GUEST POST: Kayode Adegbola (@KayodeA) – Do Commissioners Really Need to Resign Before Contesting Gubers?

With a view to resolving the issue of whether there is any legal requirement for Commissioners to resign their position before they can contest for the offices of Governor of a Nigerian State, I conducted a review of The Constitution of the Federal Republic of Nigeria, 1999 (Constitution”); The Electoral Act 2010, as amended (“Electoral Act”), as well as additional documents which include but are not limited to the constitutions of the major Nigerian Political Parties – People’s Democratic Party (“PDP”) and All Progressives Congress (“APC”).

 

The Constitution provides the following as requirements for a person to be qualified for election to the office of Governor of a State[1]:

 

  1. Citizenship of Nigeria by birth;
  2. Attainment of the age of thirty-five years;
  3. Membership of a political party and sponsorship by that political party; and
  4. Education up to at least School Certificate level or its equivalent.

 

In addition, the Constitution confers the following freedom on all persons:

 

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.[2]

 

This freedom as stated above may be restricted by “any law that is reasonably justifiable in a democratic society a) in the interest of defence, public safety, public order, public morality or public health; or b) for the purpose of protecting the rights and freedoms of other persons[3]”.

 

However, and quite importantly, according to the Constitution, no person shall be qualified for election to the office of Governor of a State if “being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election”[4]. In addition, the Interpretation, Citation and Commencement Section of the Constitution defines “public service of a State” as follows[5]:

 

“public service of a State’ means the service of the State in any capacity in respect of the Government of the State (emphasis mine) and includes service as:

(a) Clerk or other staff of the House of Assembly;

(b) member of staff of the High Court, the Sharia court of Appeal, the Customary Court of Appeal; or other courts established for a State by this Constitution or by a Law of a House of Assembly;

(c) member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;

(d) staff of any local government council;

(e) staff of any statutory corporation established by a Law of a House of Assembly;

(f) staff of any educational institution established or financed principally by a government of a State; and

(g) staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest;

It is not clear whether in drafting the Constitution, a Commissioner was envisaged to fall within the purview of being a member of “public service of a State”, however the sentence “the service of the State in any capacity in respect of the Government of the State” could be read to mean so.

 

The Electoral Act makes no stipulations with regard to the subject of this opinion, and neither do the constitutions of the PDP and the APC. The APC Constitution only requires a candidate for Governorship to satisfy the requirements for elections under the Constitution[6], however I am aware that it is conventional for political parties to release guidelines that may require candidates to resign any public office ahead of primary elections.

 

In my considered view, there is no law in Nigeria which expressly states that a Commissioner must resign from his office in order to contest for the office of Governor of a State; however, if at all, in consideration of the provision of Section 318 (1) as mentioned above, such resignation will not be required until thirty (30) days before the Governorship Election.

 

So, for any Commissioner who is currently in service in any State in Nigeria and seeking to run for Governorship of the State (as is quite common), it remains safe to not resign until at least 30 days before the next Governorship Election scheduled for 28th February 2015. However, I am aware that State Governors often either sack or require Commissioners in their Cabinets to resign their positions in order to prevent the distraction of campaigning as against their service to the State.

 

NOTE: This blog post does not constitute legal advice, but rather is an opinion of the writer on the state of the law regarding the topic. For specific advice, please contact your lawyer.

Follow Kayode Adegbola on Twitter: @kayodea

 

ENDNOTES

[1] Section 177

[2] Section 40

[3] Section 45

[4] Section 182(1)(g)

[5] Section 318(1)

[6] Article 20(2)(ii)(b)

Copyright Protection: The Exceptions

One of the benefits of recent events bordering on blogging and plagiarism is that everyone got a crash course on intellectual property and copyright. Most know now that you need the author’s permission to use literary, musical and artistic works, as well as films, sound recordings and broadcasts. This is a good thing. Intellectual property law however is more shades of grey than columns of black and white. The slight concern (for me) is that this is mostly being bandied as an absolute rule and that any unauthorised use whatsoever is immediately plagiarism or copyright infringement. This is not the case – absolute monopolies of use are not created. The reason for this is rooted in the [jurisprudential] basis for copyright protection.

 

Copyright, does not exist solely for the benefit of the content creator and most countries generally declare a justification for their system of copyright protection. For example, in the world’s first ever copyright legislation, the English Statute of Anne, it was stated that the purpose was to “encourage learning”. Similarly, the American Constitution states that the purpose of copyright is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

 

Copyright protection exists more therefore in the interests of the public good than the interests of the private individual. The competing need to balance economic benefits to rights holders and the public interest of users of the protected works is the reason that there are circumstances in which the works may be used without authorization.

