By Dapo Akinrefon, Abdulwahab Abdulah, Godwin Oritse, Olasunkanmi Akoni & Ikechukwu Nnochiri
ABUJA—President Muhammadu Buhari’s decision to posthumously confer the highest honour in the country on the acclaimed winner of the annulled June 12, 1993, Presidential election, Chief M.K.O. Abiola, has continued to generate ripples within the judicial circles.Justice Alfa Belgore( rtd)
A frontal attack by a former Chief Justice of Nigeria, CJN, Justice Alfa Belgore, who described the President Buhari’s action as illegal, seemed to have opened the floor for a continuing legal debate.
While some senior legal practitioners that spoke with Vanguard on the issue, backed Belgore’s position, others held contrary views.
Belgore who was CJN from 2006-2007, had reportedly contended that the national honours could not be awarded posthumously, much less the GCFR, which is the highest honour in the land.
It was his argument that under the 1963 National Honours Act, only soldiers or other servicemen could be awarded posthumous medals for their bravery.
However, among those that carpeted Belgore were chairman of the Presidential Advisory Committee on Anti-corruption, PACAC, Prof. Itse Sagay, SAN; newly appointed spokesman for the Buhari campaign organization and a Senior Advocate of Nigeria, Mr. Festus Keyamo, SAN; Human rights lawyer, Femi Falana, SAN, Mr. Jiti Ogunye, and Mr Wahab Shittu.
Those on the side of the former CJN include Ahmed Raji, SAN, Oghenovo Otemu and Caleb Muftwan, a Kaduna-based lawyer.
Keyamo insisted that nothing in the law expressly barred President Buhari from conferring national award on Nigerians who were deserving of the honour before their demise, saying “nobody should try to throw any spanner on the works” of the President.
He said such award could be given on the basis of “political expediency”.
Maintaining that President Buhari was right in his action, Keyamo said: “I want to respectfully disagree with Justice Alfa Belgore. There is no where in the constitution that it was expressly prohibited that posthumous awards cannot be conferred. Nowhere in the constitution was it equally expressly stated that the President is denied the right to confer such award posthumously. The law is that what is expressly prohibited is deemed to have been allowed.
“The National Honours Act did not say that it cannot be posthumously awarded or that it is totally prohibited, there is no such provision. The Act actually listed the requirement for conferment and if someone met all the requirements before the person died, the award can be conferred on such person posthumously.
“Posthumous award is given to someone who was deserving of an award but by virtue of certain circumstances could not receive it. In other words the person met the criteria. It presupposes that the person met the requirements but for certain reason either political or so, could not be conferred with the award. There is absolutely nothing wrong at all.
“The other thing is that political expediency goes beyond legality. That is why it is possible that people who have committed crimes against the state, but because of national integration and peace in the country, even when it is clear that they committed an offence or have been convicted by a court of law, the President has the powers to grant pardon or wave aside all the things the person had done in order for there to be peace in the country.
We have had instances in the country before where people committed treason and they fled the country and when a new government takes over, those people must have been tried in the past, convicted in absentia or their charges could still be pending.
“There may be no law for instance that gave the President the power to set aside the conviction or charges or to forgive them, but because of political expediency we have seen situations where a new government will just grant general amnesty to such people just for national integration and peace. So the point I am making at the end of the day is that political expediency is not about legality. Its about justice and fairness and not about strict legality.
“Lastly, this whole thing that we are talking about now is such an inconsequential part of this whole thing about our democracy day. I don’t think we should even give vent to any such opinion because we know what we suffered.
“This is the first time everybody, both friends and foes of the President have come to one table and said he deserved some accolades. Even top critics of Buhari have come out to say he has done well, so nobody should try to throw any spanner on the works”.
