Rejigging the “Commiseration” Script

 

Abati Statement

This morning in Potiskum, Yobe State, a suicide bomber killed at least 50 secondary school students during their school assembly. There was no word from the Presidency until a few moments ago, when the President’s Special Adviser on Media and Publicity, Dr. Reuben Abati, released a statement on his blog, here.

 

The statement sounds a lot like the well-worn one that the Presidency has released over the years (“condmens”, “dastardly”, “heinous”, “cowardly”, and so on). This seems to have removed almost all sense of feeling from these statements. Perhaps the Presidency is also a little numb? And was this not serious enough for the President to address the nation? A few hours after the incident, this was the post on Dr. Abati’s twitter feed –

 

 

What followed the publication of the statement on Potiskum was that people who had been itching for the President to speak on the matter, got a little irritated. It also did not help that splashed across the top of the statement from Dr. Reuben Abati, was an image from Boko Haram’s propaganda album.

 

The script needs to change. Here’s my attempt…

************** *********** *********** *********

President Goodluck Ebele Jonathan extends heartfelt commiserations to the Government and people of Yobe state on the death of many students in a bomb attack on Potiskum earlier today.

 

Dear Nigerians, it is with a very heavy heart that the President conveys his deepest sympathies at the horror that that took place in Potiskum this morning.

 

President Jonathan also conveys his deepest sympathies to all parents who lost their beloved children in the heinous attack on the Government Science Secondary School which appears to have been carried out by a suicide bomber.

 

President Jonathan, a parent himself, shares in the grief and sorrow of the Government and people of Yobe State, the parents of our children cut down in their prime and, indeed, all well-meaning Nigerians in our joint loss. No parent should ever have to bury their child, and the circumstances of the senseless brutality, an apparent suicide bombing, make the situation even more reprehensible.

 

The President condemns the dastardly murder of the students on their school’s assembly ground as they prepared to begin another week of study in pursuit of a better life for themselves and their families. He assures the grieving parents and people of Yobe state that no matter how long it takes, the Federal Government will ensure that all those responsible for the senseless murder of so many promising youngsters and the continuing acts of terrorism across the country are brought to justice and made to pay for their atrocious crimes.

 

The President condemns this barbarity and the ongoing siege laid against the people of Nigeria by those thirsty for war in a land of peace. These children were guilty of nothing, except taking steps to secure their education and a better life for their families. He assures the people of Yobe State and their brothers and sisters in all our other 36 states and the Federal Capital Territory that no matter how long it takes, the Federal Government will ensure that every single perpetrator behind today’s senseless murder will face justice. Already, further to the President’s directions, the Police and the State Security Service are doing…

***************

God help us.

Sanusi’s Suspension: Right or Wrong?

Better Days... (L-R): Ngozi Okonjo-Iweala, Sanusi Lamido Sanusi, Goodluck Jonathan

Better Days…

Today, the 20th of February 2014, the President’s Spokesperson, Dr Reuben Abati, announced that President Jonathan had suspended Sanusi Lamido Sanusi, Governor of the Central Bank of Nigeria, and had appointed an Acting Governor in his place. Sanusi’s first tenure of 5 years ought to have ended in a few months’ time and he was widely reported not to be interested in a second term, to which he would ordinarily have been entitled.

The announcement of his suspension follows recent reports of turbulence between the erstwhile CBN over several issues, including, allegedly, Sanusi’s insistence on the existence of a huge financial remittance deficit by the Nigerian National Petroleum Corporation.

Does the President have the power to suspend or otherwise remove the Governor from office? Well, sorta, kinda. Section 11 of the CBN Act of 2007 states as follows –

11(1) A person shall not remain a Governor, Deputy Governor or Director of the [Central] Bank [of Nigeria] if he is –

(a) a member of any Federal or State legislative house; or

(b) a Director, officer or employee of any bank licensed under the Banks and Other Financial Institutions Act.

11(2) The Governor, Deputy Governor or Director shall cease to hold office in the Bank if he –

(a) becomes of unsound mind, or owing to ill health, is incapable of carrying out his duties;

(b) is convicted of any criminal offence by a court of competent jurisdiction except for traffic offences or contempt proceedings arising in connection with the execution or intended execution of any power or duty conferred under this Act or the Banks and Other Financial Institutions Act;

(c)  is guilty of a serious misconduct in relation  to his duties under this Act;

(d) is disqualified or suspended from practising his profession in Nigeria by order of a competent authority made in respect of him personally;

(e) becomes bankrupt;

(f)                is removed by the President:

Provided that the removal of the Governor shall be supported by two-thirds majority of the Senate praying that he be so removed.

(3) The Governor or any Deputy Governor may resign his office by giving at least three months’ notice in writing to the President of his intention to do so and any Director may similarly resign by givingat least one month’s notice in writing to the President of his intention to do so.

(4) If the Governor, any Deputy Governor of Director of the Bank dies, resigns or otherwise vacates his office before the expiry of the tem for which he has been appointed, there shall be appointed a fit and proper person to take his place on the Board for the unexpired period of the term of appointment in the first instance if the vacancy is that of –

(a) the Governor or a Deputy Governor, the appointment shall be made in the manner prescribed by section 8(1) and (2) of this Act; and

(b) any Director, the appointment shall be made in the manner prescribed by section 10(1) and (2) of this Act.