 

One of the easier exceptions to exclusivity is that copyright protection does not last forever. See here for a breakdown of copyright duration.

 

 

Secondly, some laws provided a list of activities that will not be caught by usual copyright restrictions. One if Fair Dealing, which is discussed below, but several others listed in the Nigerian Act include the following:

  • reproducing the work by way of parody, pastiche or caricature (e.g. BuniTV’s Drunk in Love);
  • reproducing and distributing copies of an artistic work permanently situated in a place where it can be viewed by the public;
  • inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is for educational use and includes an acknowledgement of the title and authorship of the work;
  • incidentally including an artistic work in a film or broadcast

 

 

The final exception or limitation for this piece is Fair Use. Under the Nigerian Copyright Act, the concept is referred to as “Fair Dealing” and is described as follows:

 

“The right conferred in Section 6… does not include the right to control (a) the doing of any of the acts mentioned in the said Section 6 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast.”

 

In other words, as long as I refer to the title of your work and acknowledge your authorship, I can use snippets of it in a subsequent work doing any of the highlighted activities in the preceding paragraph.

 

In America, there’s a slightly more robust test for determining Fair Use. See the excerpt below from the Copyright Clearance Centre’s website:

 

“Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered “fair use.”

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
  2. The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.
  3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of — or so important to — the original overall work as to be beyond the scope of fair use.
  4. The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

 

What does this mean for blogging? It means you need permission to use photos still under copyright. It means you can use excerpts (a few paragraphs – depending on the total length of the essay) from other people’s work in your own without asking their permission first, as long as you acknowledge the original work by title and author. As for tweets, because it is a requirement of eligibility for copyright that “sufficient effort has been expended on making the work to give it an original character”, very few would be eligible for protection and the great majority can be used without the handle owner’s permission. It’s always nicer to ask, though.

 

National Honours (Laid Bare)

Today’s national newspapers, especially ThisDay, were quite bulky. When my copy was brought to me, I thought, judging from its thickness, that it was probably another political titan’s birthday or their daughter’s wedding celebration, and the minions were falling over themselves giving praise. I was wrong however. The several extra pages (which were indeed congratulatory messages) were to convey felicitations to various recipients of this year’s Presidential National Honours; men and women who are being honoured for “distinguished public service.”

I know that’s what they’re being honoured for, because that’s what the National Honours Act (see here) prescribes for inscription on the obverse side of the honours medal.

It’s probably going to be useless information, but here’s some more information the National Honours Act provides:

  • There are 2 Orders of Dignity – Order of the Federal Republic and Order of the Niger.
  • Each order comprises four ranks, namely – Grand Commander, Commander, Officer and Member

It seems the Order of the Federal Republic is the more distinguished one, because the Act places a lower limit on the maximum number of persons that can be appointed to its ranks in a calendar year. The maximum number of people that can be conferred with the different categories of honours each year are as follows:

  • GCFR – 2; GCON -10
  • CFR -20; CON -30
  • OFR – 50; OON – 100
  • MFR and MON have a maximum of 100 recipients each.

To be eligible for an award, the recipient must be a citizen of Nigeria. However, non-citizens can be honorary holders (not sure I get the distinction, or why it’s necessary then, but that’s what it says). The Act appears to be silent on whether or not honours can be conferred posthumously, but, to borrow the words of Brutus, Dr. Doyin Okupe is an honourable man. So it is possible that an amendment has since been passed and the copy of the Act that I consulted is dated.

A person is appointed to a rank when (s)he receives the insignia for the rank and an instrument (i.e. a document, letter, etc) signed by the President, sealed with the public seal of the Federation, conferring the rank. The President is however allowed to direct conferment on a person in any manner he feels is expedient.

When a person is promoted, (s)he is no longer entitled to hold [or use the insignia of] the lower rank. The government may request that insignia of the previous rank be returned upon promotion.

The President also has the power to deprive of rank anyone who has behaved in a manner not consistent with the dignity of the rank. I was unable to find any record of this power having ever been used.

And that’s it. Congratulations to this year’s recipients, deserving or otherwise.