He’s pursuing technical law, abandoning justice—Sagay, SAN
Chairman of the Presidential Advisory Committee on Anti-corruption, PACAC, Professor Itse Sagay, SAN, lampooned the former CJN for pursuing technical law and abandoning justice.Sagay, SAN
Sagay said: “Is it proper for a man of his (Belgore) age and who has been a Chief Justice of Nigeria to throw cold water on something that all people of good faith are rejoicing about and giving glory to God that it has happened? Is it right? Should he now go about looking for some fault or error to throw into the spokes of the wheel? Is that a proper role for a man of his background and eminence? So, I blame him for that.
“I have not read the provision but I am told by those who have read it that immediately after that subsection, there is another subsection which gives the President the right to override that invitation. I have not read it but I have been told. Now, if that is correct, then, I do not see what the former Chief Justice is complaining about.
“I also want to add that we need to be careful in this country, that when something is positive and right, particularly when a great wrong is done before, it is the duty of every inhabitant of this country to find a way of contributing to that good result and not pouring cold water on it. This man is pursuing technical law and abandoning justice. He is going for narrow interest and abandoning the big picture. It is not befitting of a man of his age and experience.”
What the President did was perfectly in order–Wahab Shittu
“There is nothing the President has done that is not in order, because he is vested with executive powers under the constitution, and part of his executive powers is what he has exercised. It is within his prerogative to decide who to honour and dishonour. Whether he chooses to honour someone who is alive or dead is his absolute discretion.
“I do not see that he has contravened any law. With his executive power, he can give such award to whom he feels deserves it and he can give it post-posthumously. As regards the chairman of the award committee, Hon Justice Belgore, he on his own is an appointee of the President.
”President Mohammed Buhari is the President of the Federal Republic of Nigeria and commander in chief, his office is recognised by the constitution and endowed with executive powers. I think the President ought to be saluted rather criticised for giving the awards.”
Legal validity of posthumous awards and June 12 Holiday—Falana, SAN
In his reaction, human rights lawyer, Femi falana, SAN, said: “The Honourable Justice Alfa Belgore, a retired Chief Justice of Nigeria was reported to have questioned the legality of the decision of President Buhari to confer posthumous awards on Chief M. K. O. Abiola and Chief Gani Fawehinmi SAN.Falana
Curiously, his lordship did not refer to any section of the National Honours Act or any other law that has been violated by the President. In like manner, some persons have alleged that the June 12 holiday declared by the President is illegal on the grounds that the approval of the National Assembly was not sought and obtained.
“With profound respect to the Honourable Justice Alfa Belgore, the National Honours Act has not prohibited or restricted the powers of the President to confer national honours on deserving Nigerian citizens, dead or alive. No doubt, paragraph 2 of the Honours Warrant made pursuant to the National Honours Act provides that “a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose…”
But paragraph 3 thereof has given the President the unqualified discretion “to dispense with the requirement of paragraph 2 in such manner as may be specified in the direction.” Therefore, since the national awards conferred on Chief Abiola and Chief Fawehinmi cannot be received by them in person the President may permit their family members to receive same on their behalf.
“Furthermore, section 2 (1) of the Public Holidays Act stipulates that in addition to the holidays mentioned in the Schedule to the Act, the President may appoint a special day to be kept as a public holiday either throughout Nigeria or in any part thereof. It is crystal clear that the President is not required by law to seek and obtain the approval of the National Assembly before declaring a public holiday in the country.
“In view of the combined effect of the National Honours Act and the Public Holidays Act the legal validity of the well deserved awards and the historic holiday has not been impugned in any manner whatsoever.”
