweka Bridge? If indeed, the government of Lagos State merely dumped 72 minors at Iweka Bridge, has it not breached its obligation of security and social welfare to these minors, as guaranteed by Section 14(2)(b) of the constitution?

Furthermore, if the government of Lagos State is sifting through destitute persons within its territory, on the basis of states of origin, to determine who would be entitled to social welfare, there is a clear question of whether or not such a process is discriminatory. I would in fact argue that it is discriminatory, given that it is highly unlikely that these repatriated/deported persons were actually reunited with any family as the government would have us believe.

Section 42(1) of the constitution says “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person – (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex religions or political opinions are not made subject;…”

Section 41(1) of the constitution states that “[E]very citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen shall be expelled from Nigeria or refused entry thereto or exit therefrom.

Taking these two sections of the constitution together, a citizen of Nigeria is entitled to move freely within Nigeria and live in any location of his choice and has the right not to be discriminated against on the basis of his place of origin.

Indeed, there would be implications for the “indivisibility” of Nigeria (Section 2(1) of the constitution) if every state began deciding who would be entitled to its services on the basis of their places of origin.

I would suggest that the government of Lagos State reevaluate its strategy for the gentrification of the mega city. The mega city, no matter how mega or giga or even tetra it may become, will only be a city within a state, within a federation. Unless, of course, the deportations are a declaration of secession…and we have been down that road before, have we not?

A Judicious Judiciary

Professor Charles Debatista, in his Carriage of Goods and International Trade classes, would always remind us that the wheel on which all trade, domestic and international, turns is the principle of pacta sunt servanda – that promises must be kept. If I do not have the confidence that you will uphold your end of a bargain, or that there is a reasonably quick recourse for me in the event of your default, there is no logical reason why I should enter into a commercial relationship with you.

One of the very first questions intending international investors or their lawyers ask in pre-incorporation due diligence is “Do Nigerian courts uphold agreements freely entered into by Nigerians with non-Nigerian parties?” Typically, the question that would follow is “If yes, how long does it take, on the average, for lawsuits for the enforcement of contracts to be concluded?” It was very easy then, to casually respond that the average lifespan of a suit at the court of first instance is 3-5 years, with appeals to the Court of Appeal and the Supreme Court lasting another 2-3 years each, on the average. The math is hard to ignore, however. You could very easily be in court for 10 years trying to get someone to keep his end of a bargain. And even if you had 10 years to fritter away, there are no guarantees that you would be able to afford to keep paying your lawyer for that long.

The negative consequences of a judiciary with this speed of enforcing contracts are quite a few. I have previously retold here how an employer dared his expatriate employees to go to court to claim the 6 months’ arrears of salary he was owing them. Even though they had fixed contracts for 2 years, on the basis of which these workers relocated to Nigeria, this employer called their bluff. Unable to afford the cost or time of a trial, one by one they slunk back to their respective countries. However, this was even on a relatively small scale. An investor bringing in, say, $300million dollars wants to know how quickly he can cut or recoup his losses in the event that his Nigerian partners default on their obligations.

In addition to anecdotal evidence of the consequences of a slightly sluggish judiciary, empirical studies, as reported here (Doing Business – Enforcing Contracts 2013) and here, show that a judiciary that resolves commercial disputes in a timely and cost efficient manner is crucial to a healthy economy. The studies suggest that “countries with slower judicial systems, on the average, have less bank financing for new investment” and that “financial intermediates are likely to reduce the amount of lending if the ability to collect on debts is no longer given or obtaining control over property as collateral to secure loans is denied.” The latter part of the preceding sentence is evident here in Nigeria, where the consensus amongst small business owners is that it is extremely difficult to obtain affordable finance or credit from banks for their businesses.

Table culled from the Doing Business Report

Speeding up the judicial process will also be critical to resolving at least 2 current front-burner issues – corruption in government and the lack of respect for the Rule of Law. The chairman of the Economic and Financial Crimes Commission was recently reported to have expressed frustration with the ability of high profile (political/government) suspects to delay their trials. His lack of faith in the country’s judiciary is shared by the millions who would rather exact summary justice on suspected robbers or rapists than hand them over to the authorities to be investigated and charged.