Music and Lyrics

music

Music has always been a time-stamp for me. Most songs that bubble to the surface of my consciousness remind me of very specific places and times. Panam Percy Paul’s Bring Down Your Glory reminds me of the most devout time of my life, in secondary school. When I hear Diana Ross’s Touch Me In the Morning, or Do You Know Where You’re Going To, I see my mum a much younger lady in my mind’s eye. I hear Dynasty’s Holiday or Midnight Star’s No Parking on The Dance Floor, and I see my dad, who’s pushing 70 now, busting moves. Maroon 5’s Songs About Jane was the soundtrack to my NYSC. Missing You, the Puff Daddy tribute to the Notorious BIG puts me firmly in Kuti Hall, UI, when you would hear at least five different rooms blasting different portions of the song at any one time. Michael Buble’s Home reminds me of my bittersweet time as a perpetually broke masters’ degree student in Southampton. And so on.

Perhaps the way I consume music has also contributed to the time-stamping factor. I want to hear the layering of the instruments and vocals and hear how the producer changed the beat at the hook or the bridge. Most of all, however, I want to hear each and every single lyric and try to figure out what was going through the composer’s mind when he wrote the song. Since we got Google, rather than merely looking for the words, I also search for the background to the songs, and you’d be surprised how much history you might come across in that endeavour.

For instance, if you research the song Layla, made popular by Eric Clapton, you will find that it was inspired by his love for Pattie Boyd, who at the time he met her was married to George Harrison of the Beatles. Boyd would later divorce Harrison and subsequently marry Clapton, although the latter union did not last either. Boyd is also said to have inspired another of Clapton’s critically acclaimed hits, Wonderful Tonight. More surprising though, was the fact that she did not really return Clapton’s love, reportedly leading him into the spiral of acute drug and alcohol addiction. With some other songs, like Don’t Look Back In Anger by Oasis, you find that the composer was so spaced out of his mind during writing, he had no idea what the song was about.

And, contrary to what the preface might suggest, older local music also held its allure. Kris Okotie (now Reverend), Felix Liberty, Harry Mosco, Majek Fashek, Sunny Okosuns, all wrote enduring songs. Music was an art, that required dedication, nurture, time and talent.

Advances in technology have democratised everything however. And, armed with nothing more than the same laptop on which I’m publishing this piece to an international audience, anyone can make and publish music much more easily today. It is not certain whether this dilution in production requirementsalso led to the dilution in song writing but Nigerian music is in a song-writing crisis. Of course, it wasn’t always so.

After Nelson Mandela was freed and conscious music died in Nigeria, we all just trudged along for a while. Blackky, Alex O and Alex Zitto flew the flag for a while, Emphasis’s Which One You Dey? and Junior & Pretty’s Monica probably set the tone for indigenous rap around that time. Eedris AbdulKareem of The Remedies then took “rap” to the twilight zone but redemption, for me, came in the persons of Styl Plus. Personally, I don’t believe the story of today’s music in Nigeria can be told without mentioning the absolute game-changers that Styl Plus were. We once again had real lyrics, unprecedented vocal harmony and cutting edge music production. Their Olufunmi remix featuring Da Capo was without doubt the reset button for Nigerian hip-hop and rap.

I’d like to say the rest is history, with all the international superstars we now have but the lyrics lover in me says no. If we had charts in Nigeria today, I don’t think very many songs would be top 10 for more than 2 weeks. The very generic sound of most songs, poor production, similarity in lyrics and gimmickry all make for a very short-term hits market. And, at the end of the day, it seems most artists want to make a hit rather than good music. Now, I’m not naïve enough to think that music should not pay its creators but hit music here is frequently not very good music, and I think this is why most songs have a 2-week top 10 shelf-life or perhaps even less.

The music mostly doesn’t even sound great unless one is intoxicated either by the ambience of a crowd or the infusion of alcohol and I would argue that it isn’t distinctive enough to stamp anyone’s time or memories. Too many artistes are either asking the girl to “whine am down low” or “follow me go” or just stringing words together in unnatural sequences.

I have argued before that this sort of music isn’t the type that will pay artistes into their old age. Music doesn’t always have to make sense but it should sound original and artistes cannot be releasing albums where 7 of 12 tracks sound alike, or 4 tracks out of 11 sound lie you’re recycling your old hits.

Or perhaps the reality is that age brings with it a growing disconnect from the music of the day. I remember my dad not getting the point of expletive-laden rap, with its monotonous basslines, but you try throwing on a few Biggie and Tupac joints at a wedding reception or stag do today and see what happens.

Let’s encourage artists to pay more attention and devote more effort to writing, and let’s support those who make the effort by buying their music. If the legend that is 2face Idibia could finally give in and include a Go-Down-Low line in Go, the opening track to his latest album, I would suggest it’s because we did not reward him enough for Only Me, Rainbow and all the other lyric-laden smash hits on his previous one. There’s no greater incentive than putting our money where our mouths are.