No provision prohibiting post-humous award–Jiti Ogunye
Jiti Ogunye, human rights and constitutional lawyer said: “There is no provision in the National Honours Act, Cap N43, Vol. 11, LFN , 2004 which supports the proposition or view that a national award cannot be made post humously in Nigeria. There is no specific provision in the Act prohibiting such post humous bestowal or investiture.Jiti Ogunye
On the contrary, a careful perusal of the provision of Article 3 (3) of the Act clearly indicates that the President may dispense with the provision of Article 3 (2) of the Act , which requires that the recipient of the award appears in person at an investiture. Article 3(3) says that the President ” may direct that that person shall be appointed to the rank in question in such a manner, as may be specified in the direction ”
“In other words, the physical presence of the person may be dispensed with, if situation and circumstances warrant it. We contend in this regard that a Nigerian citizen, be he a soldier or a leader , held in enemy territory , if and when Nigeria is at war with the country holding such a person may be presented a national award , through a representative or next of kin, in his absence . Thus, physical appearance at the investiture is not compulsory , if such a presence is waived in the instrument nominating the person for the award.
It is , therefore, our considered view, that if the physical presence of a nominated receipient of the award at the investiture is not mandatory or compulsory for the award to be given , a deceased Nigerian , posthumously can be nominated to receive the award, in the absence of any specific article in the law prohibiting such investiture .”
Similarly, Mr Ugwuzor Adindu, former Head of Chambers to Gani Fawahimni, SAN, said: “It cannot be illegal. The president made a declaration, it is an executive declaration. He tried to right a wrong perpetuated in 1993. As a president, he chose to honour June 12 as opposed to the May 29 he was inaugurated. That has been the demand of the human rights group.
”So all he needs to do now, is for it to be gazetted as an executive order. If it requires ratification by the National Assembly, all he needs to do it to gazette it as an executive bill and send to the National Assembly for passage.
”I am happy that what is important is that June 12 and the symbol of June 12, including the Vice President, who is still alive had been recognised.
”What that means is that Abiola has been recognised as the president that was never sworn in. The president should go ahead to pronounce it when conferring the award on the family and that will go a long way to provide sanity to the polity and the entire world will see Nigeria as a country that is governed by the principle of democracy.
”Justice Belgore sued Abiola in Concord for libel. Gani Fawehinmi was lawyer to Concord. Gani was detained at Bauchi prison in 1996, remember that the case started in 1994. It was when both of them (Gani and Abiola) were in prison the matter was resolved. Gani was in Prison from January to November. Is that his (Belgore) extension of the grievance or was it really that some people are not happy with the announcement of the President?
”The President in my understanding, opinion and reasoning has done the right thing. This is what had expected. The president has served the political class for three years, this is time to serve the poor masses. This is good news to us.”
But throwing his weight in support of the former CJN, Mr. Ahmed Raji, SAN, said: “Justice Alfa Belgore is major pillar and a big voice in the legal circle. He had a cherished legal career which saw him as the topmost judicial officer in this country. We should listen to him. I am too small to differ from him.”
Similarly, Oghenovo Otemu, a constitutional lawyer, said: “I commend the courage of the President to look into what actually happened after Abiola won the June 12 presidential election and it was annulled and no government deemed it wise to do something about it since then. For President Buhari to have even think about it, I commend him.
“However, that is not to say that he should in his bid to please the people, take steps that are illegal.
“Our laws as at today do not allow for posthumous conferment of national honours. I think the first thing would have been to amend the laws. The fact that the gesture is commendable does not make it legal. For the president to properly confer GCFR on late Chief MKO Abiola, the laws must be properly amended.
“You will recall that the argument came up with regards to the medical doctor that died during the Ebola epidemic. Pressure for her to be conferred with a posthumous national honor was defeated by the illegality of such action.
“Secondly, declaring June 12 as democracy day is another aspect. If May 29 is no longer the democracy day, then when will President Buhari hand over, is it on June 12?
“I believe the National Assembly will have to visit the issue to make the June 12 date valid. A presidential declaration cannot and does not have any force of law. May 29 is still recognised by our law as the official handover date.”
Barrister Caleb Muftwan, a Kaduna-based lawyer in his reaction said: ”I totally align myself with the law regarding the national honours award as succinctly enunciated by Justice Belgore. The intention behind the move is questionable. While June 12 is a watershed in our national history, I doubt if this government can gain any political capital out of this move.”