Nigeria is ranked 87th out of 185 countries in ease of enforcing contracts and 8th most improved since 2005

Speedier prosecutions would lead to many positives. Wrongly accused persons would no longer waste half their lives away in police and prison cells awaiting trial. Public officials would be deterred from stealing public funds because there would be less time to manipulate (or be perceived to be manipulating the system).  The confidence of citizens in the judiciary would also be restored.

So how do we accelerate the dispensation of justice? Let us take a look at Singapore, ranked the easiest country in the world in which to enforce contracts (download data here and sort in descending order) and, coincidentally, also the best country for doing business. In this speech by one of its Justices of the Supreme Court in 2009, the history of the country’s judicial system is recounted, along with the steps taken to reform it and expedite the resolution of civil cases. To summarise, Singapore did the following:

  • Appointed more judges
  • Changed rules of court to empower courts to be more proactive in the management of cases
  • Denied adjournments
  • Gave hearing dates to moribund cases
  • Expanded jurisdiction of subordinate courts (e.g., in the Nigerian context, magistrate and customary courts) in terms of subject matter and size of monetary claims
  • Set and maintained target timelines and benchmarks, for example –
    • Seek to dispose of all cases within 18 months of filing
    • Seek to dispose of more cases than are filed every year, disposing of a number equivalent to 104% of cases filed in 2007)

In Nigeria, Lagos State is easily at the forefront of judicial reform, especially with the appointment of judges and the expansion of the jurisdiction of subordinate courts. Lagos State judges are also mandated by current civil procedure rules to encourage parties to a dispute to settle prior to a full hearing. However, courts in Lagos are still very congested, indicating that there still might not be enough judges. We are provided with an idea of what would be an acceptable ratio of judges to the population in this article on litigation and delays in the Indian judiciary. The article reports that as far back as 1987, the country’s Law Commission had recommended a ratio of 107 judges per million citizens. It is instructive that while India was planning (in 1987) to achieve this target by 2000, the USA had already achieved it in 1981. Another piece, also from India, compares India’s judges per 100,000 to the ratio in “well-administered” countries. The information is reproduced in the table below.

Country No. of Judges/100,000
USA 11
Sweden 13
China 17
Belgium 23
Germany 25
Slovenia 39
India 1.2

What, then, is the current ratio of judges to Nigerian citizens? I spent over an hour trawling through various judiciary websites and even the site of the National Statistics Bureau, with no luck finding out the number of judges (including customary court judges and magistrates) that we currently have in Nigeria. But, making assumptions, on the premises explained below, I reckon we have about 4,000 -5,000 “judges” at the very maximum.

The Supreme Court currently has fewer than 15 justices out of a constitutional maximum of 21 but let us assume a full court. There are currently roughly 70 justices of the court of the court of appeal but let us assume a bloated estimate of 100 judges for both courts. There are also roughly 70 judges of the Federal High Court. Each state has a State High Court. If we use Lagos as a benchmark, with roughly 50 judges per State (an unreasonably high estimate given that there will be several States nowhere near as busy as Lagos, but you’ll soon see where I’m going with this), that is 1850 state High Court judges for all the states and Abuja. This gives a total figure of 2,020 judges. If we then doubled the figure to accommodate judges of the National Industrial Court, judges of the customary court and the customary court of appeal, as well as magistrates, we would have an estimate of roughly 4,000. Thus, even if we assumed a figure of 5,000 judges for a population of 160 million people, the ratio is 31 judges per million individuals (or 3.1 per 100,000), approximately a third of the Indian and American ‘optimum’. The argument for more judges however, needs to be counter-balanced with the need to ensure that the integrity (not in the context of ‘honesty’ – see speech here where the former Chief Judge of Nigeria remarks that expanding the size of the Court of Appeal has led to conflicting judgements) of the system isn’t compromised or lost.

I realise that the references from which my conclusions concerning the judiciary have been drawn were primarily focused on civil proceedings but I see no reason why the same measures cannot be applied to the congestion in the criminal justice system as well. I realise too, however, that the criminal justice system also includes the police. On police reforms, I will again refer readers to the most comprehensive discussion of which I’m aware on the subject, here.

The government has taken many measures to convince foreign investors that Nigeria is a good destination for their money. The Minister of Trade has introduced accelerated the process for obtaining business visas, while the Minister of Aviation also recently announced an investment road-show. The government can give as many assurances as it wishes but it is clear that reducing the speed at which the wheels of the judiciary roll will be one of the most significant steps that will be taken.