How Much Does a Bad Education Cost?

How Much?

How Much?

When I was in university, not so very long ago, LASU was in a tussle with UNIBEN and Ambrose Alli Univeristy, Ekpoma to be declared the paramount hotbed of secret cultism in Nigerian universities. It was always only a butchering or slaying and a riot away from closure. The school has been closed again in recent times, but the protests that led to the closure happened because the Lagos State government had attempted to increase annual fees from about N25,000 (about $150) to about N350,000 (about $2100). On the 7th of August 2014, the Governor of Lagos State, announced that there would no longer be an increase of any sort (previous suggestions of 60%, then 30% increases had also been rebuffed) and that the N25,000 fees would stand.

The Governor’s reversal was seen as a victory for people power, with various references again being made to the supposed lessons from the Ekiti elections and the consequences of elitist governance. The thrust of the arguments in support of modestly priced tertiary education is that the less privileged in society should not be priced out of education. Those in favour of increased fees argue that quality education is pricey and that a $600 dollar education (i.e. over a 4-year course) is not going to build a country of industrialists and reformers. And there would be some merit on both sides but I would side more with those who favour a realistic cost being attached to education. I would also agree that government should subsidise education but not up to tertiary.

Many people cite the Norwegian example in the argument for free education into post-graduate studies, even. After all, we are both endowed with vast mineral wealth. This is a false equivalence however, as Norway has only 5 million people against its proven crude deposits of 5,366,000,000 BBL, compared to Nigeria’s 170 million people against its proven deposits of 37,200,000,000 BBL (data here). Per capita, Norway is 5 times richer in oil than we are. And they don’t even spend the wealth the way we do, but that’s a story for another time. Let’s stick with education.

Everyday, when talking about Nigerian university graduates, recruiters churn out the words “half-baked”, “unemployable”, “incoherent”, etc, and there’s a reason for this. Many Nigerian graduates (they’re in the minority, let’s be honest) do not fall into these categories but I’m convinced it’s more to do with the schools they went to before university. People with decent primary and secondary education are more likely to be the outliers that will thrive in spite of the university they go to. It may sound elitist but (if you were not one yourself), you probably remember that classmate at uni (or three, or five or twenty), who struggled not only with grammar, but also with grasping every material concept your lecturers tried to teach. People who would throw a tantrum if they could not record the lecturer verbatim. People who had not learnt how to learn.

What evidence do I have in support of this theory? Well, if you speak to any of these “good” Nigerian graduates who, after being educated up to their first degrees in Nigeria, go abroad for graduate studies, the overwhelming majority of them will tell you that it was hard to adjust initially. You think you know how to research an issue properly, until you find out that what qualifies as research in the best of our universities here is nothing but rank plagiarism abroad. Very few of us that are trained in Nigeria understand that it is a very broad and far-reaching concept.

Plagiarism aside, how many university lecturers here tolerate dissenting views, even where those views are backed by verifiable facts/data? Chances are, if you do not regurgitate what your lecturer dictated to you or printed in the handout he forced you to buy, you won’t excel in his course. Rubbish, you say? Law school students doing the Bar Part I course (for foreign-trained lawyers) always complain about the learning methods at the law school. “Learning”, even in law school, is sitting through hours of note dictation. As we all know and have seen, note-dictation means you only need to find a diligent classmate with good handwriting, to photocopy his notes when it’s time to cram, 3 weeks before exams.

I went to a secondary school where we had a woodwork shop, with saws and drills and chisels and mallets and did all the experiments in the chemistry, biology and physics textbooks. ALL. It was a complete shock to my system during GCE (which I took after SSCE), that there were “Theory of Practical” exams for the sciences and that this was what the great majority of Nigerian secondary school students prepared for.

Jumping from N25,000 to N350,000 was something of a quantum leap, to be honest, but the penultimate proposal of 30% hikes in the fees was more than reasonable, in my opinion. If you are a parent and have young children that you are educating in private nursery and primary school, you are no doubt paying many multiples of N25,000 per term. I would argue that the effects on the child(ren) are evident – their vocabulary is expanding much faster than yours or your parents’ did, they’re dealing with much more advanced concepts than you were at their age and, in fact, the system of teaching is vastly changed from when you were a child yourself.

We need to move away from this “XYZ Governor enjoyed free education but wants to deprive today’s youth” argument, for many reasons. The first is that it is a lie. If you go back to our primary and secondary school literature books, the narratives showed villages putting money together to send children to school. Many people were the beneficiaries of some sort of grant or scholarship and had to drop out if things got tough back home.