If we look at 11(2)(f), which was highlighted, I believe we can conclude that the President has taken a legitimate first step in removing Sanusi from the position of Governor. However, the removal is what we lawyers like to describe as “inchoate” until it is ratified by a two-thirds majority of the Senate. Can Senate President, David Mark, deliver a two-thirds majority to the President, to rubber-stamp Sanusi’s removal? One is confused with all the defections and cross-defections in the National Assembly of late, but we will just have to wait and see.

Abati, Our Sophisticated Ignorance & A Dollop of History

Reuben Abati recently outperformed the 2-man (or 1-man/1-woman) interview panel at Channels TV for the second consecutive time. Either his mind was too nimble for theirs or, in the face of attacks of “unprofessionalism” over the oga at the top saga, they chose to be extremely professional with him. In either event, he got away with justifying the presidential pardon of a convicted looter of public funds, someone who, rather conveniently or coincidentally or both, the president has referred to as his political benefactor. Dr. Abati also accused us, who are disgusted by the pardon, of “sophisticated ignorance”. Thankfully, Simon Kolawole has since pointed out Abati’s “sophisticated amnesia” but that isn’t the focus of this piece. I am curious about this business of presidential pardons and eager to cure my ignorance, sophisticated or otherwise.

Anyone familiar with my writing will know by now that I have a penchant for querying the propriety of administrative acts from the perspective of the jurisprudence behind the law that empowered the acts (Abati even ventured into the jurisprudence of punishment in his interview, a topic I previously visited here and to which we shall return presently). So, pardons, where did they come from?

The origins of the presidential pardon lie in the Prerogative of Mercy of the English monarch, being recorded in law as early as 668 AD. Initially, the King’s power to pardon was unfettered but by the reign of King Charles II, parliament excluded impeachments from the previously unlimited scope of offences that could be pardoned by the Crown. At a time the King, upon the declaration of war, as a ploy to swell the number of his troops, would pardon everyone who had committed a homicide or a felony, on the condition that they served a year for free in the army. However, over the centuries, it was obvious that the power was open to abuse, particular in relation to the wealthy or connected members of society, and parliament tried many times to curtail it. They only succeeded in the time of Charles the II because he pardoned the Treasurer/Chief Minister (today’s ‘Chancellor/Prime Minister’?), the Earl of Danby, who was about to be impeached. Parliament declared the pardon illegal but Danby himself resigned shortly afterwards, to avert a constitutional crisis.  Forgive the history lesson; on to America, whose constitution we adapted.

In this commentary on the constitutional history of the prerogative of mercy, the writers note that when the power to pardon first evolved, the punishments for many crimes was death, making the power not only useful, but necessary. By the time the American constitution was being framed, things were not so dire. However, it was still thought that the power to pardon was necessary for those exceptional circumstances in which the legal system failed to yield a morally or politically acceptable result. This paper here says the following about the positive use of the power to pardon, by American presidents:

“Pardon proved its practicality right away, in helping the president deal with a series of rebellions and invasions in the early years of the Republic: “The pardon could bring rebels back into the fold, or it could repopulate the army by restoring deserters to service.”  President Lincoln issued pardons throughout the Civil War to deal with desertion and draft evasion on the Union side, and to undercut the rebellion in the Border States. Presidents Johnson and Grant used the power to clean up afterwards, as did Presidents Theodore Roosevelt, Coolidge, Harding and Truman in connection with later wars.  More recently, Presidents Ford and Carter both issued amnesties to draft law violators and military deserters from the Vietnam era. Like the Nixon pardon, these amnesties represent classic uses of the power to reconcile national differences.

So, we see a picture emerging. Show grace where the outcome at the courts is clearly unconscionable, readmit a class of outlaws or outcasts in furtherance of national healing. Furthermore, since 1898, when President McKinley signed the Clemency Rules, applications for clemency (or pardon) have been made to the Justice Department’s pardon attorney and, with only very few exceptions, presidential pardons have been granted on the recommendation of pardon attorney (said recommendations being signed by the attorney-general).

Alright, enough of the history. Let us compare the sections of law that grant the president the power to pardon. Section 175(1)(a) of the Nigerian constitution says:

(1)    “The President may –

  1. Grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions;”

Article II Section 2 of the US constitution says, with relevance to the prerogative of mercy: “[The President] shall have power to grant Reprieves and Pardons for offenses against the United States, except in the case of impeachment.”

Thus, while in the United States the president cannot pardon anyone who has been impeached by Congress, in Nigeria, contrary to the position in our judicial forbears, the president’s power to pardon is without limit. Impeachments are fairly rare, however, so perhaps not much should be read into this.

In his paymasters’ defence, Abati rightly points out that pardons are always controversial (see here for a list of controversial pardons) and cites President Clinton’s controversial last-day-in-office pardons in support of his argument. However, unlike Abati’s principal, who has chosen to hide behind media aides, President Clinton published an extensive explanation of those considered the most controversial of the pardons. Clinton points out that the recipients had to agree to be fined in a similar fashion to others similarly accused, in the event that prosecutors found similar circumstances to apply.

Abati says that the convicted looter pleaded guilty, served time, forfeited property and was therefore worthy of being pardoned. He omitted to say that the looter jumped bail in London in 2005 and is still wanted there to respond to money-laundering charges. Or that he was impeached from office, which would be red flag in the UK and the US. We may be sophisticatedly ignorant but we are very clearly not stupid.

The crux of it all is this: given the jurisprudence of the presidential power to pardon, the severity of the offences for which the convicted looter was punished, our country’s much vaunted war on corruption and language with which Abati himself described the looter in 2005, can a charge of sophisticated ignorance be substantiated? One can try, as Abati did, but only very disingenuously. Perhaps sophisticatedly so, even.