The second is that the annual N90 my mother paid to attend UI in the 70s was worth much more than the same N90 I was charged in the 90s. That sort of system is not sustainable. After all, that was when meals (via meal tickets/vouchers) cost 20kobo or something. The cheapest meal in my first year was around N50.

It is this free system that ensures that the best of our brains are lured away by more competitive salaries and opportunities to contribute to the body of knowledge. It is this free system that ensures that there has been no major scientific or engineering breakthrough (of the kind that can withstand the robust and rigorous scrutiny of international peers) in any of our universities. It is this free system that makes the Ghanaian educational system more attractive to Nigerian parents who can’t afford the US-Europe route. This same free everything is why we don’t have technicians and artisans with proper skills. We import tailors, bricklayers and masons from other countries in West Africa (where they pay for this skills training) if we want proper cuts or straight walls.

A 1300% rise in fees will always be hard to defend and was probably not wise, especially, as many have pointed out, in an election year. We have to ask ourselves however, why there are so many graduates who cannot find work years after NYSC. Why are there so many graduates who are forced to switch careers (often downwards) only a few years after graduation? Why do recruiters always lament a skills gap? Most importantly, with Vision 20 20:20 in mind, what are the world’s top economies doing differently from us? Have a look at the chart below, in connection with the World’s Top 100 universities, for 2013:

World's Top 100 Universities by Country Located

World’s Top 100 Universities by Country Located

Is it a coincidence that these are firmly amongst the world’s most developed countries? How many of them offer free or heavily subsidised tertiary education? Do we reasonably think that our way -the Nigerian way – is better?

We’ve reverted to the status quo ante on the fees and this probably means not much is going to change in the system. For what it’s worth, I believe that the entire benefit of free or subsidized education should be directed at basic education, to bring up our base literacy levels and learning aptitudes. Thereafter, fees for degrees need to be realistically priced, to upgrade facilities and attract the intellectual and administrative talent needed to transform our tertiary learning centres. If we look around us, the real cost of bad education is all too evident.

Osita Chidoka a Minister? Oh no!!!

I do not know Osita Chidoka personally. So this is not an attack on Osita Chidoka the person. On the contrary, it is an attack on Osita Chidoka the public administrator, who has recently been nominated for confirmation as a Minister by President Goodluck Jonathan. People say he will fill the aviation slot vacated by Princess Stella Oduah and this scares the hell out of me. Why? Well, in his time as FRSC boss, he presided over some dodgy reforms in our road transport sector. I speak of his vehicle registration and driver’s licensing efforts.

 

1. Vehicle Registration – I remember in the late 80s, when my dad changed the registration number of his Renault 9 GTL from OY 727 X to BF 727 BDJ. Dr. Olu Agunloye (him I know personally) had been appointed Corps Marshal and this move was ostensibly to fix the government’s database and computerise all the records. Over the past 2 years or so, Osita Chidoka, has been telling us that the FRSC has been absolute rubbish at keeping records, so many of the Agunloye-time plates were not fully captured on issue. The FRSC lost many records in transit between the various licensing centres and the headquarters in Abuja. The worst part was that Nigerians had to pay to fix this wholly government-sided mess. Chidoka’s people then swapped the positioning of the characters on the license plate (e.g. to BDJ 727 BF) and slapped a messy green watermark in the shape of the Nigerian map behind them. Of course, the process could only be completed on time through touts. Several courts have ruled the process not to be properly backed by law but this being Nigeria, it’s probably safer to be our usual docile selves and just get the new plates to prevent harassment on the highways.

 

2. Driver’s Licenses – Again, Chidoka decided to decree a uniform expiry date on driver’s licenses, regardless of actual expiration and demand that we all get new ones. Cue the frantic rush to procure the interim papers that say you went to a state-approved driving school and passed a test (LOL, ROTFL), and thereafter be given an appointment to report for data capture. This FRSC data capture is the loooooooooooooooongest process in the world. You are assigned a date several months in the future only for that date arrive and the venue is a typical disorderly mess. Why there are so few centres, why the FRSC refuses to harness 2014 technology, why getting your picture and fingerprints recorded takes longer than NASA plans a rocket launch is absolutely beyond me.

 

I reckon Chidoka will have similar “reforms” in mind for the aviation sector. All aircraft will need recertification from a single authorised testing centre on the Bebi strip ( all 100 metres of it). So a tout will take your original papers to Bebi where there’ll be a couple of liaison officers from the government agency all in on the massive racket. They will frequently go on 3-day lunch breaks, you know, just because. I am not saying Chidoka is racketeer. However the implementation of his reforms to date has empowered racketeers.

 

Reform is a great thing. In fact, the good book encourages us to daily renew our minds. Reform is scriptural. Amen! But a reform that preserves the old, stinking order is no renewal. A reform that merely shrouds the status quo in a cloak of pseudo-progressiveness is utterly condemnable.

 

I have read somewhere that Chidoka has a masters degree in some relevant transportation subject from George Mason, so perhaps his attempts to reform are killed by the septic environment of the Nigerian civil service. Perhaps that will be his challenge when he becomes a Minister – to Nigeria-proof his reforms. Otherwise, do not be surprised if in 6 months from now, you will barred from flying locally without the snazzy new Biometric Utility Long Life Safety Harnessing Identity Ticket. You see my acronym?

Elitism As a Scapegoat

Kayode Fayemi lost and Ayodele Fayose won. The overwhelming consensus, even with people that were Fayemi aficionados before the elections, in blog after blog and op-ed after op-ed, is that Fayemi was too elitist and Fayose was a man of the people; that Fayemi lost because his policies were too cerebral (ergo, the Ekiti people are a thick bunch) and that Fayose, with all his travails and alleged character flaws, is the man whose governance and policies favour the people more.

 

Analysts are all agreeing that while roads, bridges, healthcare and raised educational standards are all fantastic ideals, a governor who would be re-elected must “empower the people”. The governor-elect, true to his pre-electoral reputation, has already declared that he will empower the people of Ekiti by awarding them contracts, whatever that means. He understands, it has repeatedly been said since the elections, what is euphemistically referred to as “stomach infrastructure”. Ekiti is full of poor, hungry people and Fayose, with his common touch, is more connected to the people and understands better the importance of stomach infrastructure, the arguments go. Unlike the outgoing governor, who was simply too elitist (like Fashola of Lagos, it is frequently added).

 

Elitism has suddenly become this dirty word, this contraption by which elections will surely be lost. And the sure banker route to electoral victory is ensuring that as an incumbent governor, you maintain the status quo and keep the rent-seekers and hangers on happy, lest they rebel against you and deliver each single local government in the state to the enemy.

 

Is Fayemi’s “elitism” is something to be apologetic for? Obviously, in the zero sum game that is our current political arena, some populism is required in the quest to retain political power and the fact that Fayemi will cede his office to Fayose, come October, shows that elections are still largely a popularity contest. However, the question must be asked, of those who would think, whether or not the status quo is desirable. Do we want people to win elections so they can beat their chests and dance victory dances, or do we want people to win elections because we believe they will govern in the best way possible? In a country where we complain about the First Couple’s frequent foot-in-mouth gaffes, why was it ultimately wrong for this governor to be of the desired mould?

 

The question is moot and yet it is at the same relevant to the on-going examination. Shall we continue to wallow in the incompetencies of today, so that our stomachs may be serviced, or should we look at where we need to be and do the things necessary to help us get there? Do we, as a society, have values about this sort of thing, or is our value system limited to compelling all women to be married before they hit 30? Is “elitism” a bad thing for politicians because it supposedly lost Fayemi the elections?

 

It certainly sounds nice to have governors who buy food by the roadsides and share the monthly federal allocations around, but any buffoon can do that. In fact, there are many buffoons doing this all over Nigeria at the moment. Is this buffoonery preferable to development and does the fact that the people of Ekiti rejected a progressive governor make this buffoonery right? What exactly is the point of governance?

 

We cannot, on the one hand, criticise governors who celebrate mundane, basic amenities like boreholes and motorcycles, yet make a governor renowned for prudence and excellence feel like his conduct and policies as a governor were regrettable.

 

There is no society that has progressed by working with the thinking prevalent amongst its lowest echelon. Such thinking, as is evident with this “stomach infrastructure” argument, is inherently short-termist and therefore inferior and unreliable. Societies progress when the greater good of the greater number is pursued and if this is being “elitist”, then elitism is a good thing and I would be happy to belong to the elite.

 

When we say people (or “the masses”) are poor and hungry and that this poverty is what directs how they vote, can we objectively say that their choices are rational? Or is rationality a subjective thing, depending on the abjectness or otherwise of one’s poverty? Granted, the game is about winning and, no matter how much Arsene Wenger says it, coming anything other than first is not like winning a trophy. But is winning elections the sole aim of governance? How can we clamour for good governance but deride a man for not throwing scarce money away, in the name of stomach infrastructure? How can it be bad for the governor to have focused on real infrastructure?

 

There have been attempts to rationalise what happened in the Ekiti elections. You can read my favourite pieces here and here. It would seem from the analysis that one cannot be a purist in Nigeria and hope to remain in power and this is a very fearful thing. It means that there really is no incentive to lean away from the malaises that we all agree are holding the country back – the corruption, the nepotism, the impunity. You see, a blanket empowerment of the people by awarding them contracts means that you are discarding due process in tenders as a governor. It connotes that “the people” will be awarded these contracts irrespective of their qualification or suitability. It means that you will feed the entitlement mentality of “sharing” and “making the money flow”. It means that you have already compromised on good governance. It means that the change of Nigeria, of your state, does not lie in you.

 

Luckily for us, Fayose can only be governor for four years and no more. Perhaps he will be more concerned with his legacy, as will not be eligible for re-election, given his previous term as governor. Maybe he will mix his populism with some pragmatic elitism and flip the script for 2018.

So, some guy went and trademarked “Nollywood”…

 

News reached us in Nigeria a few days ago that someone (a man named Nicholas Opara) had applied for and received approval from the USPTO to register the word “Nollywood” as a trademark in the United States. At first it didn’t seem to me like something anyone should worry about but the Nollywood people at the NBA’s Section on Business Law Conference were clearly disturbed. There is a sense that anyone using the expression “Nollywood” in the context of our entertainment industry will owe Mr Opara money. This is incorrect, for the reasons given below.

 

You can see the USPTO report on the NOLLYWOOD trademark here. This tells us that the registration was in classes 35 and 38. (You can find our quick refresher on trademarks and classifications here.)

 

What does this mean? Well, trademarks are registered in connection to goods and services. So you can’t just walk up to the trademarks office and ask to register “TEXTHELAW” in abstract. You would have to tell them what goods or services will be branded with the trademark. In the refresher course link above, you will find that there is a standardised international classification of goods and services, available in most countries. In Mr Opara’s case, he registered NOLLYWOOD in connection with “Advertising; business management; business administration; office functions” (class 35) and “Telecommunications” (class 38).

 

What is the effect of the Class 35 & Class 38 registrations? It means that you can’t set up businesses that provide the services listed under these classes (i.e. advertising, business management, business administration, telecommunications) and use the word Nollywood in the business name or trademark of your company. Mr. Opara can set up Nollywood Telecoms or Nollywood Business Managers and it would be fine. It does NOT mean that anyone operating in our Nollywood needs his permission to use the word or that the industry as a whole is held to ransom by Mr. Opara.

 

Could he have registered the trademark in Class 41? The services listed under class 41 are “Education; providing of training; entertainment; sporting and cultural activities”. This is the class that would have given Nigerian practitioners real concern, as it would have meant that trading in the US as movie industry practitioners under the name Nollywood, would have infringed Mr. Opara’s registration. However, given the popularity and famousness of the term “Nollywood” worldwide and the industry it represents, it is unlikely that the USPTO would have agreed to a registration in this class. And if they did, it would be fairly easy to instruct a US attorney to challenge such a registration as the chances of getting it revoked are very high.

 

Should an actor or the Guild of Actors/Directors register Nollywood as a trademark in Nigeria? No. First of all, a trademark cannot be descriptive of the goods or services it brands. So, for example, you cannot register “PURE WATER” as a trademark to brand drinking water. In the same vein, “Nollywood”, which has come to mean the movie service industry segment of the Nigerian entertainment sector cannot be registered as a trademark for entertainment services, in my opinion. Secondly, the whole point of a trademark is to distinguish your goods and services from those of others. So even if the Nigerian Trademarks Registry somehow approved the trademark application, it would be a trademark of very little value, since the entire industry already refers to itself as Nollywood.

 

Did Nicholas Opara miscalculate or does he have something up his sleeve? My mentors in the legal profession taught us not to comment on speculation so they would probably be disappointed by this paragraph. However, the cynic in me thinks he probably tried class 41 initially and was refused, so he settled for the next best classes. Nonetheless, 35 and 38 registrations will not affect 41 services, especially if it’s clear that you didn’t invent the word. On the other hand, it is quite plausible that he wants to deploy Nigeria-centric services in the US and I guess this isn’t a bad thing. It wouldn’t be out of place, for example, to have Hollywood Drycleaners or Hollywood Barbers in Nigeria. If his plan is something more along those lines, then all the very best to him.

 

 

Hopeless Nation, Hopeful People: Commentary From South Sudan

In an earlier post today, I remarked, with regard to levels of certainty about Nigeria’s “nearing implosion that –

People talk about getting [tourist] visas for everyone in their family and all, but (1) I don’t think the usually congested route to MMIA would suddenly open up for us to flee sedately if that day of crisis came; and (2) that still sounds like their hedging, meaning either that they/we do not really think things are that bad, or that this almost-certain catastrophe is not quite certain to happen.

A reader with the benefit of similar experience in South Sudan posted a comment directly relevant to this and has given me permission to reproduce the comment in full, below. What is clear is that escaping will not be as simple as booking a ticket and taking a leisurely drive to the airport.

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Many people are quite clueless about what it takes to evacuate their families. They assume that because they can afford between 1-3 international holidays a year a UK/US visa will somehow get them out of here if shit hits the fan. I lived in South Sudan the last few years and from practical experience, this is how it works.
Living abroad is expensive and we don’t want to pack up and leave until we are absolutely sure, besides someone has to work to fund the hasty exit. So no one ever knows/ wants to believe that shit will hit the fan until it does. The people who know already have their families tucked away somewhere safe and can afford to keep them there indefinitely. Commercial flights will stop running. Expats and diplomats will be the first out. Then the truly wealthy. Then non-nationals. We will not be able to go online and book tickets and then trot off to pay at the banks. Cash will be the only language spoken and even then, given our population there will probably not be enough private exorbitantly priced planes to get us out. We will be forced to leave most of our belongings behind.

Shit will get real when there’s no petrol cos the army needs it all. No work, no salary. No banks. No electricity. No food to buy even if you have money. Massive inflation.

Anyone who wants a split (which would never be peaceful) does not realise how devastating war can be. How it feels to lose EVERYTHING. Nigeria has to work. We have to make it work.

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Let us therefore not lose hope. And let us then do what we must to make the country work.

Hopeless Nation, Hopeful People

A question that’s plagued me since social media journalism and analysis attained near-mainstream popularity is: Why, if you’re so convinced that Nigeria is doomed, are you not hightailing your ass out of here? If the consensus from the emerging intelligentsia is that we’re on the brink of an apocalyptic implosion, should we not be doing everything in our power to ensure that we escape before the tribulations start?

 

People talk about getting [tourist] visas for everyone in their family and all, but (1) I don’t think the usually congested route to MMIA would suddenly open up for us to flee sedately if that day of crisis came; and (2) that still sounds like their hedging, meaning either that they/we do not really think things are that bad, or that this almost-certain catastrophe is not quite certain to happen.

 

Okay, fair enough, without boring you with the dismal indices with which you are already familiar, the prognosis does not look too good. But if we’re staying put, it’s either because we ‘ve decided we have nowhere else to go, or we secretly know (or hope) that things will get better. And even if we don’t believe things will get better, since we’re stuck, it’s probably in our best interests to make things get better. I mean, we’re stuck here anyway, so we do we have to lose?

 

In the midst of my musings, I have found some suggestions in music. And while the 2 songs I want to share are from the same “Save Nigeria” genre as Veno Marioghae’s Nigeria Go Survive, Kingley Bucknor’s Let’s Dave Nigeria, and King Sunny Ade’s Nigeria Yi Ti Gbogbo Wa Ni, these two songs have struck a different chord for me (yes, pun intended).

 

The first song is Ese Peter’s The Prayer.

 

 

Ese sings:

 

May all of your days be as bright as the sun

And all of your fears all fade with the dawn

And when the storms come, they will come like a flood

But not for long, no, not for long

 

May all of our children reach out to the wind

Find the magic, like kings and queens

And when the sky falls, it will fall like a war

But not for long, no, not for long

 

The second song, which resonates even more deeply for me, is Timi Dakolo’s Great Nation.

 

 

Timi sings about us taking a stand and healing our land. He sings further:

 

We’re all we have, we’ll defend our land

We believe in this nation, and we know we’ll get there

We’re all we have, we’ll defend our land

We believe in Nigeria and the promise she holds

And that one day we’ll shine like the sun

We’re a great nation

 

For me, these songs are different from the previous Save Nigeria songs because, rather than the usual do-your-part-and-I’ll-do-mine tack, they inspire hope. Now, it might seem a huge U-turn for this logic merchant to suddenly start peddling hope, but all will truly be lost once hope is lost. Nothing hopeless is worth fighting for. Of course, hope will not result in overnight changes to this system, but guess what? There will be no overnight changes anyway. They will take time and will require sustained pressure on government, as well as an ethical revolution on our part.

 

If we’re not running away, realising that “we’re all we have” and making the choice to “defend our land” sounds like a good alternative to me. You?